R. v. Thanancheyan, 2012 ONCJ 487

Ontario Court of Justice

Between:

Her Majesty the Queen

Mr. T. Pittman and Ms. M. Petrie for the Crown

— And —

Mr. C. Assie

Thiruchchelvan Thanancheyan for the defendant

Reasons for Sentence

Justice Lipson:

Facts

1Mr. Thanancheyan pleaded guilty to charges of careless use of a firearm and causing a disturbance by being drunk in a public place. The Crown proceeded by way of summary conviction.

2These offences occurred on November 7, 2010. The accused was employed at an auto body shop in Scarborough. He was at his workplace around 10:30 p.m. He had spent the evening drinking with some co-workers and became intoxicated. The accused had recently acquired a shotgun. He returned home and came back to the shop with his shotgun that was loaded. Mr. Thanancheyan walked into the work area of the auto shop and pointed the firearm at the ceiling. He then fired one shot and then left the premises. There were witnesses present including a person who happened to be delivering parts. That individual reported the incident to police.

Personal Circumstances

3Mr. Thanancheyan is a 39 year old first offender. His personal circumstances are set out in detail in both the presentence report and a report authored by Dr. Julian Gojer, a forensic psychiatrist retained by the defence. It would appear that these offences are out of character for Mr. Thanancheyan. Originally from Sri Lanka, Mr. Thanancheyan has lived in Canada since 1990 and has maintained employment as an auto mechanic. He is considered by his peers and family to be an otherwise responsible individual possessing a strong work ethic and pro-social values. Mr. Thanancheyan is married with an infant son. He also has a very strong liking for firearms. In fact, he had fourteen properly registered firearms in his residence which were seized by the police. The accused also has a history of heavy drinking. He told Dr. Gojer that he has not consumed alcohol since being charged with these offences. As a result of these charges, he was fired from his job but has since started his own auto mechanic business and is also employed by another shop.

Crown and Defence Submissions

4The Crown is seeking a custodial sentence of one year as well as a probationary period for one year. The defence submits that a suspended sentence or a conditional sentence is fitting in all the circumstances.

Mitigating Factors

5There are several mitigating factors present in this case. The accused has pleaded guilty. He has no prior record and has a good work history. Since his arrest Mr. Thanancheyan has taken all necessary steps to transfer the entirety of his gun collection to a third party. The offences are out of character.

Aggravating Factors

6There are also aggravating factors. The accused engaged in highly dangerous conduct. It is only by good fortune that no one was seriously hurt. Guns and alcohol can, of course, be a deadly combination. There were others present when, in his drunken condition, the accused fired a shot into the shop ceiling. The potential for serious harm or death cannot be understated.

Sentencing Principles

7I have reviewed the sentencing cases submitted by counsel. While the facts in those cases differ from those here, the decisions do stress that general and specific deterrence and denunciation are the predominant sentencing objectives when the careless use of firearms is involved. That is so here as well. At the same time, every case requires an individualized approach in the determination of a fit sentence.

Application of Kineapple Principle

8I considered whether the rule in Kineapple applies. That rule says that an accused cannot be convicted for more than one offence arising out of the same delict. For the Kineapple principle to apply there must be a sufficient factual and legal nexus between the charges. The factual nexus will be established if the same act of the accused underlies each of the charges. The legal nexus will be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kineapple principle. Here, the circumstances of two offences are closely related but contain different elements both factually and legally. At the same time, the offence of causing a disturbance by being drunk in a public place is, of course, a relatively minor one that would ordinarily attract a discharge or a fine for a first offender. The fact that the accused was intoxicated when Mr. Thanancheyan fired a shot into the ceiling of the shop is an aggravating factor. His intoxication and resulting impaired judgment significantly heightened the risk of harm to others who were present at the time. It is doubtful that the accused would have taken a loaded shotgun to his workplace if he had not been under the influence of alcohol. At the same time, the cause disturbance charge should, in my view, result in a concurrent sentence because of its close factual connection to the more serious charge of careless use of a firearm.

Sentencing Analysis

9Mr. Thanancheyan pleaded guilty and is remorseful. He has turned over his substantial firearm collection to a third party. He is a first offender with pro-social values including a strong work ethic. I have the overall impression that he took his recently acquired shot gun to the shop to simply show it off to his workmates. His firing the gun into the ceiling was a foolish, impulsive but also dangerous act. The offence was out of character. It would also appear that Mr. Thanancheyan has an alcohol abuse issue that needs to be addressed through treatment and counselling.

10While the evidence is that it is likely that Mr. Thanancheyan is a low risk to reoffend and does not present a danger to the community, it is my view that neither a suspended sentence nor a conditional sentence would adequately address the primary sentencing objectives of deterrence and denunciation. The careless use of a loaded firearm in these circumstances must be denounced and deterred. A custodial sentence is necessary to effectively promote those sentencing objectives. The accused's conduct here constituted a public danger and requires stronger deterrent and denunciatory considerations than could be achieved by a conditional sentence. Like-minded people must be deterred from engaging in this kind of conduct. At the same time, the accused is a first offender and the principle of restraint must be taken into account. As well I note that the Crown elected to proceed summarily on the most serious charge. The cause disturbance charge is a "straight" summary offence.

11In my view, a custodial sentence is warranted. At the same time I am prepared to impose an intermittent sentence in order to permit the accused to maintain his employment as he is the sole breadwinner for his family.

Sentence

12The accused is sentenced to 90 days to be served on an intermittent basis.

13He will be placed on probation for 15 months with the following conditions:

• Report today and thereafter as required.
• Attend for counselling for alcohol abuse as recommended by probation officer.
• Sign releases.
• Not to own, possess or carry any weapons as defined by the Criminal Code.
• Perform 50 hours of community service to be completed within 9 months of the issuance of this order.
• Show written proof of completion of community service to your probation officer.

14There will also be a s.109 order for a period of five years.