Court File and Parties

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ferdinand Pangan

Before: Justice P.A. Downes

Heard on: June 26, 2014

Reasons for Sentence released on: July 7, 2014

Counsel:

• Ms. D. Tsagaris for the Crown
• Mr. C. N. Barhydt for the accused Ferdinand Pangan

DOWNES J.:

1.0: INTRODUCTION

[1] At the beginning of his trial on a charge of attempting to murder Bruce Moffitt, Ferdinand Pangan pled guilty to aggravated assault, robbery and possession of stolen property. At the end of his trial I found him not guilty of attempted murder. Mr. Pangan must now be sentenced for the offences to which he pled guilty.

2.0: THE FACTS OF THE OFFENCES

[2] The facts of Mr. Pangan's offences are summarized in some detail in my reasons for judgment. I of course rely on those facts and need not repeat them here. Suffice it to say that Mr. Pangan committed a prolonged and brutal assault on Bruce Moffitt. Words cannot do justice to the horrific images of the assault captured on the CCTV at the ATM machine: stomping, kicking, beating; repeated on three separate occasions; the indignity of stealing Mr. Moffitt's shoes, rummaging through his trousers and his knapsack, taking his wallet and leaving him for dead on the ground. This crime was vicious and callous by any definition of the words.

3.0: THE VICTIM

[3] The victim of Mr. Pangan's offences, Bruce Moffitt, did not testify at the trial, so other than the information related in the victim impact statements and in his medical records I do not know much of his background.

[4] Mr. Moffitt was 50 years old at the time of this offence. His social work assessment indicated that he lived alone having separated from his wife. What is clear, however, is that he has a remarkable and supportive family who have witnessed their father, brother and son transformed from an active and intellectually vibrant man to someone struggling to regain his former skills and faculties. As Mr. Moffitt's son put it in his victim impact statement:

Bruce has been physically, emotionally, and spiritually compromised, and his road to recovery will probably last the rest of his life. He will never be the same, although I try to stay positive and hopeful that he will one day walk again. Bruce is a very active and cerebral person. Both of these qualities have been taken from him and those he shared them with by this heinous delinquency. It is remarkable how far he has come and I am ever grateful for that, but I deeply miss that Bruce I last knew on May 25th.

3.1: INJURIES

[5] As I have said, Bruce Moffitt did not testify at the trial. In light of the CCTV he did not need to. In light of the effect of his injuries, he probably could not have. Mr. Moffitt's medical records were, however, filed on consent. They reveal the serious and devastating impact of this assault on his physical and mental capacity.

[6] Mr. Moffitt was hospitalized at Sunnybrook for four months. He was comatose at first, and after regaining consciousness remained hospitalized with a view to determining the extent and impact of his injuries and to assess his prospects for rehabilitation. Upon his discharge he was diagnosed with "severe traumatic brain injury with diffuse axonal injury, nasal fracture."

3.2: THE VICTIM IMPACT STATEMENTS

[7] While Mr. Moffitt was obviously the direct victim of Mr. Pangan's offences, he was far from the only person affected by them. At the sentencing hearing I had the benefit of receiving victim impact statements not only from Mr. Moffitt but from three members of his family. Catherine Moffitt, Bruce's sister, read statements prepared by her and by Mr. Pangan's son, Lucas. I also received a statement from Bruce's brother, Keith Moffatt. Both common sense and s. 722(4)(a) of the Code tell us that they too, as individuals "who suffered physical or emotional loss as a result of the commission of the offence" are victims of Mr. Pangan's crimes.

[8] The victim impact statements are moving and profound. In his statement, Mr. Moffitt's son said:

When I finally saw Bruce at Sunnybrook Hospital, my heart sank and I felt my throat begin to close. Tears streamed down my face as my mother, sister, and I held hands and talked to him. At first, I wished and wished for him to regain consciousness, and then to just be able to talk to him again. Slowly, very slowly, I have fortunately been able to interact with him. Bruce has an incredible amount of courage to have come as far as he has. I spent that whole summer at Sunnybrook with him; reading to him, playing him music, talking to him, praying that we would one day be able to chat, play tennis and chess, and do crosswords together as we always have.

[9] In her statement, Catherine Moffitt described the extraordinary time and effort she and many others have devoted to her brother's care since the assault. She has spent at least three hours every day looking after him and his affairs to the detriment of her own family, friendships, health and career. She described the extent of Mr. Moffitt's impairment:

As a result of this assault, he is impaired in almost all of his senses and abilities and cannot work to earn his own income or manage many of his regular affairs himself without supervision or assistance...his abilities are likely to be permanently limited. His family has suffered extreme heartbreak and concern during his recovery and we are filled with worry and frustration about his future and how he will be able to cope long term with some sense of dignity and quality of life.

[10] Bruce Moffitt read his statement to the court. He did so after making his way, with the assistance of a walker, to the podium. He read carefully, courageously and with great dignity, his speech obviously severely compromised by the brain injury he suffered at Mr. Pangan's feet.

[11] Mr. Moffitt told the court that he was in a coma for a month and that he counts on his sister Cathy for assisted living after having spent time in Sunnybrook and Bridgepoint health centres. He relies on Wheeltrans for transportation and cannot work, drive or walk. His vision, speech and memory are all impaired as a result of the assault.

[12] These statements provide two important insights. First, they reveal the devastating impact of this assault on Mr. Moffitt and his extended family. An act of thoughtless and senseless brutality, committed on the instant, has left a family shattered and transformed for the rest of their lives. I do not know what, if any, impact that fact has on Mr. Pangan, but it must inform the sentence to be imposed in the sense that the victims are entitled to know that the consequences of this crime are not a minor or incidental feature of the sentencing landscape in this case. The impact of such a crime must be reflected by a sentence that has a significant denunciatory component to it.

[13] Second, this family has every right to feel and express nothing but fury and contempt towards Mr. Pangan. That these victim impact statements demonstrate something different reveals a level of humanity and generosity that is deserving of the greatest admiration and respect. Typical of that is Keith Moffitt's comment about Mr. Pangan: "I am certain there is someone close to this individual that loves him and is advocating for leniency towards him. There undoubtedly are shared emotions by both families of this senseless act. Although I feel the need to forgive this individual, I also want to see justice served." Mr. Moffitt's son reflected similar sentiments.

[14] While I recognize that the victim impact statement should not amount to a sentencing submission more appropriately made by counsel (R. v. Vinski, [2014] O.J. No. 2152 (SCJ) at para. 25) the careful and conciliatory tone adopted by the victims in this case only serves to enhance the credibility of their otherwise very articulate and helpful comments. It is, of course, only one of many factors I am obliged to consider in the difficult task of fashioning an appropriate sentence, but it should not be lost on Mr. Moffitt and his family that this court has been profoundly moved by their important contribution to the sentencing process.

4.0: THE OFFENDER

4.1: THE PRE-SENTENCE REPORT

[15] A pre-sentence report was prepared under s. 721 of the Code. It paints a sorry picture of Mr. Pangan's life. As it turns out, Mr. Pangan does not appear to have anyone who particularly cares what has or will happen to him. He has a splintered family background and while it is not corroborated by any independent source, Mr. Pangan reported experiencing both physical and sexual abuse as a child by people in positions of authority.

[16] Mr. Pangan was married in 2003 and has two sons aged 10 and 11. It appears that Mr. Pangan and his wife separated within a year or two of being married. It does seem, however, that the two remain on speaking terms, although his wife was not aware of his involvement in this matter.

[17] Mr. Pangan completed grade 8, continually being suspended or expelled from school in the years after that because of anger problems and for fighting with teachers. He has had sporadic and occasional employment and at the time of this offence had been receiving financial support from the Ontario Disability Support Plan for about a year. He has no assets.

[18] Mr. Pangan is an alcoholic who has also engaged in frequent and varied illicit drug use. He has been previously ordered to attend addiction counselling, never successfully completing the sessions.

[19] In 2006 and 2010 Mr. Pangan was hospitalized briefly for suicidal threats. In 2009 he was diagnosed as having a personality disorder characterized by borderline antisocial and narcissistic personality traits. In his evidence at his trial Mr. Pangan said that he was taking medication to control what he described as panic attacks. The PSR indicates that he was prescribed medication for mood, sleep and irritability after referral for complex mental health and substance abuse issues in May 2012. It appears that Mr. Pangan has rarely displayed any interest or desire in engaging in meaningful therapy to address his many issues.

[20] The author of the PSR stated that in discussing his crime Mr. Pangan said he was, "really sorry" but described his act simply as having, "beat up some guy." Mr. Pangan declined the invitation to say anything in court at his sentencing hearing.

4.2: CRIMINAL RECORD

[21] Mr. Pangan has a criminal record consisting of some fourteen entries dating back to late 2003. It includes convictions for several assaults, most recently in 2010, but he has never received a custodial sentence of longer than about three months.

5.0: THE POSITION OF THE PARTIES

[22] The Crown seeks a term of imprisonment for between 10 and 12 years. Fairly, however, Ms. Tsagaris acknowledged in her sentencing submissions that a range of 8 to 10 years was not unreasonable. Not surprisingly, the Crown emphasizes the horrific nature of the attack on Mr. Moffitt, the impact on him and his family, and the lack of any significant mitigating factors operating in Mr. Pangan's favour.

[23] For Mr. Pangan, Mr. Barhydt submits that a sentence of 8 years is appropriate. He submits that Mr. Pangan deserves significant credit for a guilty plea which spared the need for a prolonged or difficult trial on what happened, and says that the weight of sentencing authorities simply do not support the high end of the sentence proposed by the Crown.

6.0: THE GOVERNING SENTENCING PRINCIPLES

[24] Part XXIII of the Criminal Code describes the fundamental purpose of sentencing in Canadian criminal law and identifies the operative principles of sentencing. Section 718 dictates that the "fundamental purpose" of sentencing is 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:

(1) to denounce unlawful conduct;

(2) to deter the offender and others from committing offences;

(3) to separate offenders from society where necessary;

(4) to assist in rehabilitating offenders;

(5) to provide reparations for harm done to victims or the community; and

(6) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[25] As Doherty J.A. noted for the Court in R. v. Nur, 2013 ONCA 677, [2013] O.J. No. 5120 (C.A.) at para. 73:

While both utilitarian and "just desserts" considerations are evident in the various sentencing principles identified in Part XXIII, the overall aim of Part XXIII is to impose a sentence that is tailored to both the offence and the offender. Individualized sentencing through the exercise of judicial discretion sounds the keynote of Part XXIII.

The "fundamental principle" of sentencing reflected in s. 718.1 is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[26] The court must also take into account a number of principles outlined in s. 718.2 including:

(1) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

(2) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(3) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(4) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(5) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[27] With those guidelines in mind it is nevertheless the case that sentencing is an individualized process. Particularly in a case such as this, comparisons to sentences imposed in other cases is of limited value, both because the range of sentences for aggravated assault is very wide, and because of the unique combination of factors present in any case.

7.0: ANALYSIS

7.1: THE AGGRAVATING CIRCUMSTANCES

[28] There is little to distinguish the aggravating "circumstances" from the core of the offence itself. Fundamentally, the appropriate sentence is dictated not by the things that surround this crime but by the crime itself, the brutality of which simply cannot be overstated. That said, in my view there are certain features of what happened worth noting in the sentencing context:

(1) The attack was essentially unprovoked. While the CCTV suggests there may have been words exchanged between Mr. Moffitt and Mr. Pangan before he launched his attack, Mr. Pangan himself suggested in his evidence that he was frustrated at how long Mr. Moffitt was taking in using the ATM. That is hardly provocation. Indeed it is unimaginable that any exchange of words, lasting as it did mere seconds, could amount to provocation in any sense of the word. This attack had no rationale. To all intents and purposes it was random and unprovoked;

(2) Mr. Pangan returned to the ATM on three separate occasions. Each time, notwithstanding that Mr. Moffitt was obviously unconscious on the ground, he attacked or robbed him again.

(3) Mr. Pangan left Mr. Moffitt for dead. It was late at night and few members of the public were likely to come by and find Mr. Moffitt.[1]

(4) The severity of the injuries. I have already reviewed these in some detail. It hardly needs to be said that these were not transient or trifling injuries. They are profound and life-altering and were exclusively and directly caused by Mr. Pangan.

7.2: THE MITIGATING CIRCUMSTANCES

[29] I agree with the Crown that there is little for which Mr. Pangan deserves any credit in the sentencing calculus. Chiefly, however, he is entitled to some recognition of his guilty plea. Mr. Pangan contested only the level of his intent. He was, of course, justified in doing so and that fact does nothing to diminish the credit to which he is entitled for admitting his guilt, at a relatively early stage and without the need for a preliminary inquiry.

[30] It is true that the CCTV recording made this a formidable case for the Crown. But Mr. Pangan nevertheless could have instructed his counsel to conduct this matter in a very different and much more prolonged manner than he did. This matter came to trial within a year of the incident. These days that is, regrettably, somewhat exceptional and while experienced counsel for Mr. Pangan undoubtedly guided him with skill and wisdom, Mr. Pangan nevertheless deserves credit for seeing that it was so.

7.2.1: THE ROLE OF MENTAL ILLNESS

[31] It was essentially undisputed evidence at Mr. Pangan's trial that he suffers from mental illness. I have already noted the contents of the PSR in that regard. As I observed in the reasons for judgment after Mr. Pangan's trial, he testified that he has suffered from depression and panic attacks and was prescribed Seroquel about a year ago to calm him down, which he is supposed to take twice a day. He has been admitted to a psychiatric hospital on what he described as "numerous" occasions (although this claim does not appear to be substantiated in the PSR). He has heard voices and experienced hallucinations in the past, for which he has been prescribed Zyprexa.

[32] The Crown, however, cautions that Mr. Pangan's mental illness is not presumptively a mitigating factor on sentence. In R. v. Prioriello, 2012 ONCA 63, [2012] O.J. No. 650 at paras. 11-12 the Court of Appeal commented that:

In order for mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct. Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds.

[33] As in that case, except to the extent that Mr. Pangan's alcoholism might be viewed as a form of mental disorder (the PSR notes that the psychiatrist at the detention centre opined that Mr. Pangan's substance abuse history "contributed" to Mr. Pangan's recidivism) in my view the evidence before me does not support such a conclusion. In his evidence at trial Mr. Pangan testified that he could not say why he acted the way he did, only that he believed it was mostly a product of alcohol consumption but also because he missed taking his medication that day.

[34] In finding Mr. Pangan not guilty of attempted murder I found that his mental health, but more especially his alcohol consumption could well have impacted his state of mind. But that was in the context of a determination of whether the Crown could prove the specific intent for attempted murder. I have no doubt that alcohol was a factor in what Mr. Pangan did that day, but I am not satisfied for the purposes of sentencing that it was "causal" in the sense discussed in Prioriello such that it can operate as a mitigating factor. If anything, it is a factor which requires the court to be mindful of principles of rehabilitation in determining the appropriate sentence for Mr. Pangan.

7.3: APPLYING THE APPLICABLE SENTENCING PRINCIPLES

[35] This was, by any measure or definition, a serious offence: R. v. Nur, supra, at paras. 83-84. It requires the imposition of a custodial sentence that proportionally reflects the gravity of the crime and appropriately denounces and deters such inherently dangerous behaviour. Neither party disputes that denunciation and deterrence must be the operative sentencing principles in this case but, subject to the Crown's concerns about the role of mental illness already referred to, they equally acknowledge that given the significant role that alcohol and other compromising factors played in this offence, rehabilitation cannot be ignored.

[36] As I have already alluded to, the act of sentencing an offender, while guided by statutory principles and reference to other similar cases, is ultimately an individualized process. Truly acknowledging the particular harm done to victims of the offence as well as the unique individuality of any person before the courts cannot be achieved by a mechanistic sentencing calculation. The considerable benefit of seeing and hearing from all those involved and balancing the various factors that go into a sentencing decision, both tangible and intangible, allows a court to achieve the fairest and most just sentence for each individual who comes before it.

[37] It must also be acknowledged, however, that no sentence I can impose will ameliorate the devastating consequences of this crime on Mr. Moffitt and his family. Those scars will remain long after Mr. Pangan has been released from custody. It would be foolish to pretend that any sentence would "make things right" for Mr. Moffitt. My task is to fashion what I believe, based on the sentencing precedents and principles dictated by statute and case law, is a fit sentence in the circumstances.

[38] The parties have referred to several cases in support of their respective positions. In truth, sentencing in this type of case is assisted only marginally by comparison to precedent. I say that for two reasons. First, each case has its own unique contours and characteristics; and second, it is clear from even a cursory glance at the authorities that the range of sentence for cases of aggravated assault involving serious injury is wide to the point of impracticality.[2]

[39] To take but a few examples: the Crown relies on the Court of Appeal's judgment in R. v. Smith, [2010] O.J. No. 1236. There, the victim suffered an unprovoked knife attack to his back which left him with severe life-threatening injuries and permanent disability. The accused was a first offender with strong antecedents. He received a sentence of 10 years, but in that case was convicted after a trial of attempted murder. The Court noted favourably the trial judge's comment that the range in that case was 5 to 15 years.

[40] Clearly that is a significant range. Equally clearly, Mr. Pangan must be sentenced for the offence he committed, aggravated assault, not for the attempted murder charge on which he was acquitted.

[41] In R. v. Kanthasamy, [2007] O.J. No. 480, also relied on by the Crown, the Court of Appeal upheld a sentence of 7½ years imposed for an aggravated assault after a trial in which the youthful accused had been acquitted of attempted murder for attacking the victim with machetes for no apparent reason. The victim in that case sustained serious, life-altering physical and psychological injuries. The Court held that the sentence imposed was, "close to the upper range of sentences imposed for this kind of offence." Indeed the Court held that the trial judge could have imposed a reformatory sentence followed by a lengthy term of probation.

[42] In my respectful view, the five other sentencing decisions from the Ontario Court of Appeal relied on by the Crown are generally not supportive of the 10 to 12 year range initially proposed. Additionally, all of them are brief endorsements. While sentencing endorsements may generally have more value than endorsements adverting to legal principles on a conviction appeal, the Court has nevertheless cautioned about placing undue reliance on them: R. v. Singh, 2014 ONCA 293, [2014] O.J. No. 1858 (C.A.) at para. 12.

[43] The maximum sentence for aggravated assault is 14 years. I find that the circumstances of this offence militate in favour of a sentence in the range suggested by counsel, namely 8 to 10 years. There is little to be said in favour of Mr. Pangan. His troubled background has not helped him, but equally he does not appear to have taken any serious steps towards addressing his addiction issues. His own evidence was that all of his offences have been committed while under the influence of alcohol. Perhaps knowing now how close he has come to receiving a life sentence had Mr. Moffitt died may be some motivation for Mr. Pangan to take seriously any rehabilitative programmes that might be offered to him while in the penitentiary.

[44] Mr. Pangan's remorse is difficult to assess. I find that there are some indications of genuine remorse. I accept that he has accepted responsibility in the pre-sentence report and in court by his plea. It is disappointing that Mr. Pangan could not bring himself to apologize directly to his victim in court but I do not treat that as an aggravating factor.

[45] This sentence must, if at all possible, serve to strongly denounce Mr. Pangan's conduct. It must, by its severity, attempt to deter him from committing future offences. But Mr. Pangan must also be separated from society for a period of time. His vicious, unprovoked and unexplained attack on an unsuspecting member of the public going about his everyday business casts him as an unacceptable risk to the public if he is not incarcerated for a significant period of time.

[46] Balancing the various factors and taking into account the position of the parties, in my view the appropriate sentence is one of 8½ years, minus pre-trial custody. I have determined that this is the appropriate total sentence on all three counts. Clearly the aggravated assault is the most serious of Mr. Pangan's crimes. I have struggled with how to address the robbery conviction. The robbery was an exploitive and humiliating act which only served to further victimize an already unconscious Mr. Moffitt. In my view the robbery alone is deserving of a lengthy denunciatory sentence.

[47] I had considered whether the sentence on the robbery should properly be made consecutive to the aggravated assault sentence. Viewed one way the robbery was a discreet act, undertaken after Mr. Pangan had already inflicted a serious assault on Mr. Moffitt. At the same time, the assault and the robbery were a continuing transaction, the two operating in tandem, each aggravating the other. In the final analysis of course, I am obliged to consider the principle of totality in arriving at the sentence for all three counts: R. v. R.B., 2013 ONCA 36, [2013] O.J. No. 278 (C.A.) at para. 30.

[48] I am satisfied that the seriousness of Mr. Pangan's conduct can be adequately reflected, and an appropriate total sentence achieved by sentencing Mr. Pangan to a total of 8½ years in jail for the aggravated assault, and 2 years concurrent to that for the robbery. He will be sentenced to six months concurrent to that for possession of stolen property.

7.4: PRE-SENTENCE CUSTODY

[49] Mr. Pangan has been in custody since his arrest on May 29, 2013. As of today's date that is 405 days. He is entitled to credit for loss of eligibility for parole and early release and the harshness of the conditions. While I have little information about the latter, the Supreme Court of Canada held in R. v. Summers, 2014 SCC 26, [2014] S.C.J. No. 26 at para. 71 that the loss of early release, taken alone, will generally be a sufficient basis to award credit at the rate of 1.5 to 1, even if the conditions of detention are not particularly harsh, and parole is unlikely.

[50] I am satisfied that given the length of the sentence and Mr. Pangan's record, there is a sufficient basis to award him pre-sentence custody at a rate of 1.5 to 1.

[51] Mr. Pangan will be credited with 20 months of pre-sentence custody, resulting in a net sentence to be served of 82 months or six years and 10 months.

8.0: ANCILLARY SENTENCING ORDERS

[52] Pursuant to ss. 109(1)(a) and 109(2) of the Criminal Code, I order that the accused is prohibited from possessing any firearm (other than a prohibited firearm or a restricted firearm), and any cross-bow, restricted weapon, ammunition, and explosive substance for 10 years following his release from his sentence of imprisonment, and is prohibited from the possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. This order is mandatory because the accused has been convicted of an offence in the commission of which violence against a person was threatened, and for which the accused was liable to imprisonment for ten years.

[53] As Mr. Pangan has been found guilty of committing a "primary designated offence," pursuant to s. 487.051(2) of the Criminal Code, I am required to make an order in Form 5.03, to have samples of bodily substances taken from him for purposes of forensic DNA analysis.

[54] I am satisfied that it would be an undue hardship, indeed it would be an impossibility, for Mr. Pangan to pay the $100 victim surcharge in this case. His offence predates the October, 2013 amendments to s. 737 of the Code and as a result I waive payment of that surcharge. It hardly need be pointed out that Mr. Pangan will be in custody for the foreseeable future and that he in any event has zero assets to his name. It can only be hoped that the particular victims in this case will be considered for compensation through other recognized means.

[55] Finally, I am extremely grateful to both counsel for their efficient, sensitive and principled advocacy in this difficult and tragic case. The administration of justice is only enhanced by their integrity and professionalism.

Released: July 7, 2014

Signed: "Justice Downes"

Footnotes

[1] Shockingly, one member of the public did enter the ATM, look at Mr. Moffitt, use the ATM and leave without calling for assistance. Thankfully, someone else came by shortly afterwards and immediately called 911.

[2] See, for examples of sentences significantly lower than proposed here in not dissimilar circumstances cases such as R. v. J.B., [2012] O.J. 2670 (SCJ); R. v. Foster, [2004] O.J. No. 5616 (SCJ); R. v. Saraj, [2012] O.J. No. 3554 (SCJ); R. v. Halstead, [1999] O.J. No. 5418 (SCJ).