Nunavut judge explains how plea agreements work

In a judgment delivered Aug. 8, Justice Robert Kilpatrick of the Nunavut Court of Justice said he had no choice but to accept a plea agreement negotiated between lawyers for a 25-year-old Pond Inlet man who pleaded guilty to brutalizing two people and traumatizing his own children. (PHOTO BY DAVID MURPHY)

In agreeing to a plea-bargained sentence he described as “very generous,” Justice Robert Kilpatrick decided to provide the public with a lengthy explanation of how such sentencing deals work, in an Aug. 8 judgment involving a 25-year-old Pond Inlet man convicted of brutalizing two people this past November and January.

“For sound public policy reasons, the criminal justice system seeks to encourage the settlement of serious criminal allegations without trial,” Kilpatrick said in his judgment. (See document embedded below.)

The man, known only as “AB,” had pleaded guilty to sexual assault, choking, aggravated assault and assault with a weapon in an agreement negotiated between defence lawyer Steven Shabala and Crown lawyer Barry McClaren.

In that agreement, the lawyers agreed AB should serve a total sentence of three and a half years in jail — and presented the deal to Kilpatrick in a joint submission.

The judge accepted their recommendation, saying his legal ability to change it is limited by previous appeal court decisions.

“[A] sentencing court must not lightly interfere with the terms of a negotiated settlement that has resulted in the entry of guilty pleas,” Kilpatrick said.

A judge may increase a sentence negotiated by lawyers only if “the proposed sentence brings the administration of the criminal justice system into disrepute,” he said.

Kilpatrick went on to explain why the court system often operates that way.

Plea agreements save time and public money. They also spare crime victims the torment of reliving their experiences in court, Kilpatrick said.

At the same time, accused persons plead guilty and waive their right to a trial after negotiating a more lenient sentence.

“The joint submission on sentence is the end result of this process of negotiation,” Kilpatrick said.

He described these deals as “the lubricant” that helps “the cumbersome machinery of the criminal justice system process cases with reasonable dispatch and efficiency.”

And to make the system work, accused persons need assurance that judges will respect negotiated sentences.

“Without this assurance, persons accused of crime would insist on a trial in every case. The cost to the system of justice would be immense,” Kilpatrick said.

In the case of AB, Kilpatrick said the man’s offences involve many aggravating factors and that the three-and-a-half-year deal struck by lawyers falls at “the very low end of the appropriate range for this combination of offences committed in these circumstances.”

But after “much anxious consideration” he said it’s not possible for him to find that the sentence brings the administration of justice into disrepute.

In the first of two incidents, the accused pleaded guilty to sexual assault and choking in the attempted rape of his spouse — a crime committed in front of a small child — on Nov. 7, 2012.

“The little one’s screams of terror, the screams of AB’s own child, did not deter AB from the violence that followed,” Kilpatrick said.

AB kicked his spouse, jammed his thumbs into her eyes, pulled her hair and squeezed her neck with his hands, saying he wanted her to feel what it was like to be raped.

But he gave up the attack after he found he was unable to remove her pants.

The second incident occurred Jan. 5, 2013, when AB was free under a promise to the court to have no contact with his spouse and to stay away from her home.

While sober, he walked into her house and saw a man, known as “AP,” sleeping on the couch.

In a fit of jealousy, he walked into his spouse’s bedroom, grabbed a hockey stick and hit her over the legs with it in front of three children who had been snuggled beside her in bed.

Then he turned to the living room and attacked AP, who was asleep, intoxicated and unable to defend himself.

AB struck the man about 20 times with the hockey stick, causing multiple skull fractures and other injuries to his face and head.

The beating also ruptured one of AP’s internal organs. This injury triggered medevac flights to Iqaluit and Ottawa for emergency surgery to save the man’s life.

The traumatized man also suffered loss of hearing in one ear and afterwards quit his job with the Government of Nunavut.

“The lives of AP’s wife and two young children have been turned upside down. All can be said to be traumatized by this event,” Kilpatrick said.

At the same time, he acknowledged a long list of mitigating factors the two lawyers had given him.

Those included his good behaviour while awaiting trial at the Rankin healing facility, his dysfunctional family life while growing up, sexual abuse inflicted by a family member, and the fact that he has no previous criminal convictions.

“The home of an alcoholic is a lonely place for a child,” Kilpatrick said, referring to AB’s upbringing.

But he said the three-and-a-half year sentence should not be regarded as a precedent and he also imposed a 10-year firearms ban on AB.

“Your past does not have to dominate your present. You are not like a stick in a river being driven by currents beyond your control. You are the master of your fate. You will decide, every day, whether you will progress in your healing journey, or not,” Kilpatrick told the young man.

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