Court File No. 10-224

R. v. Arashvand, 2012 ONSC 5852

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

ARASH ARASHVAND

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE M.K. FUERST

on October 5, 2012, at BARRIE, Ontario

APPEARANCES:

K. McCleave and K. Staats Counsel for the Crown

M. Wyszomierska Counsel for Arash Arashvand

Friday, October 5, 2012

R E A S O N S F O R S E N T E N C E

FUERST J. (Orally):

Introduction

[1] Ali Garakan was stabbed to death on the evening of November 6th, 2008, in the area of Yonge Street and Steeles Avenue. His body was transported to Essa Township where it was dumped in a ditch on the 6th Line. Gasoline was poured on his body, which was set on fire and left to burn.

[2] Fortuitously, two civilians discovered the body while it was still burning and called the police.

[3] Arash Arashvand was charged, along with Mohammad Al-Kazragy and Payam Khastou, with the first degree murder of Mr. Garakan. After a lengthy trial, the jury convicted Mr. Al-Kazragy and Mr. Khastou of first degree murder, and Mr. Arashvand of second degree murder.

[4] Mr. Arashvand faces a mandatory sentence of life imprisonment. The only matter for me to decide is the period that he must serve before he is eligible to apply for parole.

The Principles Governing the Parole Ineligibility Determination

[5] Section 745 of the Criminal Code provides that on conviction for second degree murder, the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years. Section 745.4 specifically empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years.

[6] In exercising his or her discretion under section 745.4, the sentencing judge must have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.

[7] As a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by the sentencing judge's determination that, according to the criteria set out in section 745.4, the offender should wait a longer period before having his suitability for release assessed. The determination of the parole ineligibility period is "a very fact sensitive process": see R. v. Shropshire, [1995] 4 S.C.R. 227, at paragraph 18.

[8] An increased parole ineligibility period does not require unusual circumstances: see Shropshire, at paragraphs 26 to 27.

[9] In R. v. McKnight, 135 C.C.C. (3d) 41 (Ont.C.A.), the majority held that, in assessing the section 745.4 criteria and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing are relevant. Those objectives, as set out in section 718, are denunciation of unlawful conduct, deterrence both general and specific, the separation of offenders from society where necessary, rehabilitation, reparation for harm done to the victim or to the community, and promotion of a sense of responsibility in offenders and acknowledgement of harm done to victims and to the community. However, the majority in McKnight observed that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender's prospects of rehabilitation.

[10] Regardless of the period of parole ineligibility imposed, the sentence remains one of life imprisonment. The sentencing judge does not decide when the offender should be paroled, but merely the period he must serve before parole can even be considered: see R. v. Trudeau, (1987) 24 O.A.C. 376 (Ont.C.A.).

The Positions of the Parties

[11] On behalf of the Crown, Ms. McCleave submits that the parole ineligibility period should be increased to 20 years. She emphasizes the brutality of the murder, the indignity committed to Mr. Garakan's body, Mr. Arashvand's post-offence conduct including the destruction of evidence, the fact that Mr. Arashvand was on probation for assault and bound by other court orders that he clearly violated, the recommendation of the jury, and Mr. Arashvand's continued assaultive behaviour while in jail. She seeks a section 109 weapons prohibition order for life, a DNA order, and a section 743.21 non-communication order with respect to the co-offenders and other named persons.

[12] On behalf of the defence, Ms. Wyszomierska acknowledges that the parole ineligibility period should be increased, but submits that it should be set at 12 to 14 years. She contends that the evidence does not establish beyond a reasonable doubt that Mr. Arashvand stabbed Mr. Garakan. She also emphasizes Mr. Arashvand's youth at the time of the offence, his difficult personal circumstances, his minimal criminal antecedents, and the support of his own and his girlfriend's families that speak to his rehabilitative prospects. She made no submissions about the ancillary orders sought by Crown counsel except that the section 109 order should not exceed the minimum, and as to the exclusion of one person from the non-communication order.

The Jury's Verdict

[13] The Crown sought convictions for first degree murder for all three offenders. The liability of each offender for planned and deliberate first degree murder was left on the basis that the particular offender was a principal, an aider, or an abettor. On consent of all counsel, second degree murder was left with the jury as an included offence. Again, the liability of each offender for second degree murder was left on the basis that the particular offender was a principal, an aider, or an abettor.

[14] It is implicit in the jury's verdicts that while they were satisfied beyond a reasonable doubt that Mr. Al-Kazragy and Mr. Khastou committed planned and deliberate first degree murder, they were not so satisfied in respect of Mr. Arashvand. Rather, they were satisfied beyond a reasonable doubt that he committed second degree murder. It is not clear whether they found Mr. Arashvand guilty as a principal, an aider, or an abettor, or even whether they were unanimous as to which of those roles he played.

[15] Where the basis of the jury's verdict is unclear, the sentencing judge should make his or her own independent determination of the relevant facts consistent with the jury's verdict: see R. v. Ferguson, 2008 SCC 6, at paragraph 59; R. v. Roncaioli, 2011 ONCA 378, at paragraph 18. The sentencing judge should find only those facts, consistent with the jury's verdict, as are necessary to deal with the issues on sentencing: see Ferguson, at paragraph 18. To rely on an aggravating fact, the sentencing judge must be persuaded of it beyond a reasonable doubt.

The Nature of the Offence and the Circumstances Surrounding its Commission

[16] Mr. Garakan was the 47 year old father of a teenager, Natasha Gorgan. He was divorced from her mother, and lived in a condominium in Thornhill. In the fall of 2008 Ms. Gorgan was living with her mother, but two of her girlfriends were living at Mr. Garakan's condominium. All three of the girls were friends with, and, in some instances, sexual intimates of one or more of the offenders.

[17] Mr. Al-Kazragy and Mr. Khastou were close friends. By the fall of 2008, Mr. Arashvand was spending time with them and with the girls at Mr. Khastou's home, driving around in Mr. Khastou's car, and elsewhere in North York.

[18] I find beyond a reasonable doubt on the evidence, including that of Ms. Gorgan, that Mr. Arashvand, along with the other offenders, disliked Mr. Garakan because of unfounded suspicions that Mr. Garakan had an inappropriate relationship with one of the girls.

[19] I find beyond a reasonable doubt on the evidence, including the testimony of Mr. Karimi, Ms. Gorgan, Ms. Adams-Chin, and Ms. Afshar-Taromi, that in the fall of 2008 Mr. Arashvand habitually carried a folding knife, and that, in addition, he had access to a "shank" style knife that belonged to the father of April Yu.

[20] I find beyond a reasonable doubt on the evidence, including the evidence of bloodstaining in and clean-up of Mr. Khastou's car, that Mr. Garakan was murdered in that vehicle on the evening of November 6th, 2008.

[21] It was undisputed at trial that the cause of death was blood loss resulting from numerous stab wounds to the chest, with penetration of the heart and upper lobe of the lung. There were a total of 15 stab wounds to Mr. Garakan's chest and upper abdomen. Three wounds to the lung and two wounds to the heart were significant, with the others being superficial. The wounds were of different depths and had different directionality. Mr. Garakan's throat was cut. In addition, stab wounds were inflicted to both Mr. Garakan's legs, either right at the time or death or after death. I find beyond a reasonable doubt on the evidence, including the testimony of Dr. Feltis, that more than one knife was used to inflict the injuries to Mr. Garakan.

[22] I find beyond a reasonable doubt on the evidence, including the cell phone records, that Mr. Arashvand was present with the other offenders when an unarmed Mr. Garakan, wearing a back brace, was set upon by all three men. I find beyond a reasonable doubt that Mr. Arashvand contributed to Mr. Garakan's death by stabbing him in the chest and upper abdomen. I find beyond a reasonable doubt that Mr. Arashvand did so intending to kill Mr. Garakan, even though he did not participate in planning and deliberating the killing.

[23] Although urged by Crown counsel to do so, I do not find beyond a reasonable doubt that Mr. Garakan was alive when he was placed in the trunk of the car. I do find beyond a reasonable doubt on the evidence, including the cell phone records, that Mr. Arashvand participated in moving Mr. Garakan into the trunk of Mr. Khastou's car to facilitate the disposal of the body, then travelled north with the other offenders in the car to Essa Township. I find beyond a reasonable doubt that Mr. Arashvand participated in dumping Mr. Garakan's body in the ditch, and setting it on fire with gasoline. I find beyond a reasonable doubt that he left the area with the other offenders in Mr. Khastou's car and went to the home of Ali Karimi, where he assisted Mr. Khastou in an initial clean-up of the vehicle.

[24] It was not disputed at trial that Mr. Arashvand soon after travelled with Mr. Khastou and Mr. Al-Kazragy to AutoRun in Mr. Khastou's car. As depicted on videotape, he there changed his clothes and participated in hours of clean-up work with Mr. Khastou and Mr. Al-Kazragy, attempting to wash blood from the car and burning its bloodstained contents. En route to Mr. Khastou's home, Mr. Arashvand participated in throwing away garbage bags containing evidence that would link the offenders to the murder.

[25] It was not disputed at trial that Mr. Arashvand fled to western Canada with Mr. Al-Kazragy and Mr. Khastou to avoid apprehension, then returned to Toronto and hid out at the home of his girlfriend's parents, knowing that he was wanted by the police. He turned himself in to the police only after he was confronted by his girlfriend's parents about his identity. This was almost three weeks after the murder.

[26] Crown counsel filed no victim impact statements. I was told that Mr. Garakan's daughter and ex-wife declined the invitation to provide them.

The Character of Mr. Arashvand

[27] Mr. Arashvand is now 26 years old. He was 22 years old at the time of the offence. He is an Iranian citizen, having come to Canada from Iran in 2005 when he was 17 years old. He claimed refugee status in Canada. He was granted Convention refugee status in 2006. He is currently considered a foreign national in Canada with protected person status.

[28] Mr. Arashvand's parents live in Iran. His five siblings live there and in England. No member of his family lives in Canada.

[29] Mr. Arashvand attained the equivalent of grade 11 in Iran. After he came to Canada he attended high school briefly. Then he worked at different jobs including at a fast food restaurant, on a farm, and in the flooring business. He was never employed at any one job for a long period of time.

[30] In April 2007 he was injured in a motorcycle accident. Because of the nature of his injuries, he received Ontario Disability Support Program payments. He was not working at the time of the offence.

[31] Mr. Arashvand began using marijuana and hashish while in Iran. After he came to Canada, he used marijuana daily. Additionally, he sold drugs on the street. He concedes that he had a drug problem.

[32] Lidija Juhas testified at trial that she and Mr. Arashvand began a relationship in April 2008 that was ongoing at the time of the offence. She was then a 16 year old high school student. She became pregnant by Mr. Arashvand while he was staying at her parents' home while avoiding apprehension by the police. Their son, who is now three years old, was born in […] 2009. Ms. Juhas and Mr. Arashvand have maintained regular contact since his arrest, in part by breaching a court order that regulated their telephone communications. Ms. Juhas states that she has seen change in Mr. Arashvand since his incarceration, and that he keeps in touch only with people who are a positive influence. She plans to move so that she is near him while he serves his sentence, and is committed to a relationship with him. Her mother and father confirmed that they support her decision. They too are supportive of Mr. Arashvand, whom they believe motivated their daughter to finish school and start a career.

[33] At the time of the offence Mr. Arashvand was rarely in contact with his parents and siblings. That had been the case for some time. Since his incarceration, he has renewed contact with them. He communicates with them regularly from the jail. They are supportive of him, and also of Ms. Juhas and the couple's child.

[34] The pre-sentence reporter noted that Mr. Arashvand appeared to have little stability in his life. Mr. Arashvand acknowledged to the pre-sentence reporter that after coming to Canada, he had anger issues, and lived a careless and childish life. Mr. Arashvand told the pre-sentence reporter that he has become a new and better person while in jail. He told me at the sentencing hearing that he has changed.

[35] Mr. Arashvand was found guilty of assault in June 2008 and received a conditional discharge with 12 months of probation. Accordingly, he was on probation at the time of Mr. Garakan's murder.

[36] Further, at the time of Mr. Garakan's murder, Mr. Arashvand was bound by three separate recognizances of bail. Two of the recognizances imposed nightly curfews. One additionally prohibited him from possessing weapons.

[37] Since his arrest, he has been found guilty or convicted of other offences. While these offences do not constitute a prior criminal record, their commission and the timing of their commission is relevant to the issue of his character. On June 5th, 2009, he was found guilty of breaching an undertaking by drinking alcohol on March 4th, 2008. He received an absolute discharge. In March 2011, he was convicted of assault committed in jail in January 2010. He was sentenced to 90 days in jail. The assault was on a protective custody inmate, and involved punching and kicking the victim.

[38] Additionally, Mr. Arashvand has engaged in assaultive activity on six occasions while in jail awaiting the outcome of his murder trial. That activity has resulted in six findings of misconduct, as follows:

January 10th, 2009 – assault on another inmate;

February 28th, 2009 – assault, along with four other inmates, on another inmate;

May 23rd, 2009 – fighting with another inmate;

September 21st, 2009 – assault, along with another inmate, on an inmate;

December 25th, 2011 – assault, with a group of inmates, on another inmate;

May 1st, 2012 – assault on another inmate.

[39] These misconducts attracted increasingly harsher institutional penalties.

[40] I have ignored the opinions expressed in the pre-sentence report by correctional managers, with which Ms. Wyszomierska took issue.

The Recommendation of the Jury

[41] The recommendation of the jury was divided. One juror made no recommendation, two jurors recommended fifteen years before parole eligibility, three jurors recommended twenty years before parole eligibility, and six jurors recommended twenty-five years before parole eligibility.

[42] I bear in mind the observation of the Ontario Court of Appeal in R. v. Chalmers, 2009 ONCA 268, at paragraph 115, that jury recommendations are just that: they are recommendations and need not be slavishly followed.

Analysis

[43] This case is replete with aggravating factors, and little that can be said in mitigation of sentence.

[44] While all murder is, by definition, brutal, the killing of Mr. Garakan involved the infliction of excessive and gratuitous violence. It was the product of a group attack on a victim who was vulnerable because he was unarmed and lacked the means to ward off his assailants. Mr. Arashvand was armed with a knife or knives. Such group activity is anathema to civilized society. It must be denounced and deterred.

[45] Particularly aggravating aspects of the offence are the transport of Mr. Garakan's body to a remote area to which neither he nor his assailants had a connection, and the desecration and abandonment of his body there: see R. v. McLeod, 177 O.A.C. 385 (Ont.C.A.). It is evident that Mr. Arashvand, along with the other offenders, intended that Mr. Garakan's body would never be found because it would be incinerated, or, if found it would be unidentifiable for all time. This was notwithstanding that Mr. Garakan was the father of a young woman who was a friend to all of the offenders.

[46] Mr. Arashvand's after-the-fact conduct is significant: see R. v. Dahr, 2012 ONCA 433. After participating in the disposal of Mr. Garakan's body, Mr. Arashvand was deeply involved in the extensive efforts to cover up the murder and destroy evidence, including the clean-up of the car at AutoRun, and the discarding of items en route to Mr. Khastou's condominium. Such extensive cover-up activity is a significant aggravating factor: see R. v. Sodhi, 179 C.C.C. (3d) 60 (Ont.C.A.). Even as he engaged in that activity, Mr. Arashvand smoked cigarettes that were obtained from the deceased. When it soon became apparent that the police were on the trail of all three offenders, Mr. Arashvand fled the province and went to western Canada. He returned and hid out at the Juhas home. He turned himself in to the police only once Mr. and Mrs. Juhas learned that he was wanted from a television news story, and confronted him with that knowledge.

[47] Mr. Arashvand's lifestyle at the time of the offence was one of instability: no permanent address, limited contact with his family, no job, and involvement in drug dealing. It cannot be said that he was a contributing member of society. Far from it. He demonstrated his disregard for court orders, in that his activities on the night of November 6th violated in important ways the multiple orders, including a probation order, by which he was bound. This is a highly aggravating factor.

[48] It is mitigating that Mr. Arashvand was and is a relatively young man, and his previous criminal record is minimal. He has demonstrated, however, a propensity to engage in acts of violence even while in jail awaiting the outcome of his trial for murder. It is concerning that in his remarks to me at the end of the sentencing hearing, he sought to justify his actions, stating that when "they" put him in jail, "they" did not put him in church.

[49] Mr. Arashvand is fortunate to have the emotional support of his own family and that of Ms. Juhas and her parents. I accept that they are sincere in their support, but their contact with him has been limited. I am unable to agree with the assertion that he has changed while in jail. It is contradicted by his institutional record. I do not say that Mr. Arashvand has no rehabilitative potential, given his age and his family support, but I am unable to conclude that his rehabilitation is already underway. Rehabilitative progress will be for the Parole Board to assess at the appropriate time.

[50] It is not an aggravating factor that Mr. Arashvand pleaded not guilty and had a trial. However, he cannot benefit from the mitigation that flows from a plea of guilty and the expression of remorse it carries.

[51] I have considered the character of Mr. Arashvand, the nature of the offence, the circumstances surrounding its commission, and the recommendation of the jury. I have reviewed and considered the case law provided by Crown and defence counsel in their respective books of authorities. The aggravating features to which I have referred reflect the seriousness of Mr. Arashvand's offence, and a high degree of responsibility and moral culpability. A significant increase in the parole ineligibility period is warranted, but I have concluded that the period of 20 years sought by Crown counsel is excessive.

CONCLUSION

[52] Mr. Arashvand, please stand. I sentence you to life imprisonment without parole eligibility for 15 years.

[53] I order you to provide bodily fluid samples for DNA analysis. The appropriate section 109 weapons prohibition order is under section 109(2)(a) and (b) for life. I make the non-communication order sought by Crown counsel. You will not communicate directly or indirectly with the following persons: Brianna Adams-Chin, Sherman Afshar-Taromi, Azez Al-Kazragy, Zaid Alfraih, Amin Anvari, Lucy Arruda, Susan Bahmani, Zara Bahmani, Adina Capota, Alexis Chuck, Hamid Fazli, Noeen Fazli, Wayne Flieler, Zuber Gagnat, Abas Ghodsian, Natasha Gorgan, Hessom Hojjatian, Ahmad Jaafay, Hossain Zaker Jafery, Padedah 'Niki' Jezan, Shahin Kara, Ali Karimi, Ghanarai Khastou, Abdul Hannan (Anan) Majroh, Chris Mason, Farhad Masoomi, Paul Oldford, Dan Orsatti, Ali Qasem Zada, Asef Qasem Zada, Abas Rahimi, Behnaz Rasi Ershadi, Reza Seydjou, Ehsan Sharifi, Doug Smith, Shaheen Tahririha, Ian Wilson, April Yu, Nilfar 'Nilo' Zalmai, Payam Khastou and Mohammad Al-Kazragy. The list of named persons will be attached to the warrant of committal.

[54] The warrant of committal will be endorsed to reflect that Mr. Arashvand's life sentence began to run on the date of his arrest, November 25th, 2008, and that while in custody awaiting trial he served a 90 day jail term imposed on March 10th, 2011.

Transcript Order Received: October 18, 2012

Transcript Completed: October 11, 2012

Transcript Approved for Release: October 24, 2012

Ordering Party Notified: October 25, 2012