R. v. Grewal
Court: Ontario Court of Justice
Date: May 20, 2014
Citation: 2014 ONCJ 252
Parties
Between:
Her Majesty the Queen
— AND —
Parminder Grewal
Before
Justice D.P. Cole
Hearing Dates
September 27, November 13, 2012; June 27, September 27, 2013; January 21, March 26, May 20, 2014
Reasons for Sentence released on: May 20, 2014
Counsel
For the Crown: T. M. Kranjc
For the Accused: M. De Rubeis
REASONS FOR SENTENCE
COLE J.:
Background and Procedural History
[1] Regrettably this case has a rather convoluted history, some of which needs to be described in detail to ensure that the record of proceedings is clear.
[2] On September 13, 2011 the offender and the victim had a violent altercation in the garage attached to the home where Mr. Grewal lived with his family. While the parties differ as to the cause of the dispute, it is an agreed fact that Mr. Grewal struck the victim several times with some sort of homemade axe. As the victim raised his arms to defend himself, he suffered two broken arms, sustaining compound fractures that required surgery (Exhibit 1). He also suffered multiple lacerations to his arms and head (Exhibit 14). The victim was driven away from the garage by his uncle, who took him to a convenience store from which an ambulance was called. The victim was immediately taken to hospital for treatment of his injuries.
[3] The offender was arrested that evening and charged with aggravated assault, assault with a weapon, possession of a weapon for the purpose of committing an offence, threatening death and forcible confinement.
[4] The offender immediately arranged for counsel to represent him at his first bail hearing. Following the release of his client from custody, counsel went through the normal pre-trial stages of confirming his retainer, taking instructions from his client, obtaining disclosure and conducting a case management conference with Crown counsel. However, while these various processes were ongoing Mr. Grewal was rearrested on January 24, 2012 on several charges of attempting to obstruct justice and threatening, all allegedly relating to various threats made and inducements offered to the victim to dissuade him from attending court to give evidence. He was released a few days later, subject to a "global bail" on all charges.
[5] (Given the brevity of the two periods of pre-trial custody – 8 days in total - in comparison with the length of the custodial period that is in issue here, I do not propose to address the question of pre-trial custody credits, as it seems to me that it is essentially irrelevant).
[6] Given the length of time this case was expected to take, a judicial pre-trial was held before Di Zio J., at the conclusion of which it was agreed that, given the relationship between the original charges and the later allegations, a new Information containing all charges would be placed before the court and the case would proceed by way of preliminary inquiry into all charges to be held on September 27, 2012.
[7] I was the judge scheduled to preside over the preliminary inquiry. Early in the day counsel visited me in Chambers to request that court not go into session as they were negotiating a possible compromise. After some time they returned to Chambers to solicit my views as to what sentence I might impose were the accused to enter pleas to charges of aggravated assault and attempting to obstruct justice. After hearing a summary of the facts they anticipated would be relied upon, and a thumbnail sketch of the accused's background (principally his criminal record), I indicated that if he were to enter a guilty plea in lieu of embarking on a preliminary inquiry, and if he were to admit the factual allegations to be read in by the Crown, then, subject to seeing the contents of a Pre-Sentence Report (PSR), I could likely see my way clear to imposing a total custodial sentence of 3 years (supplemented by various ancillary orders which counsel agree are not in issue here).
[8] I learned during a subsequent motion to withdraw the guilty plea that the accused balked at the idea of entering a plea to any charges relating to the allegations of obstructing justice and making threats to the victim. After further discussions between counsel – to which I was not privy – the accused waived his right to a preliminary inquiry and entered a plea of guilty only to the charge of aggravated assault. When the facts surrounding this charge were read out (essentially as I have summarized them in paragraph 2 supra), Crown counsel - obviously with the concurrence of defence counsel - made no additional reference to any of the allegations surrounding the offender's attempts to obstruct justice and threatening the victim while the original charges were pending (Exhibit 4 – Transcript of Proceedings, September 27, 2012). Thus, I was not asked to impose sentence for those subsequent offences, nor was I asked to "take them into account" within the meaning of s.725. As such those charges are irrelevant to my determination of the appropriate sentence to be determined for the offence of aggravated assault.
[9] After the facts supporting the plea of guilty were read in and conceded, defence counsel then acting for the offender was careful to stipulate that "[t]here are three or four points on which [the offender] disagrees, none of which goes to the substance of the allegations [regarding the aggravated assault charge]" (Transcript of Proceedings, September 27, 2012, p. 8, lines 19-22). These somewhat mitigating factors, all of which I have factored in to the decision as to quantum of sentence that I have ultimately come to, were:
that the victim "entered the [garage] of his own volition";
that the offender and the victim exchanged "words prior to the beating which led [the offender] to lose his temper";
that "both parties…had been drinking at the time of the incident and [the victim] was also found to be under the influence of cocaine";
that it was the offender, not the victim, who called the victim's uncle to request that he come to the garage.
[10] I then remanded the offender to return for sentencing on December 4, 2012. To assist me in preparation for that hearing I ordered that a PSR be prepared, and Crown counsel indicated that a victim impact statement and updated medical reports as to the victim's condition would be made available by that date.
[11] Much of the next 18 months was taken up with a motion to withdraw the offender's guilty plea on the basis that he had been misled by his original counsel. I do not think that any useful purpose would be served in this sentencing hearing by me now reviewing in detail the evidence called and submissions made during that motion. Suffice it to say that upon completion of counsel's submissions on point, I indicated in brief oral reasons (March 26, 2014) that I expressly disbelieved the offender's evidence given in his affidavit and his testimony, that I found him to be someone whose criminal background and age clearly indicated that he was quite familiar with the workings of the criminal justice system, that his claim that he is a simple uneducated man was entirely belied by the relative sophistication of his various attempts to manipulate the process (particularly during his police interview on January 24, 2012 (Exhibit 5)), and that he (and his supporters) would now do or say anything to avoid the penalties that will flow from the sentence I will impose. In essence I indicated that I found that the offender had utterly failed his onus to demonstrate that his guilty plea should be struck.
The Positions of the Parties
[12] Crown counsel proposes that the offender should be sentenced to a custodial term of 4 years. Beyond the severity of the injuries inflicted, she argues that the objective evidence derived from the nature of those injuries and the blood spattering pattern in the garage clearly indicates that this could in no way be analogized to other sentencing decisions where an initially consensual fight became a criminal offence when the accused took out a weapon. She thus suggests that this places this case among the "high end" of the range of sentences for aggravated assaults described in the analysis of Code J. in R. v. Tourville 2011 ONSC 1677.
[13] Defence counsel agrees that the general range of sentences for aggravated assaults in this province is between 18 months and 6 years. He argues for a considerably lower sentence, in the range of 18 months to 2 years less a day. Even given the offender's criminal antecedents, he suggests that a penitentiary-length term would be too much of "a jump".
[14] Counsel jointly agreed that the following ancillary orders should be imposed:
a s.743.21 order prohibiting the offender from communicating, directly or indirectly, with the victim during the custodial period of the sentence, except through counsel;
a s.109 order prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years; and,
a s.487.051 order authorizing the taking of DNA samples from the offender.
[15] Crown counsel additionally sought a "free standing" restitution order in the amount of $500 to compensate the victim for the costs of ambulance transportation, cast removal and loss of wages. Defence counsel opposed this on the basis that there were before the court no invoices to quantify these losses. With this I agree; no restitution order will be made.
The Background of the Offender
[16] Mr. Grewal is now 48 years of age. He came to Canada from India at the age of 24. He is married with three children, ages 21, 18 and 16. His oldest child studies at university, and his younger children are in secondary school. Together with his parents, he and his wife purchased the home where they now live some 24 years ago. (The garage of this home is where the assault occurred). His wife reports that the marriage is a happy one, that her husband is a hard worker who provides emotional and financial support for his family, and that her husband and family attend religious services at their temple regularly.
[17] The offender withdrew from school in India at approximately age 15 to join the workforce, in order to assist in supporting his family. (He estimates that this was when he was in the equivalent of Grade 7 or 8). Since coming to Canada, he has worked steadily in full-time employment rather than seeking to upgrade his education. He worked for some years as a metal polisher with two companies, but left that employment because the chemicals he was required to use adversely affected his health. For the past seven years he has worked as "a core stacker which is basically an assembler of electrical transformers" for the same Toronto company. His supervisor told the writer of the PSR that the offender "is a very hard worker who carries out his duties as expected and does not require constant supervision, is always punctual…and gets along with his co-workers and supervisors". The probation officer described the offender's work history as "impressive".
[18] Because such a long time had elapsed between the preparation of the original PSR (Exhibit 10) and the sentencing date, I requested that probation officials prepare a supplementary "Stand Down" Report (Exhibit 11). The probation officer confirmed with the work supervisor that "the subject continues to be a valued employee…and again expressed positive comments about him".
[19] I agree with Crown counsel that the offender's work history, family relations and contributions to his community are all positive matters that very much stand to his credit. Unfortunately, and in contrast to the above, the PSR discloses two other elements of the offender's "maturity…character [and] attitude" that I am required to consider pursuant to s.721(3)(a) of the Code.
[20] The first of these is that at some point in his past the offender became "addicted to ground-up poppy seeds [opium] which he used to make tea [to] have a healing effect on his body" (PSR p.4). To address this, since November 2008 he has been regularly attending a methadone program under the supervision of his medical doctor. As part of this process the offender attends weekly to submit urine samples. Dr. Chernick "had nothing but positive remarks in regards to [the] subject's involvement and response" (ibid).
[21] It seems clear that the offender's drug addiction had nothing directly to do with the offence under consideration here. However, what it does suggest to me is that, given his history, Mr. Grewal is a person who should be acutely aware of how drugs (narcotic and alcoholic) can adversely affect his judgment and behaviour. When I combine this with his admitted consumption of alcohol just prior to the offence, it suggests to me that he has considerable difficulties regulating his behaviour, a factor that he is not, in my judgment, fully prepared to acknowledge and address.
[22] In this regard, I find it noteworthy that the offender has two previous convictions (1996 and 2009) for alcohol-related driving offences, for the second of which he served 14 days incarceration. I would have thought that, as a mature man with considerable family responsibilities, he would – and should - have known better than to come home from work and to start drinking in his garage. Furthermore, even if I were to accept as true every negative allegation that the offender levels against the victim (PSR pp. 4, 5), it would seem clear that the offender should have realized that drinking with a man whom he suspected of all kinds of misbehaviours might all too easily have led to extreme trouble of the kind which obviously occurred here. Though the writer of the PSR puts it charitably when he writes of the offender's previous convictions that "the subject admits to making poor choices in the past about driving after consuming alcohol", when the offender "indicates that he does not have any difficulties with alcohol over the past few years" in my judgment he does not grasp that alcohol must have been a factor that substantially contributed to the dreadful violence he inflicted on the victim in a fit of "anger and frustration". Even after making allowances for the offender's lack of formal education, his weak insight into his ongoing difficulties with alcohol consumption (sadly shared by his wife) is most troubling.
[23] Despite the positive elements I have described, I conclude from all of the material contained in the PSR that the overall picture is somewhat guarded. As the probation officer aptly puts it: "this writer has grave concerns in regards to the physical aggressiveness directed towards a societal member and the extent of injuries suffered by the victim" (p. 5). It is to this subject that I now turn.
The Victim's Injuries and Prognosis
[24] It is quite obvious from the various photographs taken at the scene and at the hospital that numerous blows were struck by the offender. Further, it is clear that the victim's attempts to escape from the garage were thwarted by the offender; both the electric garage door opener and the door between the garage and the house are marked with blood.
[25] It is equally obvious that many of the blows were struck against a victim who was trying to protect his face and head. Both the photos taken at the hospital and the "Operative Report" prepared by the surgeon (Exhibit 1, pp. 26-7) clearly disclose that the injuries sustained were defensive in nature.
[26] After a surgical procedure lasting some 3 ½ hours – necessitated by numerous fractures to both arms, as well as the need to patch his head injuries with stitches and staples - the victim remained in hospital for 8 days before he was discharged. The surgeon had installed "metal plates" in both arms between the elbow and the wrist, and the victim had casts on both arms for some weeks after leaving hospital. The victim returned to see the surgeon some weeks later; upon examination his right arm was healing appropriately, but Dr. Quinn was concerned that "his left is not demonstrating bony buildup in the fracture site" (Exhibits 13, 15).
[27] Both the offender (in the PSR) and his counsel (during submissions) vigorously denigrated the victim's credibility, arguing that the victim is a well-known drug addict, thief and layabout. Both take the position that I should believe almost nothing that the victim said about his injuries. In fact, defence counsel insisted that the victim's criminal record be filed in this sentencing hearing. For what it is worth, that record, which goes back to 2004, contains at least 5 convictions for offences of dishonesty, 11 convictions overall. Out of an abundance of caution, I propose to evaluate the victim's injuries based solely on the forensic evidence and various medical records filed. I note that in his December 2012 Victim Impact Statement (Exhibit 12) the victim complains that he is still unable to pick up his young child, is unable to return to work as a general labourer, and still suffers from headaches, back pain and "pains" in his arms. Given counsel's position and the lack of more recent medical reports, I propose to ignore the victim's assertions as to his current physical condition and limitations. Nevertheless, as a matter of common sense and experience, a sustained attack with a homemade axe, causing the severe injuries which it clearly did, must have had significantly lasting – if not permanent – physical effects.
Counsel's Arguments re Quantum of Sentence
(a) Mitigating Factors
[28] Both counsel accepted that there were considerable mitigating factors in the case at bar. Included in these were the offender's degree of family support, his work history and his involvement as a contributing member of his community.
[29] Despite the fact that the accused has vigorously argued that he should be permitted to withdraw his guilty plea, Crown counsel additionally accepted that the fact that the offender pleaded guilty should be considered to be somewhat of a mitigating factor, if only because he did not force the victim to testify.
[30] I reiterate that I additionally consider as mitigating factors the factual stipulations made by defence counsel representing the offender at the time of his plea of guilty, as delineated in paragraph 9, supra.
(b) Aggravating Factors
[31] I have already alluded to some of the aggravating factors brought out by Crown counsel – the use of an offensive weapon, the number of blows struck, the continuing assault upon a victim who appears neither to have initiated the fracas nor to have fought back, the further assault(s) when the victim sought to exit the garage, and the severity of the injuries in both the short and longer terms. Crown counsel cites all these factors to distinguish this case from other fact patterns where an initially "consent fight" becomes unlawful as a result of the offender's resort to excessive force.
[32] At para. 33 of his reasons for judgment in R. v. Tourville, supra, Code J. lists a number of trial and appellate cases where 4-6 year sentences have been imposed (or approved) for aggravated assaults. Crown counsel concedes that one of the factors listed by Code J. does not apply here, in that though Mr. Grewal has a previous criminal record, it is neither lengthy, nor does it involve violence. However, Ms Kranjc argues that what places this case in the 4 year range is what Code J. refers to as "'unprovoked' or 'premeditated' assault…with no suggestion of any elements of consent or self-defence".
[33] In her book of sentencing authorities, Crown counsel cites two of the Ontario Court of Appeal decisions referred to by Code J. In R. v. Scott [2002] O. J. No. 1210 the offender was sentenced at trial to 4 years for an attack on the victim with a broken beer bottle during a fight at some sort of party. I note first of all that this case did not involve a guilty plea; in fact, most of the report of the appellate case deals with alleged errors in the trial judge's jury instructions. The sentence appeal was principally argued on the basis of inappropriate disparity between the sentence imposed on the appellant as compared with that imposed on his co-accused (12 months conditional sentence). In dismissing the sentence appeal the Court of Appeal expressly referred to "the appellant's antecedents, which included a previous incarceration for 20 months" (para. 19; the offence(s) for which this sentence was imposed are not specified in the appellate judgment); obviously this is very different from the case at bar.
[34] Crown counsel also included in her sentencing casebook the Court of Appeal decision in R. v. Vickerson, another case referred to by Code J. in his canvass of sentencing authorities. I again note that this case did not involve a plea of guilty; as in R. v. Scott, much of the discussion on appeal was about whether certain evidentiary rulings (on alibi and identification evidence) made by the trial judge were correct. In considering the appeal against the 6 year sentence imposed at trial, the Court of Appeal noted "the appellant's [substantial] prior criminal record", which clearly does not exist in the case at bar. Furthermore, the Court of Appeal upheld the trial judge's finding that there was "some prior planning evidenced by bringing a metal bar with him, intending to use it and carrying out his plan once he arrived at the scene" (para. 58). Clearly Mr. Grewal did not like the victim; clearly he considered – rightly or wrongly – that the victim had broken into his house some months previously; clearly he thought that the victim was at least a social nuisance in the neighbourhood. However, in the circumstances of the case that I am considering Crown counsel does not attempt to argue that Mr. Grewal was lying in wait for the victim; thus, the "element of premeditation to the attack" that the Court of Appeal considered to be relevant in R. v. Vickerson (para. 60) cannot reasonably be said to exist here.
[35] I have also reviewed the other cases cited by Crown counsel in her sentencing casebook. I note that two of those cases – R. v. Fernandez [2010] O. J. No. 5720 (Ont. C.J.) and R. v. Biln 1999 BCCA 369 did not involve pleas of guilty. While Canadian courts have not gone to the extent of numerated "discounts" for guilty pleas depending on the stage at which they are entered, it seems clear to me that, despite the offender's subsequent efforts to withdraw his guilty plea, he deserves some credit for entering a plea of guilty prior to the preliminary inquiry, thereby, as properly conceded by Crown counsel, sparing the victim from having to testify.
[36] Crown counsel cited two other cases in which guilty pleas were entered to charges of aggravated assault. The first of these was the decision of MacDonnell J. in the rather odd case of R. v. Haly 2012 ONSC 2302. In that case the offender apparently mistakenly believed that the victim, an employee of a health club which the offender frequented, had "taunted him in the past". Even though he did not know the victim, the offender came up behind him and stabbed him several times. Luckily, the victim's physical injuries (several soft-tissue punctures) were not very serious, and he was released from hospital the same evening. (It goes without saying that the psychological sequelae of the assault were "tremendous"). Though the offender had no criminal record, he had an extensive history of mental illness, culminating in a "major mental illness, that being a major depressive disorder…combined with a history of severe substance abuse". In imposing a sentence of 3 years (after making an allowance for 15 months pre-sentence custody), it is obvious that MacDonnell J. was very troubled by the offender's potential future dangerousness (see paras. 35 & 39), measured against the backdrop of his explosive violence towards a person who was essentially a stranger. Though, as I have previously said, I am concerned about Mr. Grewal's seeming inability to regulate his behaviour while under the influence of alcohol, I do not see potential for acting out violently in the future as being anywhere near that of Mr. Haly.
[37] Crown counsel finally referred to the Court of Appeal's brief endorsement in the recent case of R. v. Houdaji [2013] O.J. No. 175. In that case, a sentence of 3 ½ years for aggravated assault was upheld on appeal in a case where the offender, intending to assault his wife with a tire iron, struck the victim several times when he sought to prevent the assault. Crown counsel cites this case mainly for the proposition that where – as here – an offender shows little remorse, this factor can be properly considered by a sentencing judge (see para. 4). While I generally agree that Mr. Grewal's guilty plea here should not be seen as evidence of remorse, I am of the view that this case can be readily distinguished on the basis that both the trial judge and the Court of Appeal were principally concerned with "the appellant's pattern of escalating aggressive conduct…[rendering him] at a high risk of reoffending" (para. 5).
[38] While generally agreeing with Crown counsel as to the overall range of sentences for aggravated assault, defence counsel cited one case containing a review of trial and appellate authorities in support of his suggestion that reformatory-length sentences have been (and continue to be) imposed for aggravated assaults. In R. v. Charles [2011] O.J. No. 2526 the offender and the victim had ongoing problems over repetitive instances of noise emanating from the victim's premises. The offender lay in wait for the victim, confronted him and then stabbed him once in the abdomen. The wound "was a serious one with subsequent grave consequences to [the victim's] life [both his physical health and his economic well-being]" (para. 6). Despite this the trial judge imposed a sentence of 18 months, both because the accused was a first offender, but also because he would be automatically deported if a penitentiary sentence was imposed.
[39] Defence counsel readily concedes that neither of these factors exists in the case at bar. However, defence counsel uses the cases cited by Crown counsel in that case to suggest that sentences in the 18 month to 2 years less a day range for serious aggravated assaults are by no means unknown. In addition to R. v. Tourville (where a sentence of 21 months custody was imposed upon an aboriginal accused with no previous record), reference is made in R. v. Charles to two cases where the altercations began as consent fights which got out of hand. In R. v. Moreira the court imposed a sentence of 21 months imprisonment (followed by 3 years' probation) where the victim's arms were stabbed. I have no difficulty distinguishing this case, not only because it started from a consent fight, but also because the accused in that case had no previous criminal record.
[40] The second "consent fight" case referred to by the Crown in R. v. Charles was the decision of the Court of Appeal in R. v. Basilio where a sentence of two years less one day (followed by two years' probation) was upheld on appeal. However, in addition to the element of the "consent fight", I note the two clear distinctions between that case and the facts I am dealing with. First, the offender in that case was not the initial aggressor. Second, the case involved one stab, unlike the sustained attack that Mr. Grewal inflicted on the victim.
[41] The final case referred to by the Crown in R. v. Charles was the decision of the Court of Appeal in R. v. Tusek [1999] O.J. No. 3413, where a sentence of two years less a day (followed by three years' probation) was upheld following a guilty plea to a charge of aggravated assault, where 13 stab wounds had caused "life threatening injuries". In my judgment this case too can be readily distinguished. First, unlike the case at bar Mr. Tusek was a very youthful adult. Second, unlike the case at bar, Mr. Tusek had served a lengthy period of time in pre-sentence custody (approximately 1 year). Finally – and in my view most importantly – the Court of Appeal specified that this sentence was "at the very bottom of the range".
Analysis
[42] In my judgment, having regard to the various authorities helpfully cited by counsel, I have readily come to the conclusion that a reformatory-length sentence simply does not adequately denounce Mr. Grewal's "moral blameworthiness", having regard to his age, his previous record, and, above all, the appalling violence he wreaked upon his victim. (And, to the extent that general and specific deterrence remain valid theories of sentencing, I do not consider that a reformatory-length term would adequately address those theories of sentencing either).
[43] The harder question for me to determine is what length of penitentiary term I should impose upon the offender.
[44] I have given anxious consideration to whether a sentence of two years would adequately address the principles of sentence that I must consider. I have considered that the very fact of sentencing an offender to Canada's most stringent custodial regime would itself represent a very considerable "jump" in severity of punishment, as noted by Mr. De Rubeis.
[45] I have also considered that pegging the sentence at this level would authorize me to consider imposing a probationary term (of up to 3 years). Beyond the statutory conditions common to any probation order, I have considered whether two optional conditions might both protect society and assist in the offender's rehabilitation. The first of these would be to prohibit contact between the offender and his victim (except through counsel). While I see nothing in principle being wrong with such an order, frankly, if at the age of 48 Mr. Grewal does not know enough to avoid his victim, then any protection that might ensue from such an order seems illusory. After all, even though the charges of attempting to obstruct justice are to be withdrawn by the Crown upon completion of these proceedings, the very existence of those charges suggests to me that Mr. Grewal is entirely capable of ignoring court orders to avoid his victim.
[46] The second optional condition that I have considered is whether Mr. Grewal should be ordered to take counselling for substance abuse – particularly to address his alcohol problem. I note that "alcohol counselling" was imposed as a condition of probation following his second conviction for drinking and driving (Exhibit 3, p.4, line 18-22); apparently it did little good. I see no need to impose a condition in the vague hope that something might be done. Once again it seems to me that at age 48 Mr. Grewal is the one who needs to make the choice.
[47] In my view, none of the factors outlined in the last three paragraphs persuade me that a 2 year term should be imposed.
[48] Conversely, I am not persuaded that the length of sentence proposed by Crown counsel is within the range I should be considering here. In my judgment, having looked at all of the authorities cited by counsel, despite the appalling violence involved in the attack, and despite the severity of the injuries the victim sustained, I am of the view that the principle of restraint implicit in s.718 and the principle of proportionality enunciated in s.718.1 should lead me prima facie to consider a sentence in the 3 year range.
[49] Defence counsel particularly reminds me that when plea negotiations were ongoing, I had expressed to counsel my initial view that a sentence of 3 years would likely be appropriate for both the aggravated assault and the attempt to obstruct justice. He now taxes me – and my use of that word is quite deliberate - with the notion that my view of this case must result in a lower sentence because the charge of attempting to obstruct justice has now been factored out of the equation by the decision of Crown counsel to withdraw the charges related to that offence (which will happen immediately following pronouncement of the sentence I am about to impose). While I have some considerable trouble with the idea that an initial discussion of judicial views during an in camera Chambers discussion should now be the subject of a formal submission as to quantum of sentence, in fairness to the offender, I believe that he is entitled to some explanation as to why I have changed my views since the Chambers discussion on September 27, 2012.
[50] Unfortunately for the offender, my initial view of the appropriate sentence to be imposed for the offence of aggravated assault has now been tempered by two additional factors unknown at the time of the Chambers discussion. I have already referred to both of these factors earlier in these reasons. However, for greater clarity, it is both the negative aspects of the PSR and, more importantly, the facts of this offence when compared to other sentences imposed for serious aggravated assaults that lead me to believe that a sentence in the 3 year range should be imposed for this offence. In my judgment such a sentence will adequately address the offender's "moral blameworthiness". Furthermore, it will be "similar to sentences imposed on similar offenders for similar offences committed in similar circumstances" (s.718.2(b)).
[51] I now turn to consideration of the credit to be given for the offender's guilty plea. Subsequent to oral argument in this case, the Supreme Court of Canada recently released its decision in R. v. Carvery (April 11), 2014 SCC 27. Though the main thrust of that case was on a point of statutory interpretation not relevant to the issue I am now considering, one of the issues dealt with by the Court was that of the delay occasioned by that accused's (ultimately abandoned) motion to withdraw his guilty plea. The Court wrote:
"the sentencing judge found that the respondent did not try to drag out his remand to manipulate or "game" the system (paras. 55 and 56). That finding was available to the sentencing judge on this record and there are no grounds to set it aside." (para. 20)
[52] From this I infer that the Supreme Court considers that an application to withdraw a guilty plea does not automatically disentitle an offender to some reduction in sentence for his guilty plea – though of course the question of how much credit to award for that plea depends on all of the facts and circumstances present in the case.
[53] Until I read the decision in R. v. Carvery I must say that I had come to the initial position that whatever might be the "normal" reduction in sentence for a guilty plea had been largely forfeited by Mr. Grewal because of his decision – which itself occupied a number of court days – to seek to withdraw that plea. However, given the Supreme Court's apparent lack of concern about Mr. Carvery's delaying the proceedings for many months while he considered bringing such an application, I am now of the view that some reduction should be made to acknowledge the guilty plea. I agree with Ms Kranjc that Mr. Grewal does not merit a reduction of sentence because his guilty plea is indicative of remorse. I further agree that he does not get much of a benefit from saving court time and expense, a factor that is frequently referred to in the Canadian authorities on point. Nevertheless, I consider that his saving of the victim from testifying is worthy of some modest reduction.
[54] Though I acknowledge that there is a certain arbitrariness in quantifying any reduction in sentence for a guilty plea, in my judgment the guilty plea merits a reduction of 3 months in the sentence that I would otherwise have imposed.
Disposition
[55] The offender is sentenced to 33 months incarceration.
[56] An order will be issued pursuant to s.743.21 of the Code prohibiting the offender from communicating, directly or indirectly, with the victim during the custodial period of the sentence, except through counsel.
[57] An order will be issued pursuant to s.109 of the Code prohibiting the offender from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of 10 years.
[58] An order will be issued pursuant to s.487.051 of the Code authorizing the taking of DNA samples from the offender.
Released: May 20, 2014
Signed: Justice D.P. Cole