Court Information
Ontario Court of Justice Date: January 30, 2018 Location: Scarborough – Toronto
Between: Her Majesty the Queen And: Jairo Huezo-Contreras
For the Crown: A. Penny For the Defendant: R. Handlarski
Heard: September 27, December 11, 2017
Reasons for Sentence
RUSSELL SILVERSTEIN, J.:
A. Introduction
[1] On September 27, 2017 Mr. Huezo-Contreras pleaded guilty to assaulting Bryan Henry. He is the second accused on the information to plead guilty before me. On October 5, 2017 Mikaelun Molloy pleaded guilty to assaulting Mr. Henry and on November 29, 2017 I sentenced him to a conditional discharge with probation for two years.
B. The Circumstances of the Offence
[2] On Sunday, November 6, 2016 Mr. Henry and his friend, Andrew Sherwood were walking towards a McDonalds on Gerrard Street East in Toronto. On the sidewalk near the restaurant they became embroiled in a verbal confrontation with Mr. Huezo-Contreras and his two friends, Mikaelun Molloy and Jeffrey Gardner-Arnold. All of these five men had been drinking.
[3] A few moments later Mr. Huezo-Contreras punched Henry in the face with a closed right fist. Henry punched back. Gardner-Arnold joined the fight and Sherwood tried to break it up but to no avail. Henry fell to the ground and was further assaulted although it is unclear by whom.
[4] Mr. Henry lost consciousness at one point.
[5] Photographs were filed depicting the injuries to Mr. Henry. He suffered cuts and contusions to his face and head. Mr. Huezo-Contreras, through his counsel, has accepted responsibility for all of Mr. Henry's injuries.
C. The Circumstances of the Offender
[6] Mr. Huezo-Contreras is 19 years old. He was 18 years old at the time of the offence. He has no criminal record, although he was bound by a common-law peace bond at the time of the offence.
[7] He is a full-time student at City Adult Learning Centre and works part-time. He has the support of his family and friends. Letters describing his good character and charitable disposition were received from his girlfriend, Sofia Escobar, his grandfather, Rafael Contreras and his mother, Vanessa Contreras. Monica Gutschi wrote about the good work Mr. Huezo-Contreras has done as a counsellor to her daughter at her daughter's after-school camp. She describes him as polite, outgoing, hard-working and well-mannered.
[8] As of October 6, 2017 he has completed 188 hours of community service at Glamorgan Junior Public School, 70 of which have been performed since his guilty plea.
[9] He has expressed remorse to the Court, his girlfriend and to members of his family.
[10] He aspires to train as a physiotherapist.
D. The Positions of the Parties
[11] Mr. Handlarski urges me to impose a conditional discharge. He submits that notwithstanding the violence and personal injury associated with this offence, his client's particular circumstances cry out for such a disposition. He further submits that specific deterrence has already been achieved and that the need for general deterrence can be met with an appropriate probation order.
[12] Ms. Penny, for the Crown, seeks a 60 day conditional sentence and a further one year of probation. In her view, in light of the injuries to Mr. Henry this offence is too serious to merit a conditional discharge. The need for denunciation and general deterrence would not be satisfied by such a disposition.
E. The Principles of Sentencing
[13] The principles of sentencing are set out in Part XXIII of the Criminal Code.
[14] According to s. 718 of the Criminal Code, 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.
[15] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."
[16] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also take into account a number of principles including the following:
A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
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.
[17] A conditional discharge for this offence is an available disposition pursuant to s. 730 of the Criminal Code where such a disposition is "in the best interest of the accused and not contrary to the public interest".
F. The Aggravating and Mitigating Circumstances
(a) Aggravating Factors
[18] There is one particularly aggravating circumstance in this case. The assault on Mr. Henry was relatively serious. He lost consciousness for some time and suffered injury to his face and head. The attack was unprovoked.
[19] I note as well that Mr. Huezo-Contreras was bound by a common-law peace bond at the time of the offence.
(b) Mitigating Factors
[20] There are, however, several circumstances that I find mitigate the length of sentence to be imposed.
[21] Most important among these is the fact that this offence is so markedly out of character. Mr. Huezo-Contreras has an enviable history of charitable conduct and peaceable disposition. Mr. Huezo-Contreras is industrious and goal-oriented.
[22] I am also impressed by the degree of remorse expressed by Mr. Huezo-Contreras as demonstrated by his guilty plea and the things he has said to me and others.
G. The Caselaw
[23] As set out earlier, it is a well settled principle of criminal law that like offenders who commit similar offences should receive similar punishment.
[24] Counsel have provided the following cases for my consideration: R. v. Sweeney, [2001] O.J. No. 1899 (O.C.J.); R. v. Mansour, [2013] O.J. No. 1077 (O.C.J.); R. v. Meneses, [1974] O.J. No. 736 (C.A.); R. v. Fairweather, [2014] O.J. No. 3012 (S.C.J.); R. v. McGee, [2011] O.J. No. 863 (S.C.J.) and R. v. Hayes, [1999] O.J. No. 938 (Gen. Div.).
H. Discussion
[25] The principles emerging from the caselaw that govern the imposition of a conditional discharge are well summarized by Hill J. in R. v. Hayes, supra at para. 32.
Discharges are not restricted to trivial matters: Regina v. Vincente (1975), 18 Crim. L.Q. 292 (Ont. C.A.). Where an offender has acted entirely out of character, perhaps in the context of unusual pressure or stress, a discharge may be a fit sanction: Regina v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.) at 552 per Arnup J.A. Where a criminal record will have a tendency to interfere with employment, a discharge should be given serious consideration: Regina v. Myers (1978), 37 C.C.C. (2d) 182 (Ont. C.A.) at 184-5 per Martin J.A.; Regina v. Culley (1977), 36 C.C.C. (2d) 433 (Ont. C.A.) at 435 per Martin J.A. A suspended sentence is not necessarily a greater deterrent to others than a conditional discharge: Regina v. Cheung and Chow (1976), 19 Crim. L.Q. 281 (Ont. C.A.). While a discharge is only rarely appropriate in offences involving violence causing injuries, such a sentence is not universally unavailable in such circumstances: Regina v. Wood (1975), 24 C.C.C. (2d) 79 (Ont. C.A.) at 80 per Jessup J.A.
Although Hayes is almost 20 years old, I have seen nothing to suggest that these principles are no longer applicable.
[26] As concerns specific deterrence, a criminal conviction is not necessary to achieve this end. I am convinced that Mr. Huezo-Contreras has learned his lesson from the tribulations associated with having been charged and found guilty.
[27] As concerns Mr. Huezo-Contreras's prospects for rehabilitation, I find that a criminal conviction will hamper his rehabilitation, in so far as a conviction will make it more difficult for him to contribute to society in a meaningful way.
[28] A conditional discharge is certainly in the best interest of Mr. Huezo-Contreras given his career objectives.
[29] As concerns the public interest, the injuries to Mr. Henry militate against a conditional discharge, in that offences of violence require denunciation and general deterrence that are best achieved through a more serious consequence to Mr. Huezo-Contreras. But I must balance this against the fact that the public interest also includes the extent to which Mr. Huezo-Contreras's future as a contributing member of our society may be jeopardized by the imposition of a criminal conviction. In my view, on balance, it is indeed in the public interest that a conditional discharge be imposed.
[30] The need for rehabilitation, denunciation and general deterrence can be addressed through appropriate probation conditions.
[31] Mr. Huezo-Contreras's co-accused, Mr. Molloy, was also involved in this assault yet to a lesser degree than Mr. Huezo-Contreras. Ms. Penny argues that because of this disparity in culpability, a conditional discharge should not be imposed here.
[32] I disagree. While I agree that Mr. Huezo-Contreras must be dealt with somewhat more harshly than Mr. Molloy, this too can be effected through appropriate conditions of probation.
I. Conclusion
[33] In the result, I sentence Mr. Huezo-Contreras to a conditional discharge with probation for 30 months, on the following terms:
Report once and thereafter as required
No contact directly or indirectly with Bryan Henry or Andrew Sherwood
Take counselling as ordered by the probation officer
200 hours of community service to be performed over the course of the 30 month probation term
[34] I shall hear further submission from counsel regarding further terms of probation or other ancillary orders.
Released on January 30, 2018
Justice Russell Silverstein