ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-A11518
DATE: 2012/07/25

BETWEEN:

HER MAJESTY THE QUEEN – and – WALID ABDULSELAM SARAJ

Stephen J. Donoghue, for the Crown

Michel L. Bisson, for the Accused

SUBMISSIONS HEARD: July 4, 2012

REASONS FOR SENTENCING

R. SMITH J.

[ 1 ] The accused Walid Abdulselam Saraj (“Mr. Saraj”) was convicted of aggravated assault contrary to section 268(2) of the Criminal Code of Canada . He was found guilty of striking a taxi driver with a metal rod while his co‑accused Mr. Bell punched the taxi driver knocking him to the ground. The taxi driver suffered a fractured skull, was in a coma for approximately five (5) days and in the hospital for nineteen (19) days and in rehabilitation therapy for a further three (3) weeks period.

Circumstances of the Offence

[ 2 ] The accused was found to have disembarked from a taxi without paying the driver along with his friend Bradley Bell. When the taxi driver got out of his vehicle and approached the accused and Mr. Bell, the accused struck the taxi driver with a small metal rod on the back of the head while Mr. Bell punched him. The taxi driver fell to the ground and suffered a fractured skull. While the taxi driver lay on the ground, both the accused and Mr. Bell kicked him in the mid‑section with vigorous soccerlike kicks.

[ 3 ] The accused and Mr. Bell then ran away without calling for assistance for the taxi driver. There was evidence that the accused had been consuming alcohol and some marijuana on the evening in question.

[ 4 ] The taxi driver was in a coma for five (5) days, was in the hospital for nineteen (19) days, spent a further three (3) weeks period in a rehabilitation centre, and was off work for several months.

[ 5 ] The taxi driver has filed a Victim Impact Statement stating that he continues to suffer from headaches and has difficulty concentrating. The taxi driver has also permanently lost his sense of smell.

Circumstances of the Offender

[ 6 ] The accused is presently 25 years of age and was born in Africa and immigrated to Canada with his family when he was 12 years of age. He is the eldest of four children and has had no contact with his father since immigrating to Canada. He believes that his father is living somewhere in East Africa.

[ 7 ] The subject’s mother currently resides in Kanata with his three siblings. The offender has one brother and two sisters. The accused has a lengthy criminal record and has been in conflict with the law since 2005 as a Young Offender. Since 2005, Mr. Saraj has had ten (10) convictions for breach of a recognizance and two (2) convictions for failing to comply with terms of a probation order. He has also two (2) convictions for obstructing a peace officer, four (4) convictions for trafficking in a schedule 1 substance, one (1) in 2007 and three (3) on September 2011 while he was on bail pending his trial on these proceedings.

[ 8 ] The offender has completed a total of 11.5 secondary school credits and requires another 18.5 credits to obtain his high school diploma.

[ 9 ] The offender has worked for a period of time at Tim Hortons and also as an oil technician in 2008 with Mr. Lube until sometime in 2010. He was terminated in March 2011 for being too tardy.

[ 10 ] The offender now states that he has a drug problem however, he has not sought any form of treatment or intervention to date.

[ 11 ] The offender has not shown any remorse except for his statement today or accepted any responsibility for his actions. This is not an aggravating factor but is rather the absence of a mitigating factor.

Impact on the Victim

[ 12 ] The injuries to the victim have been described above. The victim continues to have headaches and suffers from lack of concentration and has permanently lost his sense of smell. The victim states that in addition, he is unable to trust people anymore as the result of being badly beaten and left for dead by the accused and Mr. Bell.

Positions of the Crown and the Defence

[ 13 ] The Crown submits that the case law establishes that there is a broad range of sentence on a conviction for aggravated assault, ranging from the upper reformatory period of approximately eighteen (18) months to six (6) years. The Crown seeks a sentence of five (5) to six (6) years based on the number of aggravating factors in this case which will be discussed below.

[ 14 ] The defence seeks a sentence of time served. The Crown and the defence agree that the offender has spent 262 days in pre‑trial custody related to this conviction. The defence submits that the offender should be given two for one credit which amounts to a credit of approximately for 524 days which is approximately seventeen and one half (17.5) months plus two (2) to three (3) years probation.

Mitigating Factors

[ 15 ] The following are mitigating factors.

(a) The accused has relatively few mitigating factors other than that he is a relatively young man and is only 25 years of age. He has a lengthy criminal record, but his longest previous custodial sentence on September of 2011 was for nine (9) months, and he has no previous violent offences or violence related offences; and

(b) the defence submits that he will likely be deported to Eritrea, and this is a mitigating factor which warrants some consideration in sentencing. I do not give this factor very much weight in this sentence as this is a separate situation.

Aggravating Factors

[ 16 ] The following are aggravating factors:

(a) the offender has a lengthy criminal record from between 2005 and 2011, with two (2) prior convictions for obstructing a peace officer, ten (10) convictions for failing to comply with terms of recognizance, two (2) convictions for breaches of probation, one (1) conviction for trafficking in schedule 1 substance in 2007 and three (3) further trafficking convictions in 2011;

(b) the assault on the taxi driver was unprovoked and the accused used a weapon, namely a light metal bar during the assault;

(c) the accused along with Mr. Bell kicked the victim violently several times while he lay defenceless on the ground. The assault involved two younger men beating the older taxi driver and was a two against one situation;

(d) the accused and Mr. Bell ran away from the unconscious victim without contacting the police or the ambulance services;

(e) the victim suffered extensive injuries. He was hit with a bar by the accused while Mr. Bell punched him. The accused fell to the ground unconscious, which I find was either from the punch or from hitting his head on the sidewalk suffering a fractured skull and bleeding on his brain. The victim spent five (5) days in a coma, nineteen (19) days in the hospital and three (3) weeks in rehabilitation and took several months to return to work. He has permanently lost the sense of smell and continues to have headaches and difficulty concentrating. He states that he is not the same person as he was before;

(f) the victim was a taxi driver and has been recognized as a vulnerable person who is at great risk and provides a valuable service in large cities such as the City of Ottawa. Taxi drivers are required to work late at night in isolated conditions and accept passengers who they do not know who may be intoxicated or using drugs; and

(g) while the accused was not involved in a robbery, he did get out of the taxi cab along with Mr. Bell without paying for the fare and therefore did not pay for the taxi services.

Principles of Sentencing

[ 17 ] The principles of sentencing are set out in 718.01, 718.02, 718.1 and 718.2 of the Criminal Code of Canada . The main applicable principles are specific and general deterrence and denunciation of the offender’s conduct. The principle of rehabilitation remains given the relatively youthful age of the offender.

Case Law

[ 18 ] The Crown has filed a number of cases which have held that the range of sentence for aggravated assault is from upper reformatory to six years. In R. v. Craig , 2005 BCCA 484 , 201 C.C.C. (3d) 495, the British Columbia Court of Appeal cited a number of cases and stated: “The range of sentence for similar offences [namely aggravated assault] was described as being between 16 months and six years” in R. v. Johnson , (1998), 1998 4838 (BC CA) , 131 C.C.C. (3d) 274 (B.C.C.A), two years less a day to six years in R. v. Biln , 1999 BCCA 369, 1999 BCCA 369 (), and, most recently, between 18 months and six years in R. v. Willier , 2005 BCCA 404 , BCCA 404 ().

[ 19 ] In R. v. Craig , supra , in para. 10 , the British Columbia Court of Appeal stated as follows:

In determining an appropriate sentence within this broad range, an unprovoked attack with a weapon tends to result in the imposition of a sentence at the higher end while a consensual fight that has escalated with resulting injury tends to result in a sentence at the lower end.

[ 20 ] In R. v. Craig , supra , the respondent stabbed the woman with whom he had lived for 23 years in front of her daughter at least three times and inflicted cuts to her hands before he was pulled away from her. The attack was without provocation or warning such that the victim was completely unsuspecting and defenceless. Her injuries were severe. She required emergency surgery and blood transfusions. The trial judge imposed an effective sentence of two (2) years of imprisonment which was at the low end of the range. The Court of Appeal stated as follows: “… I consider the sentence the judge ought to have imposed was a sentence of three years in prison instead of two with the respondent being given a 12 month credit for the time he spent in remand.”

[ 21 ] In R. v. Vickerson , (2005) 2005 23678 (ON CA) , 199 C.C.C. (3d) 165 (Ont. C.A.), the accused was convicted of two counts of aggravated assault and two counts of assault with a weapon. A sentence of six (6) years imprisonment was imposed. The victim testified that he was hit in the face, possibly with a metal bar from a weightlifting set, after being involved in an encounter with a number of women. The trial judge held that it was unprovoked attack with some prior planning because the accused brought a metal bar with him intending to use it to carry out his plan once he arrived at the scene. The appellant had a prior criminal record and the assault was very serious. The Court of Appeal held that the sentence of six (6) years was within the appropriate range and was a fit sentence.

[ 22 ] Mr. Saraj did not use a heavy metal bar. The metal bar used in the assault by the accused was a lightweight bar and I found was not the cause of the skull fracture. I found the skull fracture was either caused by Mr. Bell punching the victim or when the victim fell to the ground hitting his head on the sidewalk.

[ 23 ] Mr. Saraj was convicted of aggravated assault because he was a party to the assault on the taxi driver. Mr. Saraj actively participated in the assault by striking the victim on the head with a metal bar and then kicked the victim while he lay defenceless on the ground. As a result, I find that while Mr. Saraj’s actions did not cause the skull fracture or the maiming of the victim, as I found that those injuries were caused by the punch delivered by Mr. Bell, Mr. Saraj is equally responsible for the injuries suffered by the victim because he was a full participating party to the assault.

[ 24 ] The Crown has filed a number of decisions in support of the proposition that the taxi drivers are a vulnerable class of individuals. In R. v. Finnis , [1978] O.J. No. 831 (Ont. Sup. Crt.) , the Court stated:

Taxi drivers are vulnerable to robbery and must to be protected against conduct such as that of which the appellant was guilty, by the imposition of appropriate sentences. Notwithstanding the seriousness of the offence, however, we are all of the view that the sentence imposed is excessive.

[ 25 ] The Crown also cited R. v. Kusi , [1999] O.J. No. 3450 (Ont. C.A.) ; R. v. Smith , [2007] O.J. No. 2588 ; R. v. Wright , 2002 ABCA 170 , 303 A.R. 371 (Alta C.A.) and R. v. Sam , [1986] B.C.J. No. 686 (B.C. C.A.) which held that taxi drivers are a vulnerable group. The defence does not dispute that the taxi drivers are vulnerable and must be protected from being assaulted with a weapon by more than one individual when unprovoked.

Parity in Sentencing

[ 26 ] The main argument in favour of the offender is the principle of parity as set out in section 718.2 (b) of the Criminal Code which states: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;”.

[ 27 ] In this case, Mr. Bell, who punched and kicked the victim as he lay defenceless on the ground pleaded guilty to assault causing bodily harm and was sentenced to a twelve (12) month custodial sentence plus two (2) years probation. He was also required to provide DNA and subject to a weapons prohibition. He pleaded guilty to assault causing bodily harm, a breach of probation and one count of breach of recognizance. Mr. Bell was given credit on a one for one basis for the 124 days spent in pre‑trial custody.

[ 28 ] The case law is clear that the parity principle does not give Mr. Saraj the benefit of factors that justified Mr. Bell being treated with leniency in his favour or give him the benefit of Mr. Bell having received very very low sentence, which I find occurred in this case.

[ 29 ] Mr. Bell had two very important mitigating factors which reduced the sentence that he received. Mr. Bell pleaded guilty and also showed remorse and accepted responsibility for his actions. While the lack of remorse and the lack of a guilty plea are not aggravating factors, Mr. Saraj does not get the benefit of these mitigating factors.

[ 30 ] In R. v. Jamieson at 2009 ABCA 208 (Alta C.A.), [2009] A.J. No. 575, the victim mistook his own vehicle for the accused’s father’s truck. As he tried to insert the key into the wrong truck, the accused believed that the victim was trying to steal his father’s truck and ran to accost him. Mr. Jamieson and a friend delivered a severe beating to the victim who required surgery for injuries to his face and head, including having plates inserted in his face and a permanent scar on his forehead.

[ 31 ] In Jamieson , supra, the accused benefitted from the mitigating factors of an expression of remorse and his acceptance of full responsibility. He had support from his family and he was a good family man and an employee. The accused was also under the misapprehension that the victim was attempting to steal his father’s truck. The Court described it as follows: “… a two‑on‑one vigilante attack on an innocent, unarmed victim.” In Jamieson , the Crown appealed and sought a sentence of three (3) to five (5) years. The Court stated that they could not “…ignore the sentence of four months given to the co-accused albeit for the lesser offence of assault causing bodily harm.” The Court of Appeal imposed a sentence of eighteen (18) months imprisonment followed by two (2) years probation.

[ 32 ] I agree with the Crown’s position that the Jamieson , supra , decision is distinguishable by the accused’s remorse and acceptance of full responsibility as well as his mistaken belief that the victim was attempting to steal his father’s truck. These mitigating factors are not available to Mr. Saraj.

[ 33 ] I find that Mr. Saraj was equally responsible with Mr. Bell in assaulting the taxi driver. Notwithstanding that Mr. Bell’s punch caused the victim’s skull fracture and concussion, I find that the accused was equally responsible as he also assaulted the victim with a metal bar and vigorously kicked the victim several times as he lay defenceless on the ground. As a result, I find he was equally responsible as a party to the offence for the injuries by the victim.

Disposition on Sentence

[ 34 ] Having considered the above case law, the applicable sentencing principles being primarily denunciation, and general and specific deterrence, the principle of parity with the sentence given to Mr. Bell, the lack of mitigating factors in favour of Mr. Saraj, and the numerous serious aggravating factors, I sentence him to three (3) years in prison.

[ 35 ] The Crown and defence agree that the accused has spent 262 days in pre‑trial custody on these charges. The offence pre-dates the amendments to the Criminal Code and therefore I must consider whether a two‑for‑one credit should be given for pre‑trial custody.

[ 36 ] In oral submissions, the defence submitted that the accused spent the time at the Regional Detention Centre as the third individual in a cell however, no evidence was presented at the sentencing hearing to establish the conditions in which Mr. Saraj spent his pre‑trial custody. I am unable to give the oral submissions of counsel any weight because they are not evidence.

[ 37 ] In its recent amendments to the Criminal Code , Parliament has established that by that its intentions are that generally credit for pre‑trial custody should be on a one‑for‑one basis. In this case, Mr. Saraj was kept in jail awaiting trial largely because of his previous ten (10) convictions for breaches of the terms of recognizance and two (2) breaches of probation. In addition, he committed a breach of recognizance and a further three criminal offences of trafficking in narcotics in September of 2011, while he was on bail for these charges. For these reasons, I will only give Mr. Saraj credit on a one‑for‑one basis for the 262 days spent in pre‑trial custody.

Summary

[ 38 ] The accused is therefore sentenced to:

(a) a period of imprisonment of three (3) years with credit being given on a one‑for‑one basis for 262 days of pre‑trial custody.

(b) the accused will provide a DNA sample;

(c) the accused is subject to a weapons prohibition for life pursuant to s. 109 of the Criminal Code .

R. Smith J.

Given orally on: July 25, 2012

COURT FILE NO.: 09-A11518

DATE: 2012/07/25

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – WALID ABDULSELAM SARAJ REASONS FOR SENTENCING R. Smith J.

Given orally on: July 25, 2012