Sentencing decision, R. v. Utye, Justice Robert Kilpatrick

7/27/2019 Sentencing decision, R. v. Utye, Justice Robert Kilpatrick

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nunavuumi iqkaqtuijikkut

NUNAVUT COURT OF JUSTICELa Cour de justice du Nunavut

Citation: R. v. Uty e , 2013 NUCJ 14

Date: 20130722Docket: 09-17-21 Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Joe Sammy Utye ________________________________________________________________________

Before: The Honourable Mr. Justice Kilpatrick

Counsel (Crown): Paul Culver Counsel (Accused): Stephen Shabala

Location Heard: Iqaluit, NunavutDate Heard: July 16, 2013Matters: Criminal Code , s. 244.2(3)(b)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


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I. INTRODUCTION

[1] On July 28, 2012, the early morning peace and tranquility of Kimmirut was shattered by the sound of gunfire. Two membersof the RCMP and a youth were inside the police detachmentwhen the attack began. A hail of bullets penetrated thedetachment building and the marked police vehicle parkedoutside.

[2] Mr. Utye has entered a guilty plea to a charge of recklesslydischarging a firearm at the Kimmirut detachment of the RCMP.He is now to be sentenced for this offence.

II. THE FACTS

[3] Twenty-one year old Joe Utye had been drinking heavily. He hadconsumed 26 ounces of Vodka and some beer in an episode of binge drinking. As Mr. Utyles level of intoxication increased, hisinhibitions fell away.

[4] At approximately 2 a.m., Mr. Utye exploded in a rage that knewno limits. Mr. Utye picked up a 303 calibre rifle and a quantity of ammunition. He loaded his pockets with bullets. Mr. Utyes anger was directed at the RCMP.

[5] Mr. Utye discharged his firearm numerous times as he walkedtowards the police detachment. Many citizens of Kimmirut woketo the sound of gunfire that morning. They feared the worst. Ayoung female teen ran to warn the police about what wascoming.

[6] Roused from sleep, Kimmiruts two police officers and the youthwent to the detachment and secured the doors. An urgent call

was made to RCMP headquarters in Iqaluit requestingassistance. The police emergency response team was based outof Iqaluit. It would have to be transported by air to Kimmirut. Nohelp would be available for at least three hours.


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[7] Mr. Utye took up position on a hill overlooking the policedetachment and opened fire. Thirteen shots penetrated thedetachment. Seven shots penetrated the police vehicle outside.Minutes seemed like hours to the victims of this attack. Theywaited for the bullet that would take a life or destroy a limb. Theshots penetrated doors, windows, and walls with ease. Bulletswere lodged in walls, furniture, and appliances. Bullets foundtheir way into the kitchen, the bathroom, the office, and other areas of the detachment.

[8] Mr. Utye eventually ceased firing. A number of citizens thenrisked their lives by approaching Mr. Utye as he walked homecarrying the rifle. He was seized by a group of ten communitymembers. Mr. Utye was tied up with a rope to await the arrival of

the RCMP.

[9] The three victims of this attack may have escaped with their lives, but all now carry emotional scars generated by this near death experience. Three lives have been profoundly changed bythis trauma. They will never be the same again.

A. Aggravating factors

[10] The accused admitted in a statement given to the RCMPfollowing his arrest that he knew that the police detachment wasoccupied when he repeatedly fired into the building.

[11] There was not just one shot. There were many. This attack wasboth prolonged and persistent.

[12] There was an element of planning and premeditation involved.This attack cannot be characterized as a spur of the momententerprise. Mr. Utye intended to target the RCMP. It took time to

gather the firearm and the ammunition. It took time to walk to thefiring location. There was time for Mr. Utyes anger to cool. Therewas time to reconsider.


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[13] A site was chosen overlooking the target. It was a good vantagepoint from which to fire. Mr. Utye was an experienced hunter. Itwas th e hunters eye that selected the firing position. As a hunter Mr. Utye well knew the power and destructive potential of thisfirearm.

[14] Mr. Utye may have been intoxicated, but he was not sointoxicated that he was unable to load, aim, and fire the rifle withfair precision at his intended target. The target was hitrepeatedly.

[15] Mr. Utye comes before the Court with a record. Mr. Utye wasconvicted in Youth Justice Court in 2007 of pointing a firearm,uttering threats, and assault with intent to resist arrest. All three

of these offences involved a police officer. Mr. Utye cannot claimthat firearm offences or crimes of violence against peace officersare out of character for him.

B. Mitigating factors

[16] Mr. Utye has been in pre-trial detention for a period of approximately 50 weeks. He consented to his detention withoutseeking bail. Given the difficult conditions caused byovercrowding at the Baffin Correctional Center, the accused isentitled to enhanced credit for this pre-trial detention.Overcrowding continues to affect the availability of programmingwithin the institution as well as the quality of a prisonersconfinement. The Court accords credit for this pre-trial detentionat the rate of 1.5 to one for a total credit of 75 weeks.

[17] Mr. Utye has entered a guilty plea. He has not forced the state toincur the expense associated with a trial. The victims of thisoffense have not had to relive their ordeal by testifying in a public

forum about their experience.

[18] Mr. Utye claims through counsel to be remorseful. Mr. Utyechose not to address the Court prior to sentence being passed.The Court is consequently unable to assess the strength or thesincerity of Mr. Utyes remorse. The Court does accept that asober Mr. Utye now regrets what he did while intoxicated.


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C. Personal circumstances

[19] Mr. Utye is single. He has no dependants. There are nodisabilities or special needs. Mr. Utye has a work history. He hadbeen self-supporting up until his arrest for this offence.

[20] Mr. Utye has completed a Grade 10 education. He has nospecial skills or trades.

[21] Mr. Utye is an Inuk. He remains connected to his culture. He hasmaintained his conne ction to the land. Mr. Utyes formative yearswere unremarkable. He was raised in a caring and supportiveenvironment. There is no history of physical or emotional abuse.There has been no exposure to the trauma associated with a

residential school.

[22] Mr. Utye is socially well connected. He has maintained arelationship with members of his immediate and extended family.He has friends in Kimmirut. He is not socially isolated.

[23] Mr. Utye has had much hunting experience. He has had muchexperience handling and using firearms. He has participated inthe Junior Rangers program where he achieved the rank of Sergeant.

[24] Mr. Utye is a regular user of Cannabis Marijuana. On average,Mr. Utye binge drinks twice monthly.

III. ANALYSIS

[25] The Nunavut territory has experienced a number of targetedattacks on police and police detachments in the last decade.Many of these cases have involved armed confrontations and

firearms offences against police officers. In 2001 and again in2007, members of the RCMP were shot to death in firearmrelated killings.


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[26] The case authorities filed by the Crown reference a number of firearm related cases. The case of Willie Ishultak in 2001[Unpublished] was followed by the case of Salomonie Jaw in2001 [Unpublished]; Rueben Sangoya in 2002 [Unpublished]; R v Kolola , 2010 NUCJ 04, 2010 CarswellNun 1 [ Kolola] ; the caseof J.S.U. in May 2010 (Youth Justice Court) [Unpublished]; R v Lyta , 2013 NUCJ 01, [2012] NuJ No 31 [Lyta]; and R v Attutuva ,2013 NUCJ 10, [2013] NuJ No 13. This Court is aware of anumber of other cases not referenced by the Crown in thissentencing hearing.

[27] The case now before the Court for sentence is the fourth incidentof its kind since 2007 involving the RCMP in Kimmirut. The caseof Kolola involved the first degree murder of a young police

constable who was shot while sitting inside a marked policevehicle. The case of J.S.U. involved an armed confrontation witha member of the RCMP. A hunting rifle was pointed at themember in question in an extremely dangerous and volatilestand-off. The case of Lyta involved the deliberate targeting of police residences at night with a high powered rifle. It involvedmultiple shots being directed at the police and their families whilethey lay sleeping.

[28] This Court must attempt to address Nunavuts unique systemicproblems through its sentencing posture. This Court reiterateswhat it said in the case of Kolola :

The peace officer is charged with the responsibility to preserve and protect the peace and to enforce the law on behalf of others in thecommunity. In symbolic terms, an attack upon a peace officer is anassault upon the community for which they serve. It is an assault uponthe rule of law. Those who take on the peace officer, those whochallenge their authority, also challenge the law upon which thisauthority is based. Deliberate attacks upon police officers thus merit a

severe response from the law and from the courts that administer thislaw. Denunciation and deterrence must be the foremost considerationof any court called upon to sentence individuals convicted of suchattacks.


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For many years, peace officers in Nunavuts small rural detachmentshave been required to carry out their duties alone or without adequatereinforcements. This was an operational reality of policing in Nunavut.This is now changing. But the reality is that the peace officer in

Nunavut still remains a vulnerable target. The constable is not made of

iron or steel. The peace officer can bruise, bleed and die, like any other human being. Where duty puts the peace officer in harms way there isa corresponding need for the courts to recognize this vulnerabilitythrough the sentencing process (Kolola para.16 17).

[29] This Courts position in Kolola was a restatement of what th is judge had said in the case of Rueben Sangoya (April 2002):

Sentencing emphasis in the north upon general and specific deterrenceis rooted in part in the hard realities of northern policing.Reinforcements are not readily available in small detachments,

particularly in response to life threatening emergencies. Those whodeliberately target justice personnel can and should expect a severeresponse from both the intended targets and the courts.

Police officers, of course are human beings. They have em otions.They have fears. They, too, have family members that can be hurt andkilled. Those who deliberately expose police to the risk of death or severe injury can expect an emphasis on deterrence, not rehabilitationto follow from such an attack. (Sangoya transcript [unpublisheddecision], pg. 9 lines 5-10)

[30] It is said on Mr. Utyes behalf that Mr. Utye did not have anyspecific intention to harm a member of the RCMP when he didwhat he did. Mr. Utye was aware that the detachment wasoccupied when he fired. Mr. Utye was aware of the hunting riflespotential to maim or kill a living target. Mr. Utye was aware thatshots from this hunting rifle would likely penetrate the RCMPdetachment. Mr. Utye was aware when he loaded, aimed, andfired at the detachments walls, wi ndow, and door that there wasa very real potential to harm or kill another human being behind

this target. There was not just one shot directed at thedetachment. There were many. Implicit in the guilty plea is anacknowledgment that Mr. Utye was conscious of the risk tohuman life and limb when he pulled the trigger and deliberatelytook a chance.


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[31] The submission that the defendant in the circumstances of thisoffense did not intend to harm anybody when he fired 13 roundsinto the detachment offends common sense. It was simply goodluck, and not any planning on Mr. Utyes part, that allowed thehuman beings inside the detachment to escape serious injury or death.

[32] There is an extremely high degree of moral culpability underlyingthis offence. This is why this crime carries a minimum mandatorygaol term of 4 years.

[33] The Defense urges the C ourt to be lenient in view of Mr. Utyesyoung age. The Court reiterates and applies what it said inSangoya to this case:

There is a general sentencing principle that rehabilitation should bestressed when dealing with youthful offenders. The first sentence of imprisonment, where deemed necessary, should usually focus onspecific as opposed to general deterrence. Where jail is imposed onyouthful offenders, it should usually be kept as short as is reasonably

possible, given the overall objectives of the sentencing process.

This principle of restraint is not absolute, however. There are a number of exceptions that have long been recognized by sentencing courts.Rehabilitation of youthful offenders is not to be stressed in cases

involving serious crime, particularly crimes of extreme violence or death or grevious bodily harm. This is such a case.

The facts before me, for all of the reasons identified earlier, call for anexception to be made to the general rule. This Court is not saying that rehabilitation is not important. It is saying that rehabilitation in thistype of case must take a back seat to principles of general and specificdeterrence, as well as denunciation. (Sangoya transcript [unpublisheddecision], pg. 9 lines 20-23 and pg.10 lines 1-18)

[34] The offence now before the Court may be the first recorded adultoffense, but Mr. Utye cannot claim to be a first offender. He is nostranger to firearms offences or crimes of violence againstpolice. There is a demonstrable need in this case for specificdeterrence.


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[35] For the reasons outlined earlier, there is also a compelling needto emphasize general deterrence and denunciation for firearmsoffences directed at peace officers in Nunavut. This sentencingposture is needed in order to better protect peace officers andpromote public safety in this jurisdiction.

[36] This Court emphatically rejects any suggestion that the Courtssentencing posture should be relaxed to reflect a peace officersvoluntary acceptance of a risk that he or she may be a target of violence in the line of duty. If there is a risk of violence and apotential for harm, then the Court must recognize thevulnerability of the peace officer and compensate for it byensuring an increased measure of protection through thesentencing process.

[37] The peace officer provides an essential public service. Adeliberate attempt to harm those performing a public dutyenhances the moral culpability of such an attack. The peaceofficers willingness to serve and protect others and to riskthemselves in doing so is a reason to increase, and not reduce,the sentencing tariff for crimes of extreme violence directedagainst the peace officer.

IV. CONCLUSION

[38] In arriving at the duration of this sentence, the Court hasconsidered both the purpose and principles of sentencing set outin sections 718 through to 718.2 of the Canadian Criminal Code(Criminal Code).

[39] The Court has given anxious consideration to Mr. Utyes circumstances as a young Inuit man who has grown up in aremote northern community. The Court has directed its mind

specifically to the criteria identified by the Supreme Court of Canada in the decision of R v Gladue , [1999] 1 SCR 688, SCJNo. 19 [ Gladue ], and the provisions of section 718.2(e) of theCriminal Code . Apart from the usual systemic disadvantagesassociated with life in a remote northern community, there are nospecific Gladue factors identified in this case that might influencethe application of the proportionality principle of sentencing.


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[40] The Court has taken into consideration the mitigating effect of the guilty plea.

[41] Mr. Utye is given a credit for pre-trial detention of 75 weeks. TheCourt today directs that he serve an additional term of 289weeks in a federal penitentiary. This is the legal equivalent of aseven year sentence of gaol.

[42] Had Mr. Utye been convicted of this offense after trial, thesentence imposed today would have been significantly higher.

A. Ancillary orders

[43] Mr. Utye is ordered to provide the authorities with a DNA sample.

Reckless discharge of a firearm is a primary designated offenceunder section 487.04 (a) of the Criminal Code .

[44] The right of any Inuit beneficiary under the Nunavut Land Claims Agreement to possess a firearm for hunting purposes is notabsolute. In the circumstances of this case and this offender,public safety now becomes the paramount consideration. Mr.Utye has on two occasions transformed the tool of a hunter intoa potential instrument of homicide. He was warned once. He hasreoffended. The potential consequences to human life and limbposed by reoffending are severe. There will be no further chances. Mr. Utye may assist others in hunting activities byhelping to pack or dress the kill, but he may never again possessor use a firearm.

[45] Pursuant to section 109 of the Criminal Code , Mr. Utye isprohibited from possessing or using any firearm, crossbow,prohibited weapon, restricted weapon, prohibited device,ammunition, or explosives for life. Any such items now in his

possession together with any Firearms Acquisition Certificate or firearms license shall be immediately surrendered to the nearestdetachment of the RCMP and are forfeited to the AttorneyGeneral for such disposition as is deemed appropriate. TheCourt declines to grant Mr. Utye any exemption to possess afirearm for subsistence hunting as may be permitted under section 113 of the Criminal Code.


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Sentencing decision, R. v. Utye, Justice Robert Kilpatrick

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