Court File and Parties

Court File No.: Windsor 20-1325 Date: 2022-08-04 Ontario Court of Justice

Between: Her Majesty The Queen

— And — Enoch Villanueva

Before: Justice S. G. Pratt

Heard: Submissions heard on 26 July 2022 Released: Reasons for Sentence released on 4 August 2022

Counsel: Iain Skelton, for the Crown Evlynn Lipton, for the Offender

Reasons for Sentence

Pratt J.:

[1] On 29 March 2022 I found Enoch Villanueva, hereinafter the Offender, guilty of the offence of Aggravated Assault. Sentencing submissions were provided on 26 July 2022. These are my reasons for sentence.

Facts

[2] My factual findings are set out in detail in the trial judgment of this case. I will briefly summarize them here.

[3] The Offender and Victim attended a party in Leamington on 28 June 2020. The party was to celebrate the engagement of the Victim to the Offender’s sister. At the party, the Offender was asking people, including the Victim, to roll with him. This term refers to Jiu Jitsu sparring. Afterward, they went to the Offender’s sister’s house on Marion Street in Windsor. While they were both consuming alcohol their mutual friend and designated driver Robert Huynh was not.

[4] On arrival at the Marion Street residence, the Offender continued to ask the Victim to roll with him. He agreed and moved living room furniture out of the way to clear space. In the course of rolling, the Offender took hold of the Victim’s arm. This frightened the Victim, who shook the Offender off him. The Offender fell to the floor and hit his head. He was briefly knocked unconscious.

[5] After he awoke, he went with Huynh and the Victim to pick up a pizza they’d ordered. While walking there, the Offender berated both of them. He called them names and bragged about winning a gold medal in Jiu Jitsu. He would not calm down, despite the attempts of the others to defuse the situation.

[6] At the pizza shop, a physical altercation began between the Offender and Victim. This ruckus drew the pizza shop employee outside. He said he would call police. At that point, the Victim was on top of the Offender. He said police weren’t necessary as the fight was over. He tried to get off the Offender, but the Offender tripped him and got on top of him. The Offender clawed at the Victim’s face with his hands. The Victim tried to push him off. The Victim’s hand was near the Offender’s mouth as he was trying to push him away. The Offender bit down on the Victim’s left little finger and severed the tip. He spat it out and laughed. At Huynh’s insistence, the Offender left the scene. He returned moments later looking for his phone. Huynh located it and gave it to him, but he still went after the Victim again. He had to be pulled off the Victim by Huynh. He then left the scene for good. When police arrived, the Victim and Huynh told them it had been a stranger who was responsible. They later came clean and told police the truth.

[7] I found that the bite was not an action taken in defence against a use of force by the Victim. At the time the Offender bit the Victim, any prior altercation was over and the Victim was trying to get off the Offender. It was the Offender who reignited the fight. The bite was offensive, not defensive. I found that the Crown had proved beyond a reasonable doubt that the Offender was not acting in self-defence when he bit the Victim and severed the tip of his finger.

Principles of Sentencing

[8] The Criminal Code sets out several guiding principles for courts tasked with sentencing offenders. Section 718 states:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by 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 reparations for harm done to victims or to the community; and

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

[9] Further, s. 718.2(a)(iii.1) deems the following to be an aggravating circumstance:

evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation…

[10] Fundamentally, any sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[11] Finally, an offender should not be deprived of liberty if less restrictive sanctions may be appropriate (see. s. 718.2(d)). This is especially true for first-time offenders.

[12] As noted in s. 718 above, the fundamental purpose of sentencing is to protect society and contribute to respect for the law. Offences of significant violence cannot be treated lightly by courts. Denunciation and deterrence must be the primary factors informing an appropriate sentence. That being said, the sentence must still be proportionate, must recognize the prospect of rehabilitation, and should be no longer than necessary to achieve the principles of sentencing.

Positions of the Parties

[13] Counsel for the Offender (not trial counsel) has argued for a 90-day jail sentence to be served intermittently. This would be followed by probation with appropriate conditions.

[14] The Crown seeks a sentence of 8-9 months jail followed by two years’ probation. It also seeks several ancillary orders. Aggravated Assault is a primary designated DNA offence, and a s. 109 order is also compulsory. The Crown further seeks an order under s. 743.21 prohibiting the Offender from contacting the Victim while he is in custody.

Victim Impact Statement

[15] The Crown filed a Victim Impact Statement (VIS). In it, the Victim describes the profound effect the assault has had on him. From the opening sentence, “June 29th, 2020 was the worst day of my life”, it is painfully clear that the Offender’s actions have had a significant and permanent effect on the Victim both physically and psychologically.

[16] The injury was very painful when it occurred. In the VIS the Victim recounts having surgery and being given Percocet for the pain. He may yet require further surgery.

[17] The Victim continues to re-live the events of that night. He is fearful and doesn’t trust people anymore. He has since had cameras and an alarm system installed at his residence. He is ashamed of how his finger now looks and tries to hide it from others. He is unable to perform the exercises or daily activities he used to do. His injury has impacted his work productivity as typing is now more difficult. Notably, given that the Offender is his brother-in-law, he is reluctant to tell others how he was injured as he doesn’t want it to reflect poorly on his wife. The incident has also taken a toll on his marriage. This is hardly surprising given the conflicted position in which his wife finds herself.

[18] The assault has had lasting negative effects on the Victim. He is physically limited by the partial loss of his finger. He is psychologically affected by his appearance and fear that it could happen again. The assault has taken a toll on his relationships. The Offender’s conduct has impacted every area of the Victim’s life.

[19] While the Offender will eventually be able to put this episode behind him, the Victim will never get that chance. For the rest of his life, every time he looks at his hand, he will be reminded of what happened that night. This is the unique impact disfigurement can have on a victim. The Victim will, quite simply, never be able to put the assault behind him.

Pre-sentence Report

[20] I have had the benefit of a Pre-sentence Report (PSR) prepared by Deshawn Baylis of the Leamington Probation and Parole office. The report is detailed and useful.

[21] Counsel both agree that the PSR is largely positive. It shows initiative on the part of the Offender when he took it on himself to complete high school after initially leaving secondary education following being assaulted. He has held employment and has a strong relationship with his mother. He is the father of a three-year old son and is working to improve his relationship with his son’s mother. Counsel referred to her as the Offender’s fiancée, so it seems that work is paying off.

[22] While the Offender was employed recently, he chose to end that employment and spend more time with his family in advance of what he expects will be a custodial sentence.

[23] The PSR is accepted as accurate in its entirety by the Offender but for one point: he denies that he is unremorseful for his actions or that he does not appreciate the harm he’s done.

[24] I find it striking that in nearly every case where a lack of remorse is reported in a PSR, the author is accepted as an accurate recorder of everything they are told until that issue comes up. Then, they apparently note the exact opposite of what they are told. They then go back to being accurate afterward. I am reminded of the words of my brother Justice Duncan, when he wrote about Intoxilyzers at paragraph 46 of R. v. Powichrowski [2009] O.J. No. 4424 (C.J.):

To have a reasonable doubt one would have to conclude that there is a reasonable possibility that scientific history was made in the testing of the defendant; that the machine passed over 50 internal checks, accurately measured the known alcohol standard and then immediately went inexplicably and unnoticeably haywire in measurement of the defendant's first sample. It then corrected itself for the second calibration test and produced the targeted result but then went inexplicably haywire again for the defendant's second test but despite the malfunction managed to give a result that was in good agreement with the first test! In my view this is fantasy, not reasonable doubt.

[25] It is, in my view, exceedingly unlikely that Mr. Baylis behaved this way in the creation of the PSR. It is altogether more probable that what he wrote is an accurate representation of his interview with the Offender.

[26] As this was not raised as an issue in submissions, I will take the Offender at his word that Mr. Baylis got it wrong, and he really is remorseful. In the future, however, when an offender disputes the contents of a PSR regarding remorse, he or she should provide evidence to support that dispute. That should generally include calling the PSR author to testify so that they can be confronted with and comment on their apparent error. This approach is consistent with the assertion of other mitigating factors; there needs to be some kind of evidence supporting the assertion if it is not acknowledged by the Crown. To be clear, I am not reversing the onus and requiring an offender to disprove an aggravating factor. A lack of remorse is not aggravating (see: R. v. Valentini, [1999] O.J. No. 251 (C.A.)). I am saying that if an offender wants the benefit of a mitigating factor that is not admitted by the Crown, they will need to support that claim with evidence. Baldly asserting that the PSR author, to borrow Justice Duncan’s words, went suddenly and temporarily haywire will not be sufficient.

[27] There are other portions of the PSR that cause me concern. This is from page 5 of the report:

When asked about the current offence before the Court, the offender advised he does not see himself as the only guilty party in the offence. He advised he did not want to hurt the Victim. The subject reported he tried to not hurt the victim and practiced due diligence by attempting to de-escalate the situation and warning the Victim.

[28] The Offender pleaded not guilty to this offence and claimed he was acting in self-defence. He is free to maintain that position despite my findings to the contrary. His words to Mr. Baylis, however, go beyond asserting self-defence. I fail to see how, even on his own evidence, the Offender ever tried to de-escalate his conflict with the Victim. He admitted to calling the Victim names and challenging his fighting ability. I also cannot see how biting the end of the Victim’s finger off reflects the Offender trying not to hurt him.

[29] In summary, while the PSR does have many positive aspects, it is not entirely beneficial to the Offender.

Caselaw

[30] Both sides filed caselaw in support of their position. It is often difficult to find sentencing cases that are directly applicable to a given factual scenario. Each case and each offender are unique. The cases filed are nonetheless helpful and I thank counsel for them.

[31] In support of her argument for a 90-day intermittent sentence, counsel for the Offender relies on R. v. Kydd [2013] B.C.J. No. 2977 (S.C.). In this trial decision, the Court found Mr. Kydd guilty of aggravated assault for biting off a portion of the victim’s ear in the context of a bar fight. The parties were strangers to each other. Mr. Kydd had a record but not for violent offences. The Court repeatedly referred to the assault as being on the “lower end” of aggravated assaults. It imposed a 90-day intermittent sentence.

[32] R. v. Pulido, 2010 ONSC 3143, [2010] O.J. No. 2282 (S.C.J.) is another trial decision arising from a bar fight. Mr. Pulido struck the victim with a beer bottle, severing tendons in the victim’s hand. This required surgical repair. Mr. Pulido was employed and had three young children. The Court imposed a 90-day intermittent sentence to allow for “the continuance of his employment and family commitments”.

[33] In R. v. Smart [2013] O.J. No. 509 (S.C.J.) two offenders, Smart and Camilleri, were sentenced after a jury found them guilty of aggravated assault for their actions in a fight at a night club. The victim in that case suffered a broken jaw. Each offender was youthful with very positive PSRs. They also “demonstrated an appreciation of and empathy for the suffering of the victim”. The Court gave each a 90-day intermittent sentence, which it acknowledged some may find to be lenient.

[34] R. v. Bankay, 2010 ONCA 799, [2010] O.J. No. 5074 (C.A.) is a short endorsement of the Court of Appeal. The offender in that case bit off part of the victim’s finger during a fight at school. Aside from the fact that she spent just over five months on house arrest, there is no other information on the offender’s antecedents or the effect of the offence on the victim. The Court allowed a sentence appeal and substituted a sentence of 21 days intermittent so she could continue with school. With the utmost of respect to the Court of Appeal, without further information this sentence seems to be something of an outlier.

[35] In R. v. Lloyd [2017] O.J. No. 3391 (C.J.) the offender pleaded guilty to aggravated assault for punching the victim repeatedly in the face. This caused a brain bleed and the loss of the victim’s eye. The punching was in response to being spat upon by the victim and the victim flicking a lit cigarette at the offender. The effect of the injuries on the victim was significant. The Court imposed a 90-day intermittent sentence, noting many mitigating factors. Among them were the guilty plea, an inculpatory statement, and counselling taken in advance of sentencing. I note that none of those factors are present in the case before me. (The Offender is apparently taking counselling, but it is relationship counselling with his fiancée. It is not, from what I was told, anger management or any other sort of counselling that might be relevant to the offence before me.)

[36] Finally, the case of R. v. Taha [2014] O.J. No. 5448 (C.J.) dealt with a bouncer in a nightclub who assaulted a patron and pushed him down a flight of stairs, causing him to fall through some kind of glass. The victim was left with a significant scar on his forehead. The Court imposed a 90-day intermittent sentence. It found that the actions of the victim were relevant to the sentence, and acknowledged the sentence imposed was lenient.

[37] The Crown relies on the case of R. v. Tourville, 2011 ONSC 1677 not for its factual similarity but for the Court’s setting out of common sentencing ranges. Sentences for aggravated assault can range from a suspended sentence to penitentiary terms in the upper single digits. Based on the cases set out, the Crown in the present case suggests the Offender falls between the low- and mid-range classes of aggravated assaults.

[38] R. v. McNeil 1991 CarswellOnt 703 is a Court of Appeal decision that dealt with an offender who bit off a portion of a police officer’s ear in the context of resisting a lawful arrest. After trial, the offender was sentenced to two years less a day. On appeal, citing his positive antecedents and it would appear assigning some mitigation to the fact that the bite to the ear was done in retaliation for the officer biting the offender’s arm (while he was trying to stick his fingers in the officer’s eyes), the Court reduced the sentence to one year in jail.

[39] R. v. Gill, 2010 ONCJ 362 saw a six-month sentence imposed after trial for an aggravated assault that once again involved biting off a portion of the victim’s ear. Mr. Gill and the victim were patrons in a bar and unknown to each other. The victim, it seems, tried to be a peacemaker between the offender and another patron, but ended up getting in an altercation with the offender himself. The offender left the bar but later returned and reignited the fight. In the course of that fight, he bit the victim. The Court noted this was not a spur of the moment offence. It was the result of escalating anger on the part of the offender. This case is similar in some ways to the case at bar in that a precipitating event led to growing anger that ultimately manifested in a violent assault.

[40] Lastly, R. v. English, 2012 NLCA 64 was a case where a bouncer in a bar was struck by a bartender after he (the offender) pushed a patron against a wall. He turned towards the bartender and in the course of pushing him back, bit a portion of his ear off. The trial judge imposed an eight-month sentence, which was upheld on appeal.

[41] The message I take from of all these cases is that there is no one range of sentences for aggravated assault. Each case is, as I said, unique. What is clear, however, is that aggravated assault is a very serious offence that will in nearly all cases attract a sentence of imprisonment. The length of that imprisonment will depend on the factual circumstances of the assault and the antecedents of the offender.

Aggravating and Mitigating Factors

[42] The aggravating factors in this case are as follows:

(1) The violence of the offence; (2) The serious, permanent disfigurement of the Victim; (3) The ongoing physical, psychological, and emotional consequences of the assault on the Victim; (4) That it was the Offender who reignited the altercation after the Victim tried to end it; and (5) The Offender’s return to the scene of the assault moments afterward and the continuation of his violence towards the Victim.

[43] In mitigation, I note the following:

(1) The Offender has the support of his mother and partner; (2) He has expressed remorse and apologized for his actions; and (3) He has no prior criminal record.

Sentence

[44] This is an extremely serious offence. Unlike many of the cases filed, this was not a spontaneous lashing out against a stranger in a bar. This was a protracted event commenced entirely by the Offender against a future family member. It was he who first wanted to roll with the Victim. It was his anger at how that consensual activity went that fuelled the rest of the incident. Despite Robert Huynh’s attempts to calm the situation, it was the Offender who continued to yell and call the Victim names. After a consensual fight outside the pizza shop, it was the Offender who took advantage of the Victim trying to stand up by tripping him and climbing on top of him. It was the Offender who, when he discovered the Victim’s finger near his mouth, made the decision to bite down and keep biting until the end of it came off.

[45] Though the Offender may have hit his head while rolling that night, it was the bruise to his ego that clearly hurt much worse. He could not countenance being bested by someone untrained and inexperienced. He needed to level the score, and he did so by attacking the Victim. He intentionally tripped the Victim when his guard was down and got on top of him. He intentionally took the Victim’s finger into his mouth and bit the tip of his finger off. And afterward, he laughed about it.

[46] I do not discount the Offender’s potential for rehabilitation. He has lived his life to this point without criminal behaviour and there is every reason to expect that to continue after this incident. I am hopeful for his future.

[47] Having weighed the principles of sentencing, the facts of the case, and the guiding caselaw, it is my view that a 90-day intermittent sentence is not appropriate. It would not sufficiently denounce the Offender’s behaviour or deter others from acting in a similar way. Permanent disfigurement of a family member, with long-term impact to the Victim, should not result in weekend jail or, potentially, remaining at home with GPS monitoring.

[48] The Crown has sought a sentence of 8-9 months. In my view, given the lack of a record and hopes for rehabilitation, I do not believe the sentence needs to be that long. It does, however, need to be longer than 90 days.

[49] The Offender will be sentenced as follows:

(1) 6 months jail; (2) 2 years’ probation with the following conditions, in addition to the statutory conditions: (a) Report in person to a probation officer within five working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision; (b) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request; (c) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with Karan Mahal except with the prior written consent of the above-named person filed in advance by that person with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time; (d) Do not be within 100m of any place where you know Karan Mahal to live, work, go to school, frequent or any place you know the person to be except for required court attendances, except with the prior written consent of the above-named person filed in advance by that person with the probation intake or the assigned probation officer. This may be cancelled by the person in any manner at any time; (e) Do not possess any weapons as defined by the Criminal Code; and (f) Attend and actively participate in all assessment, counselling or rehabilitation programs as directed by the probation officer and complete them to the satisfaction of the probation officer, specifically for anger management. (3) There will be an order to provide a sample of DNA for inclusion in the national DNA databank on or before 30 September 2022; (4) There will be a weapons prohibition under s. 109 for a period of ten years; (5) There will be an order under s. 743.21 prohibiting any contact or communication, either directly or indirectly, with Karan Mahal during the custodial portion of this sentence.

[50] Unlike cases where the parties are unknown to each other, the Offender and Victim will be in each other’s lives for years to come. After this sentence is concluded, they will need to learn to co-exist. I wish them both the best.

Released: 4 August 2022 Signed: Justice S.G. Pratt