R. v. Akulukjuk, 2015 NUCJ 18

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Akulukjuk, 2015 NUCJ 18 Date: 20150714 Docket: 10-14-80 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Johnny Akulukjuk ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): B. Flight Counsel (Accused): S. Shabala Location Heard: Iqaluit, Nunavut Date Heard: May 12, 2015; May 26, 2015 Matters: Criminal Code, s. 268 ; s. 267 (

b) REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been anonymized at the discretion of the authoring Justice to protect vulnerable parties. I. INTRODUCTION [ 1 ] Mr. Akulukjuk has plead guilty to a charge of assault causing bodily harm. II. FACTS [ 2 ] Mr. Akulukjuk and the victim appear to have a history of animosity that predates this offence. On the day in question, the victim was intoxicated and walking in the community when Mr. Akulukjuk followed him. The two found themselves on a narrow pathway and a fight ensued. It started as a consensual fight; however, Mr.

Akulukjuk went beyond the scope of a consensual fight when he took two swings at the victim with a 2x4 piece of wood, hitting him on the legs and causing him to fall. When the victim tried to get back up, Mr. Akulukjuk stabbed him three times: once to the head, once in the back, and once in the chest. [ 3 ] The victim was medivaced and remained in hospital for approximately 9 days. He suffered an 8 cm laceration to the head and a collapsed lung. Fortunately, he has fully recovered and there are no permanent injuries. [ 4 ] The motivation for the altercation was an earlier assault by the victim on Mr.

Akulukjuk's brother-in-law. A. Personal Circumstances [ 5 ] Mr. Akulukjuk is 28 years old. He grew up in Pangnirtung in a good family. The family home was not characterized by substance abuse, violence, or neglect. He is a high school graduate and would like to undergo training to become a heavy equipment operator. As a youth, he lost two close friends to suicide. [ 6 ] Mr. Akulukjuk and his common-law partner have two young children: a four year old and an infant. He does not drink, though he does use recreational drugs. His partner describes him as a good husband and partner. [ 7 ] Mr.

Akulukjuk has a criminal record that dates back to 2009. There are 16 convictions on the record, 3 of which are assaults and 2 for uttering threats. He has not been before the court for 2 years. III. POSITION OF THE PARTIES [ 8 ] The Crown seeks a jail term of at least 2 years. The Defence submits that a proper sentence is a jail term of 12-15 months.

IV. ANALYSIS A. Credibility [9] The principles of sentencing that must be applied are set out in s. 718 of the Criminal Code of Canada, RSC 1985, c C-46 [CriminalCode].

They are: • to denounce unlawful conduct; • to deter the offender and others from similar behaviour; • if necessary, to separate the offender from society; • to rehabilitate the offender; • to provide reparations to victims of crime; and • to promote a sense of responsibility in an offender. [10] The Crown relies upon the case of R v Klondike, 2012 NWTSC 28, 100 WCB (2d) 715 [Klondike], a decision of the NorthwestTerritories Supreme Court, involving a single stab wound to the back resulting in a collapsed lung.

In Klondike, the court refers to theNorthwest Territories Supreme Court decision in R v Morgan, 2007 NWTSC 30, 74 WCB (2d) 836, for the proposition that thesentencing range for these types of offences is 2.5 to 5 years. While the judge in Klondike accepted this proposition, the courtnonetheless went well below the range and imposed a sentence of 18 months. A. Case law [11] While the courts in Nunavut unfortunately deal with these types of offences all too often, there are few reported sentencingdecisions.

Some of the cases from this jurisdiction that I will refer to here are not reported and accordingly are not readily available tocounsel. [12] In the case of R v Evaloardjuk, 1999 NUCJ 11, (NUCJ), the offender stabbed an intimate partner once in theabdomen, perforating his bowel. The victim required immediate medical attention and remained in hospital for one week.

The offenderwas sentenced to a 9 month conditional sentence. [13] In R v Kablutsiak, 2013 NUCJ 3 , [2013] Nu J No 4 (QL), the offender, during the course of an argument with his spouse,threw a tire iron in her direction, hitting her in the head and causing skull and facial fractures. The victim was medivaced and underwenta number of surgeries, including one to put a plate in her head. The offender had dated convictions for offences of violence against thesame victim.

The sentence was 9 months custody, followed by 2 years’ probation. [14] In R v Teemotee, (5 April 2011), Nunavut 08-10-558 (NUCJ), the offender committed a vicious knife attack on a relative. Thevictim received approximately 9 stab wounds – 7 on the back and 2 on the chest - along with other cuts, scratches, bites, and a collapsedlung.

The sentence imposed on the aggravated assault charge was 16 months custody, minus a 6 month pretrial credit, followed by 3years’ probation. [15] In R v Alainga, (28 January 2015), Nunavut 08-14-422 (NUCJ), the offender scratched at her partner's face, hooked her finger intohis eye, and tore it. The victim was medivaced and had to undergo follow-up treatments. At the time of sentencing, the victim's prognosiswas uncertain. The offender had prior assault convictions, including one against the same victim.

She pled guilty to assault causingbodily harm and was sentenced to 6 months custody, followed by 12 months’ probation. [16] Of course, there are many cases from this jurisdiction that are at the other end of the sentencing regime.

[17] One such case is R v JA, 2013 NUCJ 7 , [2013] NuJ No 11 (QL), where, as part of a global 6-year sentence for numerousoffences, sentences of 3 years and 1 year consecutive for each of two aggravated assaults were imposed. In imposing the sentence, thecourt recognized the case as one of the most disturbing it had ever heard. [18] In R v Kilabuk, (15 April 2011) Nunavut 08-10-218 (NU CJ), the offender was convicted of aggravated assault following a trial.

The assault occurred in the context of a fight during which the offender used a hunting knife to slash and stab the victim multiple times,causing life threatening injuries that included a slash wound to the face. The victim was medivaced and underwent emergency surgery.The offender had a significant criminal record. The sentence imposed was 39 months. [19] The purpose of reviewing these cases is simply to highlight that these types of offences vary greatly in their circumstances, as dothe offenders who commit them.

The overall result is a wide range of sentences that are imposed by the courts. [20] Sentencing is a highly individualized process, and while parity requires consistency in approach and analysis, it does not requirethat all persons convicted of the same offence be treated alike. In addition to some disparity amongst offenders, there may also beregional disparity in response to the needs and circumstances of different communities or regions. B. Mitigating factors [21] There are a number of mitigating factors in this matter. Mr. Akulukjuk has pled guilty early on in the process.

This has not onlysaved the state the expense of a preliminary hearing and trial, but it has saved the victim from having to come to court to testify. It is alsoan indication that Mr. Akulukjuk accepts responsibility for the offence. This court has stated numerous times that a guilty plea will begiven meaningful impact on sentence. C. Aggravating factors [22] There was also some element of provocation and a consensual fight. [23] The conviction is for assault causing bodily harm. It is aggravating that Mr.

Akulukjuk introduced a knife into what was a fist fight.The introduction of the knife escalated the seriousness of the incident and significantly increased the risk that there would be seriousinjury or, indeed, death. V. CONCLUSION [24] The appropriate sentence is one of 12 months jail. Mr. Akulukjuk has been in custody since May 12th and he will be given creditfor that time, on a 1:1.5 basis, for 23 days. That will be followed by a period of probation for 12 months with the following conditions: 1. Mr. Akulukjuk must comply with the required statutory conditions; 2. Mr.

Akulukjuk must report to his probation officer within 5 days of his release from custody and thereafter as directed; 3. Mr. Akulukjuk must take such counselling as directed by his probation officer; and 4. Mr. Akulukjuk is to have no contact, either directly or indirectly, with [the victim]. [25] Mr. Akulukjuk is also subject to the following ancillary orders:

1. A Criminal Code

section 109 firearms prohibition, for a period of 10 years; 2. A DNA order as this is a primary designated offense; and 3. A victim of crime surcharge of $200. Dated at the City of Iqaluit this 14th day of July, 2015 ___________________ Justice S. Cooper Nunavut Court of Justice