Court File and Parties
COURT FILE NO.: CR-17-50000184-0000 DATE: 20180706 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – DANIEL STOJANOVSKI and DARKO STOJANOVSKI Accused
Counsel: Scott Arnold, for Her Majesty the Queen Robert Chartier, for Daniel Stojanovski Mary Cremer, for Darko Stojanovski
HEARD: June 29, 2018
Reasons for Sentence
DUNNET J. (Orally)
[1] This is another tragic case involving the rampant and escalating gun violence in the streets of Toronto.
[2] On May 10, 2016 Daniel Stojanovski and Darko Stojanovski went into a residential neighbourhood with loaded 40 caliber handguns in their waistbands. Darko Stojanovski had an argument with Nassundu Williams about Marcus Garvey, a Jamaican political activist. The argument led to a physical fight between Darko Stojanovski and Mr. Williams. After the fight, Mr. Williams told the two men not to come back to the neighbourhood.
[3] Daniel and Darko Stojanovski got into their car in the parking lot, which was located in the middle of the residential neighbourhood. They drove their car towards Mr. Williams and, in a cold-blooded and senseless shooting, they fired their guns at him five times at close range in broad daylight.
[4] The first shot hit Mr. Williams in the front and when he turned to run for his life, they continued to shoot him in the back and did not stop until he was down. They fled in their car, unaware of whether Mr. Williams was dead or alive. He was catastrophically injured and rendered an incomplete quadriplegic.
[5] A jury found Daniel Stojanovski and Darko Stojanovski guilty of attempted murder and discharging a firearm with intent to endanger life.
[6] The Crown seeks a sentence of life imprisonment. The defence submits that a sentence of 12 to 15 years is appropriate.
[7] In R. v. Varga (2001), 2001 ONCA 8610, 159 C.C.C. (3d) 502 (Ont. C.A.) where a life sentence for attempted murder was upheld, Doherty J.A. stated at para. 95:
The slight tilt of Mr. Suzana’s head was literally the difference between a murder and an attempted murder. [The offender] stands convicted of attempted murder rather than murder by pure luck. His culpability is hardly distinguishable from that of a murderer.
[8] In this case, it is pure luck that one bullet or a combination of bullets did not kill Mr. Williams.
[9] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
- to denounce unlawful conduct and the harm done to victims or to the community;
- to deter the offender and others from committing offences;
- to separate offenders from society where necessary;
- to assist in rehabilitating offenders;
- to provide reparations for harm done to victims or to the community; and,
- to promote a sense of responsibility in offenders and acknowledgement of harm done to victims or to the community.
The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[10] In R. v. Deeb, 2013 ONSC 7870, Kelly J. imposed a life sentence on a 21-year-old offender who shot the victim several times at point blank range at midday at a busy intersection in Toronto, rendering him a quadriplegic. The offender had a criminal record, which included robbery and assault.
[11] In R. v. Brown, 2009 ONCA 563, the Court of Appeal for Ontario upheld a sentence of life imprisonment where the victim was shot six times at point blank range in a parking lot, rendering him a paraplegic. The offender did not have a criminal record. Some evidence suggested that there was a good prospect for rehabilitation, while other evidence did not. At para. 33 of R. v. Brown, the court held:
Finally, we reject the appellant’s claim that the sentence imposed was outside the applicable range of sentence for similar offences and offenders. The attempted murder in this case involved the use of a gun without warning in a public place where other citizens, including children, were present and at potential risk, in apparent retaliation for some minor slight. As this court has repeatedly said, the use of guns in public places in Toronto cries out for lengthy sentences. The trial judge took the serious concern of growing gun violence in Toronto into account. This was a proper and necessary consideration.
[12] The defence relies on the following cases: R. v. Situ, 2010 ONCA 683; R. v. Sutherland, 2018 ABCA 129; R. v. Anthony, 2014 ONSC 2948; R. v. Williams, [2012] O.J. No. 4667; and R. v. Smith, 2012 NSCA 37. I cite two of those cases, although they are all distinguishable on their facts.
[13] In R. v. Situ, at para. 7, the Court of Appeal for Ontario upheld the offenders’ 15 year sentences for a “horrific shooting that occurred in a public place and rendered the victim a quadriplegic.” Mr. Situ committed the crime while serving a conditional sentence for another violent crime and showed limited potential for rehabilitation.
[14] In R. v. Anthony, John MacDonald J. imposed a sentence of 11 years for attempted murder after the Crown sought a sentence of 14 years and the defence sought a sentence of 10 years. The 23 year old offender shot the victim 4 times in an area close to residential housing. The victim’s injuries made it difficult for him to walk. There was no medical prognosis or victim impact statement.
[15] The victim impact statement of Mr. Williams and his common law wife Shanique Francis was read to the court by Ms. Francis. It was evident from listening to her that this event has left them and their three young children struggling emotionally, physically and financially.
[16] Ms. Francis stated that prior to this event, Mr. Williams was a happy man filled with love and a sense of humour. He was hard-working and the sole provider for his family. Now he is confined to a wheelchair for life with no use of his legs and limited use of his hands. He has sustained numerous infections and will require surgery to alleviate the pain caused by his pressure wounds. He suffers from depression and anxiety and feels like “a prisoner in his own body.”
[17] Daniel Stojanovski and Darko Stojanovski are twin brothers. They are 34 years old and single. They came to Canada from Macedonia with their parents when they were five years old. They lost their father at an early age and were raised by their mother. Fifteen years later, their mother met their step-father. Letters filed with the court attest to the fact that they were raised in a good family environment and have a close-knit family.
[18] At the time of the shooting, Daniel Stojanovski worked as a part-time delivery truck driver. Since his incarceration, he completed high school credits and participated in workshops and Bible studies. He is a server responsible for serving meals to inmates and cleaning the range.
[19] At the time of the shooting, Darko Stojanovski was on medical leave from the company where he worked as a delivery truck driver. Since his incarceration, he obtained his high school diploma and started a course in business management. He has completed programs, including anger management, employment and Bible courses. He has been promoted to head server. He also cleans the range. His long term goal is to operate a delivery truck company with his brother.
[20] I consider the following to be aggravating factors:
a) Daniel Stojanovski and Darko Stojanovski were driving and walking in Toronto with loaded handguns and with obvious contempt for the lives and safety of others; b) They fired their guns in a residential neighbourhood filled with families and children; c) Before opening fire, they yelled at others to get out of the way; d) There was the real possibility for others to be hit and seriously wounded or killed; e) Their actions shattered the life of Mr. Williams; and, f) Daniel Stojanovski has a record, albeit dated, for assault causing bodily harm.
[21] In mitigation, Darko Stojanovski is a first offender. In my view, given the gravity of the offence, the absence of a criminal record does not play a major role in his sentence. A further mitigating factor is that Daniel and Darko Stojanovski have the support of their family.
[22] Although they are not aggravating, there is an absence of the following mitigating factors:
a) Mr. Williams had to testify at the preliminary hearing and at trial; b) Darko and Daniel Stojanovski are not youthful offenders; and, c) Darko Stojanovski has shown no remorse.
[23] The defence seeks enhanced credit under s. 719(3.1) of the Criminal Code at a rate of 1.5 days for 778 days of pre-sentence detention or 1167 days (38 months). The Crown does not oppose enhanced credit for pre-sentence detention.
[24] The defence seeks additional mitigation beyond the 1.5 enhanced credit as a result of Daniel and Darko Stojanovski serving part of their pre-sentence detention in “lockdown” conditions due to staff shortages in the correctional institution. They have filed affidavits setting out the conditions of pre-sentence incarceration and the adverse effect on them flowing from the lockdowns. The Crown does not oppose additional enhanced credit, but asks the court to rely on the records compiled by the correctional institution rather than those kept by the Stojanovskis.
[25] In his affidavit, Darko Stojanovski states that on a full lockdown day, he is required to be in his cell for 35 hours (one full day through the following morning). When the inmates are locked down for more than 2 consecutive days, they are put on a shower program in which 4 to 6 inmates at a time are given 20 minutes to shower and use the telephone. The range has two showers and four telephones. As a result there is often not enough time for the inmates to shower and use the telephone. He does not state whether the shower program has affected him adversely.
[26] In his affidavit, he states that during lockdown days, he is depressed and his anxiety levels increase due to not being able to move around, having limited contact with other people, not being able to shower, having no privacy when using the toilet and not getting fresh air. He also states that consecutive lockdowns are extremely difficult to endure and the stress becomes almost unbearable.
[27] Darko Stojanovski recorded a total of 379 full and partial lockdown days since his incarceration. Business records from the Toronto South Detention Centre differ from his records and list 268 full and partial lockdown days caused by staff shortages.
[28] In his affidavit, Daniel Stojanovski states that on a full lockdown day, he is in his cell for a minimum of 38 hours. He does not have access to a telephone, the common area, television, the yard, fresh air, or a shower and he is not provided with a clean change of clothing. He has no privacy when he uses the toilet in his cell. As a result, his stress and anxiety levels increase, and because he cannot walk around or exercise, he has recurring back and shoulder pain. After consecutive lockdowns, tensions on the range are high and his anxiety increases.
[29] Daniel Stojanovski recorded a total of 374 full lockdown days since his incarceration. Business records from the Toronto South Detention Centre differ from his records and list 266 full and partial lockdown days caused by staff shortages.
[30] In R. v. Duncan, 2016 ONCA 754, the Court of Appeal for Ontario held at para. 6 that “in the appropriate circumstances, particularly harsh pre-sentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1) .”
[31] I accept that Daniel Stojanovski and Darko Stojanovski were subject to harsh conditions from lockdowns caused by staff shortages and that the impact of those conditions was detrimental to their well-being. Despite the lockdowns, they have each taken positive rehabilitative steps. Accordingly, I am prepared to exercise my discretion and grant them a further credit of five months.
[32] Although I have considered their rehabilitative efforts, the objectives of denunciation and deterrence are of primary importance in this case. Daniel Stojanovski and Darko Stojanovski committed attempted murder by firing their guns in a populated public place, jeopardizing the lives of others. They did so out of rage and anger. Their brutal and senseless acts caused catastrophic and permanent paralysis to a husband and father whose family life has been altered forever.
[33] The public must be protected from these two men and other like-minded individuals must be deterred from resorting to the cruel and callous use of guns in our communities with devastating results.
[34] Accordingly, I sentence Darko Stojanovski and Daniel Stojanovski each to 18 years in the penitentiary. Taking into consideration enhanced credit for pre-sentence detention and conditions resulting from lockdowns due to staff shortages, they will each serve 14 years, 5 months.
[35] The conviction for discharging a firearm with intent to endanger life is stayed pursuant to R. v. Kienapple, 1974 SCC 14, [1975] 1 S.C.R. 729.
[36] In addition, Daniel Stojanovski and Darko Stojanovski will each be subject to the following ancillary orders:
a) An order prohibiting them from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life pursuant to s. 109(3) of the Criminal Code; b) An order that bodily samples will be taken for the purpose of forensic DNA analysis pursuant to s. 487.051 of the Criminal Code; and, c) An order that the four handguns, six magazines, four red bullets and two scopes seized by the police at their apartment be forfeited to Her Majesty the Queen in Right of Ontario.
