A Yellowknife man who assaulted a woman numerous times will go to jail after a veteran Crown prosecutor was called in to save a plea agreement that had been questioned by a judge.
Benjamin John Robert Nitsiza was on Tuesday sentenced to one year in total for 11 crimes carried out in 2020, to be followed by 18 months’ probation.
Those crimes include uttering threats to kill, criminal harassment, mischief, attempting to disarm a police officer, and several crimes related to domestic violence.
Prosecutor Brendan Green appeared in Territorial Court on Tuesday afternoon after Judge Donovan Molloy said last week he was not convinced he could accept the joint recommendation, calling the Crown’s presentation “woefully unprepared.”
“This wasn’t a case where I picked apart a reasonable sentencing position or effort, this was a case where what transpired was a mockery,” Molloy said to Green.
“I didn’t go gunning for faults in the submission so I could reject it, I was presented with an absolutely ridiculous position from the very first position out of the gate.”
Green had come prepared with case law to argue why the joint submission should be accepted.
“I want to be clear, as a member of the Law Society, that I can’t offer criticism of a colleague’s work in a hearing when I wasn’t present and I don’t have a transcript, and that’s not my intention here today,” he said.
He argued the proposed sentence was fit, given the problems the Crown would have had in securing a conviction on several of the 25 counts Nitsiza faced.
The victim indicated she would not appear in court to testify against Nitsiza regarding some of the crimes committed.
Molloy asked why the Crown did not instead use her original statements to police or subpoena the woman.
Green said both of those options had been rejected by the Crown’s office in this case after many discussions with the victim.
Molloy said the legal system, in general, makes a lot of assumptions made about victims of domestic violence.
“You’re assuming if she gets a subpoena … that they won’t show up, but many people … will absolutely show up because they know it’s not an invitation,” said Molloy, adding the subpoena would allow the victim to explain why they were testifying to family or friends of the accused.
“Maybe they would co-operate – you just assume,” the judge continued.
“You’re talking about a scourge of domestic violence in the Northwest Territories.
“You have some of the most vulnerable people in the world but, because of the dynamics of domestic or intimate partner violence, it’s hard to convince them to participate.”
Green replied that his experience in the NWT had shown him otherwise.
“With the greatest of respect, your Honour, I’ve been practising in these communities for six years … and when a domestic assault victim tells you she is not coming to court, she is not coming to court,” he told the judge.
“And if you put her up on the stand against her wishes, she will say she doesn’t remember.
“This is what I’ve chosen to dedicate my life to, and that’s been my experience. These are not assumptions. This is respect for her and her intentions.”
Judge would have chosen longer sentence
Defence lawyer Stephanie Whitecloud-Brass noted that accused people who plead guilty early on in the process save stress being placed on the victim and allow healing to begin sooner.
She previously noted Nitsiza has been diagnosed with mental health issues.
The court heard that on two occasions in March 2020, Nitsiza – who had been drinking each time – struck a woman multiple times at her Yellowknife residence. He also placed a knife in his pocket and ordered her to get him cigarettes at the store, leaving her five-year-old child. He threatened to harm her, the child, and police if she reported him.
On the night of July 17, 2020, the woman invited Nitsiza over and he demanded to see her cellphone. When she refused, he slapped her, punched her repeatedly, pulled her by the hair and smashed the phone. She fled and asked a friend outside to use a phone to call police. While inside, Nitsiza smashed her TV and did other damage.
On the night of October 16, 2020, RCMP received a report of a stabbing at the Norseman Apartments on 52 Avenue and observed Nitsiza outside with a bleeding hand that required medical treatment. Nitsiza gave a wrong name. Police eventually discovered there was a warrant for his arrest.
As he was leaving hospital, he tried to escape from officers. During the struggle, Nitsiza grabbed onto an officer’s firearm. He was subdued and arrested.
On November 22, the victim invited Nitsiza to her residence. He attempted to persuade her not to show up at court to testify against him. When she said she intended to testify regarding the March incident, he struck, bit and pinched her.
Nitsiza had originally agreed to plead guilty to 12 counts in exchange for having 13 others dropped and receiving a joint submission for a one-year jail term followed by 18 months’ probation.
On Tuesday, one more guilty plea was dropped due to a recording error.
With remand credit accumulated, he will have 107 days left to serve.
Under the supervised probation order, Nitsiza will have to take counselling and must not contact the woman unless she consents.
At the end of Tuesday’s hearing, speaking directly to Nitsiza, the judge said: “If left to my own devices, you would have gotten a two-year sentence here today.”