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Justice

Judge offended by joint sentence submission for domestic abuser

Last modified: January 31, 2022 at 6:17pm


A Northwest Territories judge says a man in Yellowknife who repeatedly assaulted his female partner — who has a physical disability — deserved a harsher sentence.

Judge Donovan Molloy made the comments during a sentencing hearing in territorial court on Friday. He described a joint submission of four months imprisonment as being in the “sub-basement” of possible sentences for the offence. 

“The Supreme Court of Canada and various courts of appeal …  have basically formed [lower] court judges into rubber stamps,” Molloy said, referencing judges’ limited ability to reject joint submissions. 

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“I’m not sure why we need to be involved anymore. You could just email the terms and conditions [of joint submissions] up to the clerk. 

“In any event, I’ve already communicated with the entire bar of the Northwest Territories that I was not going to engage in or elaborate comments or criticisms about them, so I’m going to stick to that.”

Molloy has previously been highly critical of joint sentencing submissions in some domestic violence cases in the NWT.  Last May, however, NNSL reported Molloy said he would no longer make comments on his view of joint sentences presented to him.

“I’ve decided it is counterproductive and potentially dangerous to the administration of justice to pass judgement on my view of what the sentence should be,” Molloy was quoted as saying. “If, in my pursuit of adherence to principle, I’ve made someone feel bad, that’s something to be regretted.”

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The court heard on Friday that a man had beaten and choked his partner of 13 years last September. He was subsequently released with conditions on a promise to appear.

Just over two months later, the man violated that release order when he repeatedly punched the woman in her face so hard a tooth fell out. 

Cabin Radio is not naming the man, as it could identify the victim.

Both the Crown and defence said the man deserves four months in jail to be followed by 18 months probation for two counts of assault and one count each of mischief and breaking a court order. 

In exchange for a guilty plea, the Crown agreed to drop a count of assault causing bodily harm and a separate release violation.

Crown prosecutor Christopher Green said he recognized the sentence was on the lower range for this type of offence, but argued it was appropriate in this case. 

“It’s at the basement of the lower range — the sub-basement,” Molloy said, interrupting Green.

Green responded that the sentence was proportionate to the crime and in accordance with the fundamental principles of sentencing. 

“When you take into account the circumstances leading to this joint submission, the sentence would not offend the community’s confidence in the administration of justice,” he said.

The prosecutor listed a number of mitigating factors he said justified the sentence including that the man has had a clean record for some time and there may have been issues at trial related to the victim’s memory on the stand. 

Green also pointed to the Gladue principle, which requires judges to consider the unique systemic or background factors which may have played a part in bringing an Indigenous offender before the courts and make sentencing decisions accordingly — up to and including community alternatives to incarceration.

“The Crown takes the position that a probation order promotes rehabilitation for the accused and can serve as an alternative for confinement,” Green said. 

But Molloy appeared unconvinced. 

“Sorry, I have no choice but to endorse it, so you can go on as long as you like,” he said. “You do need to speak to the record as to why you are doing this.”

The prosecutor went on to explain that the victim is legally considered a vulnerable person and that the same man had been convicted of assaulting her 10 years ago.

“The accused’s behaviour … amounts to a pattern of physical and emotional abuse against a particularly vulnerable victim who is impoverished and disabled,” Green said. “The court should take into mind the significant distress … his actions caused to [the victim] and to her support network.”

Defence lawyer Jay Bran said the couple are no longer in a relationship and it is unclear whether they may reconcile.

Molloy ultimately imposed the sentence “exactly as dictated by the attorneys,” which will see the man sentenced to four months, or 120 days, in jail to be followed by 18 months of supervised probation.

While on probation, the man will have to report to a supervisor, attend counselling as directed, and not contact the victim. He will also have to submit a DNA sample to the national databank and be under a weapons prohibition.

The man has been in custody for 48 days, so he will have 72 days of remand credit subtracted from his sentence. That means he has 48 days left to serve.

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