minicounsel

Ontario Court of Justice

Between: Her Majesty the Queen — and — Azad Yousuf

Before: Justice A.J. Hall

Heard on Reasons for Judgment: July 21, 2015

Counsel:

J. Hanna for the Crown
J. Mazin for the Accused

Introduction

1After a long trial, Mr. Azad Yousuf was convicted by me of two counts of assault, one count of threatening death, and one count of assault causing bodily harm.

2He is before me today to be sentenced.

Circumstances of the Offence

3The offences happened in the context of a domestic relationship between Mr. Azad Yousuf and his former wife.

4In 2010 Mr. Azad Yousuf met his former wife in Lahore Pakistan. The meeting was a result of the plan for an arranged marriage by members of their respective families. They were married in January 2011, and the wife came to Canada in October 2012.

5The couple lived in a rented basement apartment in Scarborough, that's where the offences occurred. The assault causing bodily harm resulted from a fight between the parties over a cell phone and Mr. Azad Yousuf bit the victim on her left shoulder.

6The assaults resulted from Mr. Azad Yousuf pushing and pressing on the victim's throat and neck area. The victim was slapped in the face as well. During the altercation Mr. Azad Yousuf threatened to kill the victim and her family.

The Crown's Position

7Crown counsel Mr. Hanna submitted I should impose a 90 days custodial sentence on Mr. Azad Yousuf, minus the equivalent of eight days pretrial custody. This sentence he recommended to be served intermittently given that Mr. Azad Yousuf has full-time employment.

8The sentence is to be followed by a two-year probationary period. The probation order should include the following terms:

a) no contact with the victim,

b) a DNA order,

c) take counseling as directed by your probation officer,

d) possess no weapon as defined by the criminal code,

e) section 110 order for five years,

f) sign the necessary releases so probation can monitor compliance.

9Counsel for the crown, Mr. Hanna advanced the position that denunciation and deterrence are the chief sentencing principles applicable to this case, and that nothing short of custody would denounce the conduct of Mr. Azad Yousuf.

10Alternatively he submitted — If I am of the mind to impose a conditional sentence that it should be for period in excess of 90 days.

The Defence's Position

11Defence counsel, Mr. Mazin in his first submission urged me to note that Mr. Azad Yousuf has been on bail for two years and nine months, the first year and a half on a curfew.

12Given that Mr. Azad Yousuf has spent the equivalent of eight days in pretrial custody, the defence counsel Mr. Mazin recommended I suspend the sentence, and impose two years of probation.

13Alternatively, if I'm of the mind that custody is necessary, counsel for the defence Mr. Mazin urged me to impose a conditional sentence in the range of 3 to 4 months. This should be followed by probation for two years.

Circumstances of the Offender

14Mr. Azad Yousuf is 40 years of age; he has lived in Canada since 1997 as a permanent resident. This man has no criminal record and has been before the court for last two years and nine months.

15He works for the last five years as a taxi driver, and has a very good reputation with the taxi company.

16At his own expense, Mr. Azad Yousuf has successfully completed an anger management program with the management centre of Toronto Inc.

17The anger management program consisted of 10 one hour individual psychological counseling sessions with a focus on learning how to control anger and conflict resolution skills.

18It is the opinion of the director of the anger management centre that Mr. Azad Yousuf "as diligently gained counseling insights and learned the main anger management strategy and interventions. He is also aware of the negative consequences of inappropriate behavior, such as excessive anger when interacting with his partner." (Anger management report dated April 16, 2015)

General Principles

19The principles of sentencing which are of paramount importance with respect to this case are to be found in sections 718 to 718.2: in this analysis, the emphasis is on general deterrence, specific deterrence and denunciation. I am mindful that I must not forget the principle of rehabilitation.

Aggravating and Mitigating Circumstances

20These offences occurred in the context of a domestic relationship, and is therefore statutorily aggravating.

21The victim was new to Canada at the time of the offence occurred. She had no support system except that of her husband, and he abused her trust by assaulting her.

22There are some mitigating factors in this case: Mr. Azad Yousuf is a man of 40 years of age, without a criminal record.

23Mr. Azad Yousuf has been on bail for relatively long period without any further contact with criminal justice system.

24Mr. Azad Yousuf has taken meaningful steps to address his anger management issues. He has successfully completed an anger management and counseling programs, with special emphasis on interaction with a partner.

25Mr. Azad Yousuf has expressed remorse for his conduct before me. He stated to his counselor the following:

"This counseling has been a great learning experience. It is good to be educated in ways of managing anger, learned how to be less irritated and how to remain calm. I've applied some of these techniques in my day-to-day life in order to prevent anger and frustration."

26This would suggest to me, that he has gained some insight in his own abusive behavior and recognized that his actions towards his former wife were inappropriate and criminal.

27No victim impact statement was presented to me. The crown advised that the victim had enough of this matter. She is fearful that by providing a victim impact statement; this might impact her negatively in her community. In the final analysis I simply don't have a victim impact statement.

Sentence to be Imposed

28I am of the view that a custodial sentence is appropriate in the circumstances of these offences. The crown proceeded summarily respect these charges, as a result a conditional sentence is an available sentencing option.

29I've considered, carefully the aggravating and mitigating circumstances of this case. The circumstances of these offences, coupled with the fact that Mr. Azad Yousuf has been in bail for two years and nine months, the first year and a half with a curfew condition, and pretrial custody the equivalent of eight days.

30Mr. Azad Yousuf is a man who had no contact with the criminal justice system prior to this case, spending the equivalent of eight nights in custody must have had a sobering experience on him.

31The relatively long period he has spent on bail, particularly with the earlier restriction of a curfew, without any allegation of a breach, reveals he can follow the strictures of a court order. And has the ability to live a crime free lifestyle.

32An individual such as Mr. Azad Yousuf: I find poses no danger to the community, the prospect of recidivism seem to me to be remote. A conditional sentence in this case, can appropriately satisfy the principles of denunciation, specific and general deterrence.

33I've concluded that a custodial sentence is appropriate:

34I therefore impose a conditional sentence of four months.

35Once the custodial portion of the sentence is completed, you will be on probation for 12 months.

The terms of the probation are:

the statutory terms keep the peace and be of good behavior,
not to have any contact with your former wife Nabeela Khurshid,
take counseling as directed by your probation officer if deemed necessary,
sign the necessary releases to ensure compliance if deemed necessary by your probation officer,
you are not to possess any weapon as defined by the criminal code.

Ancillary orders: section 110 weapons prohibition for five years.

36Mr. Azad Yousuf he will provide a sample of your DNA material to the authorities for a national database.

Conclusion

37Your sentence with respect to: two counts of assault, one count of threatening death, one count of assault causing bodily harm, is four months in custody to be served in the community.

38I now invite both counsels to make submission with respect to terms of conditional sentence.

39This is followed by 12 months probation.

My sincere thanks to both lawyers for their assistance in this case.

Released: July 29, 2015

Signed: Justice A.J. Hall

R. v. Yousuf, 2015 ONCJ 423

Case Summary

Introduction

Circumstances of the Offence