Territorial Court

R. v. Bradley Thomas KIRBY       						     2010 NWTTC 15
File: T3 CR 2010 000572


IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES


IN THE MATTER OF:


HER MAJESTY THE QUEEN


- and -


BRADLEY THOMAS KIRBY




REASONS FOR SENTENCE

of the

HONOURABLE JUDGE B. E. SCHMALTZ






Heard at:				Yellowknife, Northwest Territories
					October 6 and 14, 2010

Reasons filed:			October 18, 2010
					

Counsel for the Crown:		A. Paquin

Counsel for the Defendant:		S. Shabala


(Charged under s. 267(b) of the Criminal Code)

IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:

HER MAJESTY THE QUEEN

- and -

BRADLEY THOMAS KIRBY
______________________________________________________________________


I.	INTRODUCTION

[1]	Bradley Kirby pleaded guilty to assault causing bodily harm.  The victim of the offence was Shelly Wolki, his common-law partner at the time.

[2]	The Crown suggested a sentence in the range of ten to twelve months would be an appropriate sentence.  Defence counsel urged me to consider a conditional sentence, or in the alternative submits that a sentence in the range of six to eight months would be appropriate.  After hearing submissions, I reserved my decision in order to consider the matter further.

[3]	For the reasons set out below, I have decided that a conditional sentence would not be appropriate in this case.  For the offence of assault causing bodily harm there will be a sentence of 12 months jail, followed by 3 years probation.



II.	FACTS

[4]	On August 8, 2010, at about 3:00 a.m. the RCMP received a call from Shelley Wolki’s brother who reported that his sister had come to his door and she had been “kicked up”.   The RCMP went to the location and found Ms. Wolki between two houses, her shirt was ripped, and her face was extremely swollen and bruised.

[5]	Through investigation it was determined that on August 7, Bradley Kirby and Shelly Wolki had been at the bar drinking and returned home; they lived with Bradley Kirby’s parents.  The couple began to argue about who the father of Ms. Wolki’s nine month old son was; this was an ongoing issue between the two, as Bradley Kirby does not believe he is the little boy’s father.

[6]	The argument turned violent, with Bradley Kirby essentially beating Ms. Wolki; he was kicking and punching and pushing Ms. Wolki, he choked her, he ripped off her necklace causing a dark red mark on her neck.  Bradley Kirby punched Ms. Wolki in the eye, pulled her hair, he was banging her head on the floor, kicked her in the rib cage, her shirt was ripped during the beating.  He finally dragged her outside and threw her down the stairs.  At some point, Bradley Kirby’s father attempted to stop Bradley Kirby but was unable to.

[7]	Ms. Wolki was taken to the hospital and released later that morning; she had bruising and swelling on her face, both arms and legs, her shoulder and back, her neck; she had golf ball sized lumps on her head either from being kicked in the head, or from having her head banged into the floor.

[8]	Photographs of Ms. Wolki taken the morning of the assault, as well as the following day, were entered on this sentencing; the photographs show the severity and the extent of Ms. Wolki’s injuries.
 [9]	Bradley Kirby and Shelly Wolki had been in a common-law relationship for approximately four years.


III.	SENTENCING

[10]	Bradley Kirby was convicted in 2007 of assaulting Shelly Wolki, receiving a suspended sentence.  This is now the second time he has been convicted of assaulting his partner.  It is always a sad situation when any woman is assaulted by her partner, someone who is supposed to love and care for her.  A relationship between people who choose to share their lives should be based on trust.  Bradley Kirby breached that trust in a horrendous and violent way on August 8.

[11]	R. v. Highway, Umpherville and Brown, [1992] A.J. No. 432, is an important case from the Alberta Court of Appeal dealing with spousal assaults.  That case recognized why the fact that a person has assaulted his or her spouse, is a breach of trust and worse than assaulting a stranger or a person one is not in a spousal relationship with.  It can have devastating and long lasting effects on a victim:

Men who assault their wives are abusing the power and control which they so often have over women with whom they live.  The vulnerability of many such women is increased by the financial and emotional situation in which they find themselves, which makes it difficult for them to escape.  Such women’s financial state is frequently one of economic dependence upon the man.  Their emotional or psychological state militates against their leaving the relationship because the abuse they suffer causes them to lose their self-esteem and to develop a sense of powerlessness and inability to control events.  (page 6)

[12]	Highway, Umpherville and Brown further recognized that the main sentencing objectives when dealing with a spousal assault are deterrence and denunciation – as the Court said to “express the community’s wish to repudiate such conduct in a society that values the dignity of the individual.” (page 6)

a)	Aggravating Factors:

[13]	Bradley Kirby’s criminal record is aggravating.  This is now the second time he has been convicted of assaulting Shelley Wolki.  When I consider the circumstances of this offence, I am afraid that one day Bradley Kirby will seriously hurt, or even kill someone.

[14]	Hearing these circumstances in the sterile manner in which they are presented in a court room causes concern, but one can only imagine how Shelley Wolki must feel, how being beaten and bruised, thrown down the stairs, must make her feel.  What sort of fear must she live her life in?  Ms. Wolki has to be protected.

[15]	The duration of this beating is also aggravating.  This was not a single blow, not a loss of control in a fit of anger; this was a beating that lasted some time.

[16]	Whether or not Mr. Kirby was attempting to control Ms. Wolki, or perhaps punish her, I do not know.  The couple was arguing over who the father of Ms. Wolki’s son was, but this had been an ongoing issue, so if this was the catalyst for this beating, Ms. Wolki continues to be in danger if Bradley Kirby does not get some help or resolve this issue in his mind.  It was not the first time Bradley Kirby assaulted Shelley Wolki; in 2007 the child was not born, so there must be other reasons for the violence.  Whether it be control, power, a sense of possession or entitlement, I do not know, but no matter what Mr. Kirby’s reasoning or rationale is for beating his partner, it will never be tolerated.  She is not his property, she is not his to control, to abuse.


b)	Mitigating factors:

[17]	Bradley Kirby has pleaded guilty to this offence, and for that he must be given credit.  I consider the guilty plea a very significant mitigating factor.  By entering a guilty plea to this offence, Ms. Wolki has been spared the stress and trauma of having to testify on this matter, of coming to court and reliving that night.

c)	Principles of Sentence

[18]	Sentencing has to contribute to respect for the law and the maintenance of a just, peaceful, and safe society.  The fundamental principle of sentencing is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[19]	As I said earlier, the most important sentencing objectives in this case are deterrence and denunciation.  The seriousness of domestic violence can’t be understated.  In Highway, Umpherville and Brown, the Alberta Court of Appeal quoted Wilson, J.’s comments from R. v. Lavallee (1990), 55 C.C.C. (3d) 97 (S.C.C.):

The gravity, indeed, the tragedy of domestic violence can hardly be overstated.  Greater media attention to this phenomenon in recent years has revealed both its prevalence and its horrific impact on women from all walks of life…

… Long after society abandoned its formal approval of spousal abuse, tolerance of it continued and continues in some circles to this day.

Fortunately, there has been a growing awareness in recent years that no man has a right to abuse any woman under any circumstances. Legislative initiatives designed to educate police, judicial officers and the public, as well as more aggressive investigation and charging policies all signal a concerted effort by the criminal justice system to take spousal abuse seriously.

Wilson, J.’s comments were made in 1990, twenty years ago.  Sadly, I am not sure that the “gravity” of spousal abuse she referred to in 1990 is any less so today.

[20]	If somehow the sentence I impose today could promote a sense of responsibility in Bradley Kirby, and acknowledgment of the harm done to the victim and to the community, that would be worthwhile, and I recognize that that is a goal of sentencing.  I wish I were more confident that such a sense could be instilled in Mr. Kirby.  If it could, then the public in general and Ms. Wolki in particular would be safer.

[21]	But Mr. Kirby’s words last week, when asked if he had anything to say cause me concern.  Mr. Kirby said this was ‘not him’, that he was not a violent person, and that Shelley Wolki was the only person he had ever hit.   When one looks at the pictures and knows that Mr. Kirby is responsible for those injuries to Ms. Wolki, it becomes abundantly clear that Mr. Kirby’s words that he is not a violent person, and the pictures and his record do not coincide.  Bradley Kirby has to realize that he did beat Ms. Wolki; that he did throw her down the stairs, and he has been violent with her before.  Mr. Kirby is a violent person.  Mr. Kirby may have problems or issues to deal with and hopefully he is sincere in wanting to get some help to deal with them.  But Mr. Kirby has to realize that his issues will not be resolved with no effort on his part, and he cannot simply deny that he behaved as he did, nor deny that assaulting or abusing one’s partner does not amount to violence; Mr. Kirby cannot continue to deny what his behaviour reveals about his character.

[22]	I also must consider the principle of parity, which is that similar offenders in similar circumstances should receive similar sentences.  In Highway, Umpherville and Brown, the circumstances of Mr. Highway were very close to that of Mr. Kirby:  Mr. Highway had a prior conviction for assaulting the same victim for which he had received a sentence of 30 days.  The case that the Court of Appeal was considering involved a second spousal assault, the facts being:
August the 10th, 1991, during a domestic dispute between the accused and his common-law wife [B.C.], the accused punched [B.C.] about the head and upper body approximately ten separate times.  The accused kicked [B.C] in the lower extremities approximately eight times.  The accused choked [B.C.] to near unconsciousness, was squeezing her throat with his hands.  While choking [B.C.], [B.C.] stepped on some broken glass sustaining a deep cut to her left foot which required sutures.  And [B.C.] sustained the following injuries as a result of the incident:  Swollen left eye, sore neck and back, bleeding nose, severe bruising to her throat, a cut to the inside of her mouth, multiple body bruising.

When [B.C.] attempted to escape and flee the apartment, the accused told her that if she contacted the police he would kill her.  [B.C.] was taken to the Charles Camsell Hospital…

The sentencing judge fined Mr. Highway $500.00; the Court of Appeal allowed the Crown’s appeal and increased the sentence to 18 months in jail. (pages 3 and 8)

[23]	I also have to consider the circumstances of Mr. Kirby.  He is 32 years old, and has not had an easy life.  However, from the Pre-Sentence Report he does have a loving and supportive family and since he has returned to Inuvik, he has a good employment history.

[24]	I also take into account what is said in the Pre-Sentence Report and has been repeated here in Court by Mr. Kirby, that he does want to rehabilitate himself, and wants to take programs and counseling.  I hope his intentions are sincere, but I cannot ignore the fact that Ms. Wolki was the victim of both offences of violence now on his record.

[25]	There is no question in my mind that a jail sentence is warranted in these circumstances.  Counsel for Mr. Kirby urges me to impose a conditional sentence.

d)	Conditional Sentence

[26]	A conditional sentence is a custodial sentence, but it is a custodial sentence that is served in the community under strict conditions.  It is generally a more lenient sentence than a jail term of the same duration.  House arrest does not have the same punitive effect that a jail sentence has.

[27]	A conditional sentence can be imposed for an assault causing bodily harm, even a spousal assault.  But, the criteria that must be present before a conditional sentence may be imposed are:

1.	The accused must be convicted of an offence that is not punishable by a minimum term of imprisonment;
2.	The sentence must be one of less than two years;
3.	The safety of the community would not be endangered by the offender serving the sentence in the community; and
4.	A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.

[28]	There is no minimum sentence for the offence of assault, and the maximum sentence for this offence, the Crown having proceeded summarily, is 18 months, therefore the first and second criteria are met in this case.

[29]	Would the safety of the community be endangered if Bradley Kirby were allowed to serve his sentence in the community?  I have to consider the risk posed by the offender; that is the risk that he will re-offend?  And if he did, what is the gravity of the damage that could ensue in the event of re-offence?  A consideration of the risk posed by the offender should include the risk of any criminal activity and not be limited solely to the risk of physical or psychological harm to individuals.

[30]	It is difficult to assess the risk of Bradley Kirby re-offending.  As I said earlier, I cannot figure out what triggered this brutal beating of Ms. Wolki; Bradley Kirby says “this was not me”, says he is not violent.  Treatment and counseling would be beneficial to any offender who is convicted of repeated spousal assault, but it is abundantly clear to me that Bradley Kirby needs some counseling or treatment, either with respect to his attitude towards women, or with recognizing and accepting his behaviour and what he is capable of.  Bradley Kirby has not had any treatment or counseling that I am aware of.  At the same time, I also have nothing concrete to suggest that Bradley Kirby is a significant risk to re-offend, though one can never say for sure.  I do not know what risk Bradley Kirby poses to re-offend, but I do know that if he does re-offend, and especially if he commits the type of offence that he has been convicted of in these proceedings, the gravity of the damage or harm to the victim is significant.  As I said earlier if Mr. Kirby does not change his behaviour he is capable of seriously injuring someone.

[31]	Considering the circumstances of this offence, especially the level of violence, the duration of the beating, the fact that his father could not stop him from beating and throwing Ms. Wolki out of the house, along with  the past record, the fact that nothing has changed in Mr. Kirby’s life, i.e. he has not received any counseling or programs to deal with whatever issues he may have to deal with, I find that the community would be endangered if Mr. Kirby were allowed to serve his sentence in the community.  Ms. Wolki is a member of the community.

[32]	Further, I find that the fourth criteria, whether or not a conditional sentence would be consistent with the fundamental purpose and principles of sentencing, is not met.  There are some offences, the circumstances of which are such that the need for denunciation or deterrence is so pressing that incarceration is the only suitable way in which to express the community’s condemnation of the offender’s conduct or to deter similar conduct in the future.

[33]	As the Supreme Court of Canada said in R. v. Proulx, [2000] 1 S.C.R. 61, at para. 106, there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.  Where the objectives of denunciation and deterrence are particularly pressing, incarceration will generally be the preferable sanction.  Harsh sentences plausibly provide general deterrence.

[34]	The courts cannot minimize, cannot downplay repeated spousal abuse, especially a situation where a man seriously beats his partner, and has assaulted her before.  Everyone in the community has to realize that this type of conduct will not be condoned nor will the seriousness of the situation be minimized or ignored.

[35]	The circumstances of both Bradley Kirby and the community in which the conditional sentence is to be served have to be considered.  I cannot ignore the fact that we are dealing with spousal abuse and the prevalence of this offence in this jurisdiction.  In the North, the number of crimes of violence is notorious.  Spousal abuse is a serious social problem in the Northwest Territories today, and this is true in virtually every community in the N.W.T.  I find that a very relevant factor when considering whether or not a conditional sentence would achieve the objectives of denunciation and deterrence.

[36]	I also consider the aggravating circumstances in considering whether or not a conditional sentence would be appropriate:  the breach of trust, the duration and severity of the beating, and the past record.

[37]	I have referred earlier to the fundamental purpose of sentencing:  to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions, or sentences, that will:

a)  	denounce unlawful conduct;
b)	deter offenders and other persons from committing offences;
c)	if necessary, separate offenders from society;
d) 	assist in rehabilitating offenders;
e)	provide reparations for harm done to victims or to the community; and
f)	promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[38]	A sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender.

[39]	Other sentencing principles are set out in s. 718.2, and I have considered them.  Section 718.2(a)(ii) recognizes that the abuse of one’s spouse shall be deemed an aggravating circumstance.

[40]	Section 718.2(d) says an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and section 718.1(e) states all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[41]	Though there may be circumstances where conditional sentences may be appropriate even for the crime of assault causing bodily harm which involves abuse of one’s spouse, I find in the circumstances of this case, a conditional sentence could not achieve the purposes and principles of sentencing set out in the Criminal Code.


IV.	CONCLUSION

[42]	When I consider all the circumstances in this case, I find that the need for general deterrence and denunciation is so pressing, that a conditional sentence could not meet those objectives.  Incarceration is necessary to send a strong message to denounce Bradley Kirby’s conduct and to deter him and others from engaging in similar conduct.

[43]	In all of the circumstances of both this offence and this offender, even considering the guilty plea, which I find the only mitigating factor, there will be a sentence of twelve months in jail.  Taking into account that Bradley Kirby has been in custody since August 8, he will be given credit of 2 months, 1 week, leaving 9 months, 3 weeks remaining to be served.

[44]	On Mr. Kirby’s release from jail, he will be placed on probation for three years with the following conditions, in addition to the statutory conditions:

1.	Bradley Kirby is to have no direct contact with Shelly Wolki, without further order of this court; and any contact necessary with respect to the child, Solomon Wolki, must be through a 3rd party, being a sober adult;
2.	Bradley Kirby is to report to a Probation Officer within 1 week of his release from jail, and thereafter as and when directed;
3.	Bradley Kirby is to take any counseling or programs recommended by his probation officer;

[45]	There will be a mandatory DNA order, and a discretionary five year Firearms Prohibition pursuant to section 110 of the Criminal Code.




								B.E. Schmaltz
								Territorial Court Judge


Dated at Yellowknife, Northwest Territories,
this 18th day of October, 2010.


R. v. Bradley Thomas KIRBY	         2010 NWTTC 15
   T3 CR 2010 000572






IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES



IN THE MATTER OF


HER MAJESTY THE QUEEN

- and -

BRADLEY THOMAS KIRBY






REASONS FOR SENTENCE

of the

HONOURABLE JUDGE B. E. SCHMALTZ