ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-2599
DATE: 2012-02-29
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. Brent Bentham, for the Crown
Applicant
- and -
PHILIP LEE SZOSTAK
Self-Represented Mr. Peter Boushy, Amicus curiae
Respondent
HEARD: in Hamilton January 9, 10, 11, 12, 16, 17, 19, 30 and 31, 2012
REASONS FOR JUDGMENT
LOFCHIK J.
[ 1 ] On December 22 nd , 2010 I found Philip Szostak guilty of the offences of assault causing bodily harm, breach of probation (7 counts), aggravated assault, assault with a weapon, possession of a dangerous weapon, threaten death, and obstruct justice.
[ 2 ] The Crown now seeks to have Mr. Szostak declared a dangerous offender.
THE PREDICATE OFFENCES
[ 3 ] The assault causing bodily harm conviction arose as a result of the attack by Mr. Szostak, the offender, upon one Eric Englert on the night of August 11 th , 2008 following a night of drinking at a local bar. Szostak had been asking Englert to turn over to him drugs which Englert was holding for another individual. Szostak and Englert had been long time acquaintances and had been dealing drugs together in the past. Englert refused to turn over the drugs as requested.
[ 4 ] At closing time Szostak drove Englert to Englert’s sister’s home where he was staying. He told Englert he would wait in the car while Englert went inside to get the drugs. Englert could not get into the house and came out to advise Szostak of that fact. He then asked Szostak to drive him to his brother’s house where he planned to spend the night.
[ 5 ] Szostak started to drive Englert to his brother’s house but then turned into a nearby cemetery where he stopped his vehicle, came around to the passenger side, dragged Englert out of the vehicle and beat him up, leaving him at the cemetery.
[ 6 ] Englert sustained injuries to his left eye (a number of stitches were required to close a cut above the left eye), blackened bruising of the elbow, left eye, a bleeding nose, sore ribs with bruising, and abrasions to both lower legs.
[ 7 ] Police were called and attempted to investigate the incident, however, Englert was not cooperative and refused to disclose the truth as to what had occurred. He did not identify Szostak as a suspect, choosing rather to identify three unknown males. In reality Englert feared for his safety and was concerned Szostak would harm him if he disclosed the truth to police.
[ 8 ] The offences of aggravated assault, assault with a weapon and a possession of a weapon for a purpose dangerous to the public peace were the result of an attack by Szostak on Eric Englert on August 14 th , 2009. This incident seems to have stemmed from a belief by Szostak that Englert owed him money as a result of Englert taking two bicycles belonging to Szostak while Szostak was incarcerated on another matter. The bicycles were in the possession of Szostak’s grandmother who naively turned them over to Mr. Englert believing him to be Szostak’s friend. Once he was released from jail Szostak called Englert and demanded restitution for the stolen goods, but this was not forthcoming.
[ 9 ] On August 14 th , 2009 there was a chance encounter between Englert and Szostak outside a beer store in the City of Hamilton. Englert had gone there to buy beer with a friend. Szostak waited outside the beer store for Englert and as Englert exited the store Szostak approached him and slashed his face causing a laceration on the left side of Englert’s face through the cheek area that required approximately 50 stitches to close spanning from the ear to the mid lower lip. Englert was left with a significant disfiguring scar as a result of the attack. When police investigated this attack Mr. Englehart also told them about Szostak’s involvement in the attack in August 2008.
[ 10 ] The threaten death and obstruction of justice convictions are the result of telephone calls made by Szostak to Englert on August 25 th , 2009 threatening Englert and his family with harm if Englert were to show up for court or trial or cooperate with the police in respect of the August 14 th , 2009 attack.
[ 11 ] One of the breach of probation convictions results from the fact that Szostak was on probation at the time of the August 2008 assault.
[ 12 ] The balance of the breach of probation convictions arise from the fact that Szostak was on probation at the time of the August 2009 offences.
BACKGROUND AND OVERVIEW
[ 13 ] Philip Szostak is a 29 year repeat offender who is appearing before the Court for sentencing on a number of serious charges. He has committed violent offences in the past, some of which I will set out below.
[ 14 ] Szostak was born in South Korea, having been adopted at the age of 16 months. From information provided in a pre-sentence report, which has been filed as exhibit I in these proceedings, it appears that he was raised within a family that lead a privileged lifestyle. He was afforded the opportunity to travel and of attending at a private school. However, from an early age he displayed difficulties with his behaviour and attitude. He was diagnosed with Attention Deficit Disorder and Oppositional Defiance Disorder. He received counseling support for several years, however, continued to exhibit problematic behaviour at home and at school. He was removed from a private school due to a lack of performance and transferred to a secondary school within the public school system. His behaviour within the home and his academic progress did not improve and he was therefore sent by his parents to a private military boarding school. Although he reportedly did well there, he indicated that he did not like it. He returned to the public school system two years later. He was then charged and convicted with mischief in relation to making bomb threats at his school.
[ 15 ] Szostak has a rather extensive criminal record for his age as set out in the pre-sentence report, which is exhibit I in these proceedings, and in an event chronology spanning 1998 to 2011 prepared by the Crown which I find to be accurate and I append as Schedule 1 to these reasons. The longest time that he has been in the community and crime free as an adult has been about three years.
[ 16 ] Szostak has spent a good part of his adulthood running into difficulties with the law with two prior serious assaults, which are relied upon by the Crown in these proceedings, one leading to a federal term.
[ 17 ] On March 9 th , 2006, Szostak pled guilty to assaulting Dennis McLean on July 23 rd , 2005 in a bar on Hess Street in the City of Hamilton. Szostak apparently attempted to push past McLean who was in a line up waiting to use a washroom. McLean told him “chill out” and wait his turn. They exchanged words. Szostak again tried to push past McLean. This time McLean held out his arm so that Szostak could not pass and told Szostak to wait his turn. Szostak then struck McLean over the head with a beer bottle cutting him on his head and right cheek bone. Szostak pled guilty to Assault with a Weapon and Breach of Recognizance arising from an earlier incident and was sentenced to 45 days jail in addition to the 146 days he had spent in pretrial custody, plus two years probation.
[ 18 ] On July 14 th , 2006, Szostak pled guilty to aggravated assault and breach of probation in connection with the stabbing of Gerald Cunningham in an incident on May 30 th , 2006. On that day Cunningham had attended at a beach restaurant in the City of Hamilton when he was approached by Szostak and two females who appeared to be drunk. Szostak was ranting about being a North Korean tough guy raised by Polish parents. Szostak subsequently became involved in a fight with five unknown males who seemed to be getting the better of the situation. He at some point went back to his car and removed some scissors and returned to the scene of the fight where Cunningham was standing, the five unknown males having left the area. At this point Szostak slashed Cunningham across the neck with the scissors and fled the scene. The victim sustained serious but not life threatening injuries. He had a three inch gash one quarter inch wide narrowly missing the carotid artery and requiring surgery. At the time of the offence Szostak was bound by two probation orders. As a result Szostak was sentenced to two year’s incarceration to be followed by three years probation.
[ 19 ] The Crown seeks a dangerous offender designation under s. 753(1)(a)(i) or (ii). The relevant provisions of s. 753 of the Criminal Code are as follows:
- (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied
( a ) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph ( a ) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing
(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,
(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or
[ 20 ] The Supreme Court in R. v. Lyons , 1987 25 (SCC) , [1987] 2 SCR 309 at para. 43 summarized this legislation as follows:
First, the legislation applies only to persons convicted of a "serious personal injury offence" as defined in s. 687 [now s. 752]. These offences all relate to conduct tending to cause severe physical danger or severe psychological injury to other persons. Significantly, the maximum penalty for all these offences must be at least ten years' imprisonment. Secondly, it must be established to the satisfaction of the court that the offence for which the person has been convicted is not an isolated occurrence, but part of a pattern of behaviour which has involved violence, aggressive or brutal conduct, or a failure to control sexual impulses. Thirdly, it must be established that the pattern of conduct is very likely to continue and to result in the kind of suffering against which the section seeks to protect, namely, conduct endangering the life, safety or physical well‑being of others … Also explicit in one form or another in each subparagraph of s. 687 [now s. 753] is the requirement that the court must be satisfied that the pattern of conduct is substantially or pathologically intractable.
[ 21 ] To open the gate to the dangerous offender proceedings, the Crown must first establish the foundation for the application, namely that the predicate (or triggering offence qualifies as “serious personal injury offence” within the meaning of s. 752 of the Criminal Code . For the purposes of these proceedings, I am satisfied that the conviction for assault causing bodily harm arising from the August 28 assault and the conviction for aggravated assault arising from the August 2009 assault described above each constitute a serious personal injury offence under subsection (a) of the definition in s. 752 of the Code . The issue to be determined therefore is, are the predicate offences herein part of a pattern of offending as required by s. 753(1)(a)(i) or (ii) of the dangerous offender provisions of the Code ?
[ ... text continues exactly as in the original decision ...]
LOFCHIK J.
Released: February 29, 2012
COURT FILE NO.: 10-2599
DATE: 2012-02-29
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN Applicant - and – PHILIP LEE SZOSTAK Respondent
REASONS FOR JUDGMENT
LOFCHIK J.
TRL:mg
Released: February 29, 2012