Madsen sentence delayed until June 23

Sentencing of a 32-year-old Theodore man accused of an aggravated assault that left another man paralyzed has been put off for another month.
Judge Patrick Reis found Kim Madsen guilty of aggravated assault in March for an attack that took place at the City Limits in September 2015. In a video that was played repeatedly during the trial, Madsen is seen grabbing Dennis Peepeetch (43) by the collar and slamming him into the floor several times.
Peepeetch, who suffered from a serious spinal condition that made him susceptible to injury, was left paraplegic.
In his guilty finding, Reis found that while Peepeetch instigated the incident by spitting, whether intended or not, in Madsen’s face, the younger, stronger man acted disproportionately and recklessly.
The judge ordered a pre-sentence report and scheduled sentencing for May 12.
 

Far apart
At the beginning of the hearing Friday, both counsel for the Crown and defence told the court they were far apart on sentencing and were prepared to make lengthy submissions.

Prosecutor Andrew Wyatt asked for five years in penitentiary while Madsen’s attorney David Rusnak argued for 90-day intermittent custody followed by three years probation.

Crown submissions
Wyatt’s argument centred around the sentencing principles of deterrence and denunciation, which he called “paramount in crimes of this nature.” He argued the principle of proportionality also supported a lengthy prison term because both the gravity of the offence, which he described as “extreme,” and Madsen’s moral culpability were high. He said Madsen “chose” to respond violently when he had many other choices and the only logical conclusion was that he had intended to harm Peepeetch, even if not to the extent he did.

During the Crown’s submissions Judge Reis interrupted to address an issue he had noted in the pre-sentence report. The report suggested that Madsen was likely to be assessed low risk, and if so, the only programs available to him in the federal penitentiary would be vocational and educational, whereas all indications are he needs help with addictions anger management. These, Reis said, would be available
in the provincial system according to the pre-sentence report.

The judge asked counsel if it would not be therefore better to impose a two-years less a day sentence so Madsen could serve his time in provincial jail.

Wyatt responded by saying that rehabilitation was secondary to deterrence and denunciation in this case.

The Crown then addressed the case law submitted by the defence noting that in none of those cases, which resulted in much lighter sentences, had the consequences to the victims been nearly as severe as those sustained by Peepeetch. Wyatt also argued that all of those cases involved mitigating circumstances such as guilty pleas, indications of remorse, and personal circumstances of the offenders, none of which he said applied in this case.

Wyatt then presented several cases of his own that established a range for similar crimes at four to six years, although he admitted he was unable to find a Saskatchewan case or a Canadian one that perfectly fit the current one.

The prosecutor finished by saying the most shocking thing was that even after the guilty verdict, the pre-sentence report indicated Madsen is still trying to deflect blame, shows no remorse and has not offered an apology to Peepeetch and his family.

“Remorse for a criminal act—a sense of deep regret and guilt for that crime—requires at the very least insight into the fact that a wrong has been committed,” the prosecutor quoted from R. v. Andrukonis, an Alberta Court of Appeals case. “Without that understanding, an expression of remorse is akin to an apology expressed as “I am sorry if what I did upset you.” That is not a true apology and an expression of remorse by a person who does not accept that what he or she did was wrong is not true remorse.”

Victim impact statements
Finally, the Crown called on three members of Peepeetch’s family to read victim impact statements into the record. Wyatt said it was not just Peepeetch, who is forever affected by the crime, but the entire family and community.

“This September, our entire family was changed, not by choice, but by a vicious, malicious and brutal attack of a coward, a monster,” wrote Tamara Peepeetch, Dennis’s sister, in a statement read by their mother Vicky Wapamoose.

Wapamoose also entered her own statement in which she spoke of her son’s daily struggles and dismal prospects, as well as the anguish and helplessness she feels at not being unable to help him. Ultimately, though, Wapemoose turned to forgiveness.

“I did hate you in the beginning, but not any more, but I do hate what you did to my son,” she said. “I don’t know what your childhood was like, your upbringing, things that happened to you that got you to this point of being violent. I hope you get the help you need to get over this barrier and become a better person. I am trying very hard to forgive you, hopefully in time.”

Wapemoose ended with a quote from The Bible, Matthew 6:14, “For if you forgive men when they sin against you, your heavenly Father will also forgive you; but if you do not forgive men their sins, your Father will not forgive your sins,”

Defence submissions
The defence downplayed Madsen’s culpability presenting details of a civil suit launched by Dennis Peepeetch that names Madsen, but also alleges negligence by the City Limits, bar staff, Crestview Ambulance, Sunrise Health regions and doctors who treated him.

Rusnak said this is evidence that mitigates Madsen’s sole responsibility for Peepeetch’s ultimate condition. He suggested that had things been handled differently following the incident, Peepeetch may not have wound up paralyzed. He also argued that had Madsen merely pushed the other man away, a similar result could have ensued. The defence used one of the Crown cases—in which a man was shoved, lost his balance and smashed his head on a curbside sustaining life-changing injuries—to illustrate how unintended consequences can result from a spontaneous, if reckless, reaction to a provocation.

Rusnak argued that sentencing is a highly individualized process, “as much art as science,” and must be taken on a case-by-case basis.

He referenced Section 718.2(e) of the Criminal Code, which states: “all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

Commonly known as “Gladue factors” after the Supreme Court case that established the standard, these are things such as poverty, household violence and family addictions. Rusnak painted a picture of an impoverished, abusive childhood that predisposed Madsen to this kind of incident.

“He is not Aboriginal, but he is Gladue,” the attorney said.

Reis agreed that the standard applies to all offenders with negative socioeconomic factors in their backgrounds.

Rusnak disputed the range of four to six years saying the Madsen case was a “unique” set of circumstances and that the Crown precedents invariably involved recidivists with serious criminal records in unprovoked or premeditated incidents.

He said it did not make sense to take a low-risk, gainfully-employed, productive member of society with no criminal record and put him in jail for five years.

He said his client could not offer the apology the Crown expected of him because of the pending civil action.

Reis reserved his sentencing decision until June 23.