ONTARIO COURT OF JUSTICE
DATE: 2025-01-06
COURT FILE No.: 23 – 48110013
Toronto Region
BETWEEN:
His Majesty the King
— AND —
Nick Chrysostomou
Before Justice C. Faria
Heard on August 23 and December 20, 2023
Reasons for Judgment released on January 6, 2025
Carime Boehr ...................................................................................... counsel for the Crown
Nicholas Xynnis ............................................................................... counsel for the Accused Nick Chrysostomou
Faria J.:
[1] Nick Chrysostomou pled guilty before me on August 23, 2024 to one count of assault causing bodily harm. The matter was adjourned for a Pre-Sentence Report (PSR) to be prepared. I heard sentencing submissions on December 20, 2023. These are my reasons for sentence.
Facts
[2] At about 6:45 a.m. on Tuesday, July 4, 2023, Nick Chrysostomou was in the rear passenger seat of his brother Stavros’ van travelling southbound on Avenue Road in Toronto. Stavros got into a dispute with another driver, Mohammad Akrami, and threw a water bottle at him. When Akrami stopped at a red light at St. Clair Ave. West, Stavros pulled up behind the driver, got out of his van, approached Akrami’s vehicle who got out of his vehicle as well. Both men began yelling and pushing each other.
[3] Nick Chrysostomou then left his rear seat of the van armed with a hatchet. A nearby witness told Nick to put the hatchet down. He did. Then he picked it up again, approached Akrami and swung at him. Akrami attempted to block the swing and the sharpened blade of the hatchet cut Akrami’s lower right index finger causing a large gash. Witnesses called 911, officers arrived, Nick Chrysostomou was arrested, and his hatchet seized.
[4] Photos of the hatchet as well as Akrami’s injury were filed. Akrami’s medical records document the gash to his right-hand index finger by his thumb to be 6-7 cm which required an equal number of stitches.
Circumstances of Nick Chrysostomou
[5] Pursuant to the PSR, Mr. Chrysostomou is a 37-year-old single man with no dependents. He is the youngest of three adult brothers who all live with, and are supported by, their parents. He has no criminal record.
[6] He had a stable, unremarkable childhood. He reported barely passing high school but graduating. It took him 5 years to complete a 2-year electronics engineering technician program because he lied to his parents for 3 years. He went to a gaming store rather than to class for 3 years. He became a plumbing apprentice, but he quit after a few months because the job was too physically demanding for him. His father then hired him in the family painting business for 10 years. When business became slow, he became unemployed. Just after the writing of the PSR, he became a “direct store delivery associate”.
[7] Mr. Chrysostomou rarely consumes alcohol and does not use drugs. He has epilepsy and takes medication for the condition. He has no mental health issues.
[8] He mainly interacts with others while gaming and declares that it is “practically my life.” He has poor financial skills and is in consumer debt for video game, computer, and board game purchases. He described himself as a “loner”, “lazy” and “impulsive”. He recognizes he relies on his parents for all his needs, and would be “screwed” and likely “homeless” without their support.
[9] The PSR author spoke to Mr. Mike Chrysostomou, his father, who stated Nick is “no trouble”. Though he was not present during the offence, and knows his son pled guilty, he took the position his son was not “at fault” for this assault that caused bodily harm.
[10] Perhaps a more astute perspective came from his cousin Andreas Chrysostomou. He noted Nick has not received enough guidance and so he, and his brothers, have not become independent adults. He also notes there may be a developmental concern with Nick, but this is a “sensitive” topic and there is no diagnosis.
Effect on Victim
[11] Mohammad Akrami reported to the PSR author that he works with his hands and was off work for about 3 months. He continues to experience pain and weakness. This still causes him difficulty at work. He still has finger cramping. He has a scar he describes makes his hand look “deformed”. He reported being fearful when he drives, and experiencing trauma when he remembers the event.
Position of the Parties
[12] The Crown recommends a 9-month Conditional Sentence Order with house arrest, and then curfew conditions, a 2 year probation order with terms, a DNA Order and a s. 109 weapons prohibition for 3 years. She emphasizes denunciation, general deterrence, the impact on the victim and the aggravating factors.
[13] The Defence recommends a Conditional Discharge and does not oppose the ancillary orders. He submits the guiding principle is restraint as his client has no criminal record. He frames the offence as one where Mr. Chrysostomou was, in a misguided way, trying to help his brother.
[14] Both parties provided me with caselaw that, they both acknowledged, was not quite on all fours with the case at bar, however, the principles were applicable. I have reviewed and considered each case provided.[^1]
Sentencing Objectives & Principles
[15] Every sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[16] The Criminal Code in ss. 718 to 718.2 provide sentencing guidance. The sanctions this court imposes should have one or more of the following objectives:
- to denounce unlawful conduct
- to deter the offender and other persons from committing offences
- to separate offenders from society, where necessary
- to assist in rehabilitating offenders
- to provide reparations for harm done to victims or to the community
- to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[17] I must also consider aggravating and mitigating factors.
[18] The aggravating factors are:
i. This was a calculated assault. Mr. Chrysostomou was not involved in the original dispute. He grabbed a hatchet before he exited his brother’s van and joined an altercation already in progress.
ii. He had an opportunity to re-consider his actions. A witness told him to put the weapon down. He did. Then he deliberately raised the weapon and attacked the victim.
iii. He attacked an unarmed man.
iv. He changed the dynamic of the altercation from a 1 on 1 dispute to a 2 on 1 attack.
v. He attacked the victim brazenly in public in the early light of day in the presence of witnesses, who, I infer, were negatively impacted by observing a man attack another man with a hatchet and called 911.
vi. This is a road rage offence committed on a public Toronto street, in a city experiencing daily traffic congestion.
vii. Mr. Chrysostomou caused a serious injury which initially caused both physical and financial hardship. The negative impact has also been long lasting and psychological.
[19] The mitigating factors are:
i. Mr. Chrysostomou has no criminal record.
ii. He pled guilty which demonstrates remorse and accountability.
iii. The guilty plea benefits this Courthouse during a period of strain as resources are tight.
iv. The plea obviates the need for the victim to retell what happened to him, and the witnesses from having to testify as to what they saw.
v. He has a supportive family.
vi. He now has a job again.
Analysis
[20] In my view, violence that erupts on Toronto streets because of drivers being unable to regulate their emotions, be it frustration, impatience, anger, entitlement, perceived insult, or any other emotion that may emerge while navigating traffic congestion and differing driving abilities, must be sanctioned with firmness and clarity. Our community will not tolerate violent road rage outbursts that, as in this case, cause serious injury.
[21] I do not accept, as Defence Counsel submitted, that Nick Chrysostomou exited the van because he was concerned about his brother Stavros.
[22] This driving dispute had been ongoing, and well underway when he joined Stavros, who was the first to exit their vehicle and approach the victim. I also had the opportunity to observe the size of his brother Stavros. He is a significantly large, tall, broad-shouldered, heavy man. Nick is even more physically imposing. There is no basis to infer Stavros needed any help in his dispute with the unarmed victim. There was no need to intervene, and certainly no need to introduce a weapon into the altercation.
[23] This is a serious offence, and Mr. Chrysostomou’s moral culpability is high. The sanction for this conduct must reflect denunciation and deterrence.
[24] However, Mr. Chrysostomou is a first-time offender.
[25] Attenuating the principles of denunciation and deterrence are the principles of restraint and rehabilitative potential which merits the consideration of a conditional discharge as an appropriate sentence.
[26] On the first prong of analysis, a discharge would not encumber Mr. Chrysostomou with a criminal record and would be in his best interest. However, on the second prong of the analysis, a conditional discharge should not be contrary to the public interest.
[27] In the circumstances of this offence, a discharge would indeed be contrary to the public interest.
[28] The numerous aggravating factors, particularly the deliberateness of Mr. Chrysostomou’s swing of his hatchet after having been told to put it down, doing so, and consciously choosing to raise and use it, in addition to causing a serious injury in a road rage situation, requires a sanction that reflects denunciation in a way a conditional discharge does not.
[29] I turn to the Supreme Court of Canada’s test in R. v. Proulx, 2000 SCC 5 at para. 77 to determine if a conditional sentence is appropriate instead.[^2]
Once the sentencing judge has found the offender guilty of an offence for which there is no minimum term of imprisonment, has rejected both a probationary sentence and a penitentiary term as inappropriate, and is satisfied that the offender would not endanger the community, the judge must then consider where a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss.718 to 718.2.
[30] There is no minimum term of custody for the offence of assault causing bodily harm, a probationary sentence[^3] is insufficient to reflect the gravity of the offence and the blameworthiness of the offender, and a penitentiary sentence is clearly too harsh in these circumstances for this offender.
[31] Mr. Chrysostomou has no criminal record and none of the collateral information provided in the PSR indicates he is normally violent or poses a threat to the community. I am satisfied he would not endanger the community if he were to serve a sentence in the community.
[32] As already explained, the principles of denunciation and deterrence are applicable in this case, but so are restraint and rehabilitation. A conditional sentence can reflect all four principles in this circumstance as stated in Proulx at para. 22:
The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration. Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.
[33] I find that a carefully crafted conditional sentence can reflect the denunciation and deterrence required, and the applicable restraint, address Mr. Chrysostomou’s rehabilitation potential, and provide an opportunity for him to contribute to the community in reparation.
Sentence
[34] Mr. Chrysostomou, I sentence you to a 6-month Conditional Sentence Order. You will:
- report today and thereafter as required by your Conditional Sentence Supervisor.
- remain in your residence except to attend: your own medical emergencies; pre-scheduled medical, dental, or legal appointments; counselling; employment; and community service obligations. These exceptions include travelling to, from, and while at your pre-approved destinations.
- attend counselling for anger management, life skills, and financial literacy, as directed by your Conditional Sentence Supervisor.
- attend for your personal necessities for a period of 5 hours on Saturday or Sunday as pre-approved by your Conditional Sentence Supervisor.
- sign releases to enable your Conditional Sentence Supervisor to monitor your attendance and completion of counselling.
- complete 20 hours of community service within the 6 months of the Conditional Sentence Order.
- have no contact with Mohammad Akrami.
[35] You will also be on Probation for 18 months during which time you will:
- report within 48 hours of the completion of your Conditional Sentence to your Probation Officer and thereafter as required.
- have no contact with Mohammad Omar Akrami.
- attend counselling for anger management, life skills and financial literacy as directed by your Probation Officer.
- sign releases for your Probation Officer to monitor your attendance and completion of your counselling.
- complete 50 hours of community service within the first year of your probation.
[36] You will also:
i. be prohibited from possessing weapons pursuant to a s. 109 Order for 3 years.
ii. provide a sample of your DNA today at this Courthouse, pursuant to s. 487.04(a).
iii. pay the $100 Victim Fine Surcharge, and you will have 6 months to pay it.
Released: January 6, 2025
Signed: Justice Cidalia C. G. Faria
[^1]: Defence cases: R. v. Ramirez, 2012 ABPC 176, a 21-year-old with no criminal record, outsized in a physical altercation obtained but did not use a machete in a bar dispute, was sentenced to a conditional discharge. R. v. Wauer, 2014 ABCA 270, the offender was sentenced to a conditional discharge for having a machete, among other weapons, in his vehicle, after a theft dispute. Crown cases: R. v. Boyce, [2007] O.J. No. 5614, the non-Canadian citizen truck driver offender with two children, with no criminal record, and good antecedents, was sentenced after trial for an assault with a machete on a man known to him, causing a cut to the head and the hand to 5 months custody.
[^2]: R. v. Proulx, 2000 SCC 5
[^3]: By this I mean a Suspended Sentence with Probation has been considered and is inappropriate to reflect the required denunciation and deterrence.