Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Stephen Petlichkov

Before: Justice Borenstein

Sentencing submissions heard on: January 23, 2013 Reasons for Sentence released on: January 23, 2013

Counsel:

• Ms. E. Rokach, for the Crown
• Mr. P. Scully, for Stephen Petlichkov

BORENSTEIN J.:

Introduction

[1] This is the sentencing of Mr. Petlichkov.

[2] On December 4, I found Mr. Petlichkov guilty of assault causing bodily harm after a trial. The victim is 25-year-old Saquib Raja. Saquib and his friend Rajiv were coming home from a wedding on the GO train. They got off the train at the same stop as Mr. Petlichkov, his brother and their wives or fiancée. I will not repeat my findings of fact in this sentencing decision. They were set out in detail in my reasons for judgment. Suffice it to say, following an ongoing verbal dispute between several members of Mr. Petlichkov's family and Rajiv and Saquib, Mr. Petlichkov punched Rajiv six to eight times in the face breaking his nose and causing him to slide off the hood of his car onto the ground. While that was occurring, Saquib tried to intervene to assist Rajiv. Saquib was thrown from the scene and onto the ground. Thereafter, Mr. Petlichkov went over to Saquib, who was still on the ground, and punched him in the face breaking his nose. Mr. Petlichkov is between 6 feet and 6 feet 3 and weighs 230 pounds. Saquib was 5 feet 10 inches tall and weighed 165 pounds. Rajiv weighed 135 pounds. Mr. Petlichkov was not charged with assaulting Rajiv. He is not to be sentenced in relation to Rajiv.

[3] There were racist comments directed toward Rajiv and Saquib during the initial verbal dispute although Mr. Petlichkov took no part in those comments.

[4] [Editor's note: text omitted at the court's request.]

[5] I also heard from Mr. Petlichkov. His comments were amongst the most eloquent I have heard.

Impact on the Victim

[6] The impact of this offence on Saquib was obvious during his testimony and from the victim impact statement. He was 25 years old at the time of trial. He was in his fourth year of studies at the University of Toronto. His nose was broken and displaced. Surgery was required to re-set it. He had two black eyes. He suffered a urinary tract infection following the surgery. He went through three forty day courses of treatment with antibiotics. The injuries were not minor. The effects, physically and psychologically continue to this day.

Mr. Petlichkov's Background

[7] Let me turn to Mr. Petlichkov's personal circumstances.

[8] He is 35 years old. He is married. He has two young children. One is five years old. The other is three. He is a licenced electrical maintenance worker. He is a member of a union and has been steadily employed for seven years doing electrical construction. He does not have a criminal record.

[9] His prospects for the future are no doubt good. Until today, he had shown absolutely no insight or acceptance of responsibility for his actions, let alone remorse. I found that somewhat surprising given that, even on his own version of events, which I have rejected, he would have been found guilty due to excessive force. His comments today in Court were lengthy, heartfelt, eloquent and sincere. While he did focus on the impact of this offence on his relationship with his family, it went beyond that.

Crown's Position on Sentence

[10] The Crown seeks a sentence of six months in jail followed by probation. The Crown justifies its position on the basis of the nature and severity of the assault and the impact upon the victim.

[11] The defence position is that Mr. Petlichkov ought to be granted a conditional discharge. A criminal record would impact on his employment and his ability to travel.

Principles of Sentencing

[12] A fit sentence must take into account both the offence commit and the offender.

[13] The Criminal Code provides that a just sentence must be proportionate to the gravity of the offence and the responsibility of the offender and must have one or more of the following objectives:

a) To denounce unlawful conduct;

b) To deter the offender and other persons from committing offences;

c) To separate offenders from society where necessary;

d) To assist in rehabilitating offenders;

e) To provide reparation for harm done to victims or to the community; and

f) To promote a sense of responsibility in offenders, an acknowledgement of the harm done to victims and to the community.

[14] The weight to be given to those factors will vary depending on all the circumstances of the case.

[15] A sentence should also be as minimally restrictive as possible consistent with the purposes and principles of sentencing especially with respect to a first offender, even first offenders convicted of offences involving violence.

[16] Ultimately, if a reasonable balance is struck, the sentence should contribute to the protection of the public.

[17] With those principles in mind, let me turn to the aggravating and mitigating factors in this case.

Aggravating Factors

[18] The victim was assaulted while he was down on the ground. He was punched hard in the face by a very strong man. His nose was broken. He was trying to assist his friend who was being repeatedly punched by the accused. The injuries have had serious and lasting effects to Saquib. This was not self defence. There was no need to punch Saquib while he was on the ground. This was not a fight, much less a fair fight.

Mitigating Factors

[19] By way of mitigation, not much can be said as it relates to the offence. The mitigating circumstances in this case relate to the fact that Mr. Petlichkov has no prior criminal record. He is a first offender. He works. He supports his family. He has a close and supportive family.

[20] Mr. Petlichkov's prospects for rehabilitation are good and must be given considerable weight.

[21] So too must the principles of denunciation and deterrence, particularly general deterrence.

[22] Prior to today, there was no indication of remorse or insight shown which could have been mitigating.

[23] Even apart from Mr. Petlichkov's comments today, I strongly suspected that this entire trial process has had a significant salutary impact upon him. That he does not want to come back to Court. That in the future, he is more likely to think before he acts. I based that suspicion on the fact that he was 35 years old, has no record and otherwise lives a responsible life. Apart from his comments today, it was my view that specific deterrence is less a factor than general deterrence in this case. His comments today reinforce that belief.

Decision

[24] Balancing these factors then, in light of the principles and purposes of sentencing, what is the appropriate sentence for Mr. Petlichkov?

[25] The Crown's position of six months in custody followed by probation is not unreasonable in all of the circumstances.

[26] The defence position of a conditional discharge is not a reasonable submission. It fails to appreciate the seriousness of the offence, the reasons for judgment and the impact upon the victim. While it is in Mr. Petlichkov's interest to receive a conditional discharge, it would be contrary to the public interest.

[27] I must sentence this offender, for this offence.

[28] In my view, a custodial sentence of some length is required to reflect the circumstances of this offence and this offender. A sentence of six months, however, is not required. It would not take into account Mr. Petlichkov's background and his prospects for rehabilitation. As he stated so eloquently, these 37 or 40 seconds have to be balanced against a life well lived.

[29] But a non-custodial sentence would not adequately denounce this conduct.

[30] Given the period of time being considered, a conditional sentence is not precluded. It is available if I am satisfied that it would not endanger the safety of the community and would be consistent with the fundamental purposes and principles of sentencing.

[31] There is no real issue that imposing a conditional sentence upon Mr. Petlichkov would endanger the community.

[32] The real question is whether I am satisfied that a conditional sentence is consistent with the fundamental purposes and principles of sentencing.

[33] Courts have held that a conditional sentence, in appropriate cases, can properly express the principles of deterrence and denunciation although, clearly, a conditional sentence will not have the same denunciatory effect as a sentence of incarceration.

[34] A conditional sentence may be longer than an otherwise appropriate period of incarceration and may include terms to give it a punitive element in order to enhance the effect of the conditional sentence: see R. v. R.N.S., 2000 SCC 7, (2000), 140 C.C.C. (3d) 553 (S.C.C.); R. v. Killam, [1999] O.J. 4829 (Ont. C.A.); and R. v. Shoker, 2006 SCC 44, (2006), 212 C.C.C. (3d) 417 (S.C.C.).

[35] Given that Mr. Petlichkov is a first offender, and given his background, I am of the view that a conditional sentence coupled with probation can result in a significant sanction and a sufficient sanction in this case. It will also allow Mr. Petlichkov to continue working and support his family. It may be that he will have to change jobs. Hopefully not but that is not the only consideration. A conditional sentence would reflect both the aggravating circumstances and give weight to his rehabilitative potential.

[36] Had this been a sentence of custody in the ordinary fashion, I would have sentenced Mr. Petlichkov to 90 days in jail followed by probation. Given that I intend to impose a conditional sentence upon him, he shall be sentenced to a period of six months to be served in the community.

Conditions of Sentence

[37] You will be subject to the mandatory terms of a conditional sentence. For the first three months of the conditional sentence, you shall remain confined to your home residence except for the purpose of approved employment obligations, medical appointments, religious services and legal obligations regarding compliance with this conditional sentence. You shall provide your conditional sentence supervisor with a current schedule of work hours, medical appointments and religious services. Your supervisor, in his or her discretion, may incorporate these into a written letter of permission to be out of your residence and such a letter shall at all times be carried on your person while out of your residence and you are obliged upon demand by a peace officer to produce the said letter. You may obtain from your supervisor written permission to be absent from your residence for any reason deemed appropriate by the supervisor. Such written permission shall be carried on your person at all times while out of the residence and shall be produced on demand to a peace officer.

[38] You shall reside where directed by your conditional sentence supervisor and not change your address without prior permission of your supervisor.

[39] You shall seek and maintain employment.

[40] You shall remain in Ontario except for scheduled trips related to your employment. You shall provide your conditional sentence supervisor with a detailed itinerary prior to any such departure.

[41] You shall take counselling for anger management if directed by your conditional sentence supervisor and, if so directed, you are to sign all releases to enable your conditional sentence supervisor to monitor your compliance with this term.

[42] You shall have no contact or communication, directly or indirectly, with Saquib Raja or Rajiv Ramden nor are you to be within 100 metres of anywhere you know them to be.

[43] For the remaining three months of your conditional sentence, you will be subject to all of the same conditions except, rather than house arrest, you will be subject to a curfew requiring you to be confined in your residence each and every day from 10 pm to 6 am with all of the same exceptions.

[44] Following your conditional sentence, you will be placed on probation for one year. You will be bound by all of the same conditions with the exception of the curfew.

[45] There will also be an Order that you provide a sample of your DNA.

Released: January 23, 2013

Signed: "Justice Borenstein"