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R V Josephee, 2020 NUCJ 40
R V Josephee, 2020 NUCJ 40
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I. INTRODUCTION
II. FACTS
[2] On June 17, 2018, Harry Josephee had his eighteenth birthday. A
month later, on July 18, 2018, he and another person broke into the
Recreation Office in Kinngait. Harry used a drill to unscrew the
plexiglass window so the two of them could enter the offices. They
spent about 40 minutes inside the offices. When they left, they took a
number items with them, including a set of office keys and a Savage
.223 rifle.
[3] The break and enter was captured on camera. The footage showed
Harry leaving the office with the rifle strapped on his back. The
following morning a Hamlet employee went to Harry's house and
asked for the rifle back. Harry returned it to him.
[4] Later the same day Harry was confronted on the street by the
Recreation Director. The Recreation Director noticed that Harry was
wearing some sneakers that had been stolen from the Recreation
office. The Recreation Director was angry, and he grabbed Harry by
the throat and demanded the sneakers. The Recreation Director was
using such force that Harry almost lost consciousness. There were
other people in the area. A bystander felt compelled to intervene,
telling the Recreation Director to stop. The sneakers were returned,
and Harry was left in his stocking feet, on the street.
[5] Less than an hour later the Recreation Director was in his office when
he heard loud bangs. He looked out the window and upon hearing
more bangs, realized they were gun shots. Bullets were entering the
office from various locations. The Recreation Director had to lie down
to try and protect himself. No one else was in the office. The
Recreation Director called a Hamlet employee to find out what was
happening. The employee drove to the area and saw Harry with a
rifle. He told the Recreation Director to stay inside and set up
barricades.
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[6] By this time, the RCMP were aware of active shooting in the
community and were responding. All the RCMP members in the
community made their way to the area of the shooting. They
approached cautiously. They saw Harry close to the Recreation Office
with a firearm. Harry complied with directions given to him by the
RCMP, dropping the rifle and putting his hands over his head. In
addition to the rifle, other items were on the ground in the area around
Harry, including a machete, rifle cartridges and casings, and two
boxes of ammunition.
[7] Subsequent investigation disclosed that Harry had taken a rifle from
his uncle's house. At least two shots were taken into the Recreation
Office and one shot at a hamlet vehicle punctured a tire.
[8] Harry was arrested and taken into custody. On July 23, 2018, he was
released on a Recognizance. Conditions on his release required that
he live at a specific residence in Iqaluit and that he abide by a curfew
from 10:00 pm to 7:00 am. On August 29, 2018 he was arrested for
breaching his Recognizance as he was not in his residence as
required.
[13] The Defence seeks a sentence that, given the amount he will be
credited for pre-trial custody, will not exceed two years less a day.
The goal, they say, should be to keep Harry in the territory.
IV. VICTIM
V. CIRCUMSTANCES OF OFFENDER
[16] Harry's mother struggles with substance abuse and left when he was
baby. His father, also struggling with substance abuse, left when
Harry was every young. Harry was raised in by his grandparents. His
grandparents were caring and supportive but were sometimes
overwhelmed by their responsibilities. The family did not have a lot of
resources and were affected by homelessness and food insecurity.
Harry was not taught land skills as the family did not have the means
to purchase skidoos, boats, and other tools that are necessary for
land activities.
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[17] Harry has been affected by suicide. Two of his uncles died by suicide
in the home Harry grew up in. When he was 15 Harry discovered the
body of an 11-year-old friend who had taken his own life. Again, in
2016, a friend died by suicide.
[21] In 2018 one of his prints was selected as part of a group of prints
displayed at the Legislative Assembly.
[22] In the time leading up to the incident Harry was struggling. He was
homeless. He was often hungry. He was still very young but was
trying to deal with the responsibilities of adulthood. He was not able to
cope; he simply did not have the resources, maturity, or skills to
address the multitude of issues he was faced with.
[23] Harry had never been in trouble with the law. The break and enter to
the Recreation Office was the first time.
[26] He is planning for the future. He would like to become a carpenter and
work for the Hamlet.
VI. ANALYSIS
[27] The principles of sentencing are set out in s. 718 of the Criminal
Code.
[29] The Nunavut Court of Appeal, in R v Lyta, 2013 NUCA 10, considered
the impact of a mandatory minimum sentence on the analysis which a
judge must undertake when sentencing. The Court rejected the notion
that the mandatory minimum sentence is the sentence which should
be imposed except in instances where the application of general
sentencing principles calls for a higher punishment. Conversely, the
Court did not endorse the approach that the mandatory minimum
sentence is reserved for the “best offenders” and the “best cases”.
Rather, the fact that there is a mandatory minimum sentence is one of
the factors the Court must consider when determining the appropriate
sentence. The fact that there is a mandatory minimum sentence will,
practically speaking, have an inflationary effect on the sentences
imposed.
[30] The high level of moral culpability and the seriousness inherent in
intentionally discharging a firearm into a place where people might be
is recognized by the mandatory minimum sentence of four years (R v
Ookowt, 2020 NUCA 5 at paras 46, 77).
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[31] It is aggravating that there was more than one shot taken at the
Recreation Offices. There was some forethought to the offence, as
Harry had to obtain the rifle and ammunition before going to the
Recreation Office. This was an opportunity for him to calm down and
consider his response to the situation.
[33] The perceived humiliation suffered by Harry prior to the offence, while
it might assist in explaining the circumstances leading to the offence,
is not a mitigating factor.
VII. CONCLUSION
[35] In my view the one-year sentence sought by the Crown for the break
and enter is excessive. I say this while appreciating that the offence of
break and enter to a non-dwelling with the intention of stealing a
firearm or actually stealing a firearm is considered more serious than
break and enters to non-dwellings that do not involve firearms. This is
reflected in the higher maximum penalty for break and enters which
involve firearms.
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[36] The break and enter was Harry's first offence. It is serious that a
firearm was stolen during the break and enter. However, it cannot be
assumed nor do the facts support the inference that the intent in
taking the firearm was to use it in the commission of further offences
or for any nefarious purpose. But for the firearm having been taken,
such a break and enter for a first-time offender may not have resulted
in a jail term.
A. Pre-trial custody
[38] Harry has served 655 actual days in pre-trial custody. He is entitled to
enhanced credit at a rate of 1:1.5, for credit of 982 days. The
sentence remaining to be served is 598 days.
B. Ancillary orders
[39] There will be a section 109 firearms prohibition for 10 years. There
will be a s. 113 exemption. There will be a DNA order as this is a
primary designated offence. The victim of crime surcharge is waived
for reasons of hardship. While in custody Harry will not have any
contact with the Recreation Director. Exhibits seized by the RCMP will
be forfeited.
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Justice S. Cooper
Nunavut Court of Justice