R. v. Ikkusek

Date: 20090703 Docket: 09/09 Citation: 2009 NLCA 41 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: CAROL ELLEN IKKUSEK APPELLANT AND: HER MAJESTY THE QUEEN RESPONDENT Coram: Wells, Roberts and Barry, JJ.A. Court Appealed From: Provincial Court, Happy Valley/Goose Bay Application Heard: July 3, 2009 Judgment Rendered: July 3, 2009 (Orally) Memorandum of Disposition Filed: July 9, 2009 Counsel for the Appellant: Self-Represented Counsel for the Respondent: Elaine Reid Page: 2 MEMORANDUM OF DISPOSITION Roberts, J.A.: [1] Ms. Ikkusek sought leave to appeal her overall sentence of twenty- five months. She represented herself on the application, but did have legal counsel at trial. [2] The following is the sentencing judge’s resumé of the offences for which the sentence was imposed; Ms. Ikkusek had pleaded guilty: … The offences that we’re dealing with here occurred on September 28th, October 7th and October 9th at Nain. The offence on September 28th was an assault of Mr. Alfred Winters, it actually involved more than one assault, there was a disturbance or some kind of an upset or argument at a home where Ms. Ikkusek was, the police were called to remove her from the home because she refused to leave and tha[t] constitutes the mischief charge by interfering with the property, use of the property and then when the police did come she was very angry and upset. The police tried to subdue her and that was difficult. She in the course of being subdued, punched Mr. Winters in the face with her fist while the police were actually trying to either hold her or handcuff her, subdue her and while she was cuffed and before she actually got out of the presence of Mr. Winters she then kicked him in the private parts and brought him to the floor. She was then removed. She was released and on an undertaking with conditions including a condition relating to alcohol and the general condition to keep the peace and be of good behavior, but then on October 7th which is about nine days later for reasons that aren’t very clear while she was walking down the road in Nain, she pushed Clara Obed, a resident of Nain from behind or struck her from behind and Mrs. Obed went to ground. There didn’t seem to be any lead up to this, didn’t seem to be any provocation, didn’t really seem to be any reason why it was Ms. Obed as opposed to anyone else. When she was arrested for that she was found to be drunk and so there charges were laid for failure to keep the peace and be of good behavior which depends in large part on the assault on Ms. Obed and then a further breach of undertaking related to alcohol which is a separate, I consider a separate offence on the same date at the time that she was arrested. She may have been under influence as well at the time of the offence on that date. So she remained in custody then from October 7th and was brought to court in the process on October 9th in Nain to deal with her charges. She had a bail hearing and she was denied release. Subsequent to the denial of release she got very angry and upset. She removed a water glass, that is a water container made of Page: 3 glass from the table in the court space in Nain and threw that some distance within the room, smashing the glass in some proximity to where there were other people, although it’s not at all clear that she was throwing it at other people, she was simply destroying the glass in anger and then after that, and during that, she was-, because she was upset she was screaming and shouting and had to be subdued by police officers or actually had to take her to the ground, to the floor that is, in the court space in Nain, everybody was upset and of course a bit scared as a result. …[December 1, 2008 transcript, pp. 44-46.] [3] The twenty-five month sentence was reduced to twenty-one months to take into account pre-trial detention. [4] The only ground articulated in Ms. Ikkusek’s application for leave to appeal was that the sentence should be lowered to fourteen months so that she would be eligible earlier for parole, thus allowing her to start a program at the College of the North Atlantic in Happy Valley/Goose Bay in September. She conceded, in her application for leave, and before the Court, that the appropriate sentence for the amalgam of offences to which she pleaded guilty was between fourteen and twenty-seven months, as noted by the sentencing judge. It was also acknowledged by her counsel at the sentencing hearing. The Crown was seeking a sentence of more than two years, i.e., a federal sentence, so that Ms. Ikkusek might get “the help she so desperately needs”. Her counsel’s response to the Crown’s position was: … I have to agree that the sentence proposed by [the Crown] in these circumstances for this particular offender is not outside the range of reasonableness and if you are inclined to show some leniency to make it a provincial sentence, I will leave that in your discretion given her aboriginal statutus and the Gladue factors. … [December 1, 2008 transcript, p. 27.] [5] Ms. Ikkusek has an acknowledged problem with alcohol and a long list of prior offences, many of them violent and most related to or stemming from the use and abuse of alcohol. Her own efforts to overcome her addiction and those of others to help her have not succeeded, although she told the Court that she is now resolved to make a new start and is convinced that she can do so. [6] This Court can only grant leave to appeal a sentence within the parameters of the law. I refer to the statement of Lamer C.J.C. in R. v. Proulx, [2000] 1 S.C.R. 61: [127] … 13. Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to considerable deference from appellate Page: 4 courts. As explained in M. (C.A.), [1996] 1 S.C.R. 500], at para. 90: “Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit”. [7] More specifically, leave to appeal against sentence will only be granted, as was confirmed by this Court in R. v. Jesso (H.) (2008), 276 Nfld. & P.E.I.R. 147, at para. 13, if the grounds of appeal have “sufficient” or “arguable” merit. Although Ms. Ikkusek represented herself well before the Court, she raised no such grounds. [8] Ms. Ikkusek is now eligible for parole and we would suggest she apply forthwith. If her application is successful, she may still be able to begin her intended program at the College of the North Atlantic as planned. She is a young woman with a lot of promise. [9] In summary, Ms. Ikkusek’s ground of appeal does not have sufficient or arguable merit. Her application for leave to appeal her sentence is therefore dismissed. ______________________________ D. M. Roberts, J.A.