An Nunavut judge has sentenced a Clyde River man to one day in custody for biting off most of his neighbour’s right ear.
Mac Kyak had already been in jail 165 days when he pleaded guilty to the aggravated assault of Joshua Qaqasiq this past April 6. With enhanced credit being assigned to his remand time at the rate of 1.5 to 1, Kyak had served the equivalent of 248 days in custody by the time he wound up in the Nunavut Court of Justice for sentencing.
“I find that further incarceration of Mr. Kyak would inappropriately emphasize deterrence and denunciation over the principles of restraint and rehabilitation,” Justice Mark Mossey wrote in a recent decision out of Iqaluit.
“Mr. Kyak is young, has sworn off drinking, and will re-enter society today with the ability to choose a path forward having served a significant period of time in custody.”
The judge sentenced the 23-year-old to “one day in custody which will commence and be completed today,” Mossey wrote in his decision, dated Sept. 18.
He also handed Kyak two years of probation.
The court heard “Kyak is Inuit and has lived the entirety of his life in Clyde River, Nunavut.”
Prior to his guilty plea in this case, he had no criminal record.
Mossey said he took Kyak’s Indigenous status into consideration for the sentencing, acknowledging that meant he should consider “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community.”
The court heard that “the main aggravating factor in this case is the serious, violent, and intimate nature of the bite wound inflicted upon Mr. Kyak’s victim. The photographs of the victim’s significantly maimed ear along with the numerous reconstructive surgeries that are necessary to address what was done by Mr. Kyak, evidence the impact this aggravated assault had, and will continue to have, on Mr. Qaqasiq. This aggravated assault has literally scarred Mr. Qaqasiq for life. Denunciation and deterrence are thus a substantial consideration as I consider the appropriate sentence for Mr. Kyak.”
But Mossey said there are “many mitigating factors that are in play on this sentence. Mr. Kyak lacks a concrete recollection of the criminal actions he undertook on April 6 due to his level of intoxication on that day. Despite this, he has taken responsibility for his actions at a relatively early stage, before the complainant was required to give evidence at a preliminary inquiry.”
Kyak’s “sworn off alcohol as a result of this crime and is agreeable to an alcohol abstention term being included on a lengthy period of probation,” said the judge. “Such early signs of rehabilitation are extremely encouraging and illustrate Mr. Kyak’s promise of moving forward on a pro-social path. The sentence must take into consideration how best to assist in Mr. Kyak’s continued rehabilitation.”
The court heard that, on April 6, “Qaqasiq awoke at his home in Clyde River, Nunavut, to the sound of his snow machine being attacked in his front yard by his neighbour, Mac Kyak. Mr. Kyak was severely intoxicated.”
Qaqasiq tried to stop Kyak from “further damaging the machine,” said the decision. “A physical altercation ensued which culminated in Mr. Kyak biting off most of Mr. Qaqasiq’s right ear.”
Photos of the bite wound are graphic, said the judge. “They clearly depict the significant bodily harm and disfigurement suffered by Mr. Qaqasiq. Mr. Qaqasiq was medically evacuated from the community to undergo treatment which has since included a number of reconstructive surgeries to the right ear. More surgeries are anticipated.”
Kyak was also charged with doing more than $5,000 worth of damage to his biting victim’s snow machine, but after he pleaded guilty to the assault, that charged was stayed.
While “Kyak was significantly intoxicated during the assault, he did have a fragmented recollection of what took place and did not dispute the facts as relied upon by the Crown,” said the decision.
“Most importantly, Mr. Kyak accepted that he bit off a large portion of the complainant’s right ear which resulted in Mr. Qaqasiq suffering a disfiguring injury. The guilty plea was therefore accepted.”
Kyak’s lawyer “asserted that the initial attack on the snow machine was in retaliation for an incident between the complainant and a friend of Mr. Kyak’s earlier in the day,” said the decision.
The Crown contested that version of events.
“I accepted the Crown’s version of the facts as read into court,” said the judge. “I did not take into consideration, for the purposes of sentencing, the explanation put forward by defence that the aggravated assault was in retaliation for an alleged previous bad act of the complainant.”
His lawyer argued unsuccessfully for a suspended sentence.
“Essentially, counsel argues Mr. Kyak has been sufficiently punished through the lengthy remand period and it would be in Mr. Kyak’s best interest not to have his criminal record reflect a significant period of incarceration being served for this offence,” said the decision. “Defence argues it may negatively impact future employment or educational opportunities should a criminal records check be conducted and a period of incarceration be noted.”
As part of the terms of his probation, “Kyak is to abstain from communicating, directly or indirectly, with Mr. Qaqasiq or from going to any place or geographic area he is reasonably expected to be, with the caveat being that as the two individuals are neighbours in Clyde River, and incidental contact is to be expected,” said the decision.
Kyak must “report to a probation officer within seven days of his release from custody,” attend counselling, and abstain from alcohol, it said.
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