ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 897/11
DATE: 2013-03-08

B E T W E E N:

HER MAJESTY THE QUEEN

C. Valarezo, for the Crown

• and -

Deodat GAJRAJ

S. Wilson, for the Defendant

Defendant

HEARD: March 5, 2013

REASONS FOR SENTENCE

Ricchetti, J.

OVERVIEW

1On December 17, 2012, a jury found Mr. Gajraj guilty of aggravated assault with a weapon on Mr. Thaher on September 4, 2009. The only real issue at trial was whether Mr. Gajraj intended to stab Mr. Thaher.

2The matter comes before me today for sentencing.

THE FACTS

3Mr. Gajraj was 20 years old at the time of the events.

4Both men had been drinking prior to the incident. However, neither was drunk.

5During a telephone call and some yelling at each other, Mr. Thaher and Mr. Gajraj agreed to meet at a local high school to fight. They met. The fight started. It was to have been a fist fight and it proceeded that way for awhile.

6During the course of the fight, Mr. Gajraj pulled a knife from his pocket. He waived the knife around. The knife cut Mr. Thaher on his hand and Mr. Thaher was stabbed in his abdomen. While disputed at trial, I am satisfied the evidence established beyond a reasonable doubt that the knife was withdrawn by Mr. Gajraj from his back pocket, pulled out, waived in front of Mr. Thaher and eventually used to stab Mr. Thaher.

7Mr. Thaher’s wound in his hand was a very deep cut requiring stitches.

8Mr. Thaher’s wound to his abdomen was very serious. It penetrated his costal margin to his ribs and cut his diaphragm. It was described as his inner gut material protruding through the wound.

9The medical evidence established that the knife was twisted while in the abdomen. However, I am not persuaded that the evidence establishes beyond a reasonable doubt that this twisting of the knife was intentional by Mr. Gajraj to inflict more harm on Mr. Thaher or unfortunately occurred during the struggle between the two persons. Regardless, the injury was exacerbated.

10Mr. Thaher required stitches to his hand and to his abdomen. A drain tube form his abdomen was required for a day.

Circumstances of the offender

11Mr. Gajraj is a first time offender. He is single.

12He was born in Guyana and arrived in Canada in November 2006 with his mother and brother. He lives in Canada with his mother and brother. Both his mother and brother are supportive or Mr. Gajraj. His mother has been present during the trial. Mr. Gajraj also has the support of some friends who provided letters of support to the court.

13Up until his arrest, Mr. Gajraj was employed as a machine operator and was described by his employer as being responsible and reliable.

14Mr. Gajraj financially contributed to his mother's support and the acquisition of the mother's home.

15Prior to his arrest, Mr. Gajraj had also attempted to upgrade his language skills.

16The Pre-Sentence Report was extremely positive.

17Subsequent to this offence and while on bail for this offence, Mr. Gajraj was involved in another incident where he eventually pleaded guilty to accessory after the fact manslaughter and received three years. I raise this as it becomes significant to the credit for pre-sentence custody.

18Both counsel agree that Mr. Gajraj has 53 days of pre-sentence custody as of March 5, 2013.

Impact on the Victim and/or Community

19A victim impact statement was filed by Mr. Thaher’s parents. This incident has had a significant impact on their son’s life.

20Mr. Thaher has subsequently suffered some medical or psychological issues, which his parents attribute to this incident. However, the evidence does not establish beyond a reasonable doubt that Mr. Thaher’s subsequent condition arose due to the incident.

LEGAL PARAMETERS

21Pursuant to s. 268(2), a person convicted of aggravated assault may be sentence up to 14 years imprisonment.

POSITIONS OF CROWN AND DEFENCE

22The Crown submits the appropriate range is a period of incarceration of 2-3 years less pre-sentence custody.

23The Defence submits that an appropriate range of sentence is 1-2 years less a day.

24The Crown also seeks a DNA order and a S.109 lifetime ban on weapons. The Defence does not oppose these ancillary orders.

CASE LAW

25A thorough review of sentences for aggravated assaults with a knife during a consensual fight was done by Justice Code in R. v. Tourville, 2011 ONSC 1677:

27The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

28In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, 2006 9709 (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), 2003 15531 (ON CA), 175 C.C.C. (3d) 440 (Ont. C.A.).

29All three of the above cases were arguably worse offences or worse offenders than the case at bar. In Chickekoo, supra, the Aboriginal accused came from a similar background to Mr. Tourville but had a prior criminal record, including a conviction for assault. She caused “severe, life-threatening and permanently disfiguring” injuries to the head and face of the victim as a result of assaults with a broken beer bottle during a fight. In Moreira, supra, the accused was the aggressor who followed the victim on a public street in Toronto, provoking a consent fight. During the fight, the accused pulled out a knife and slashed the victim. He was in possession of the concealed knife for the dangerous purpose of using it in a fight and he was convicted of these further possessory offences, in addition to aggravated assault. He was a nineteen year old first offender at the time of the offences but had gone on to commit a number of further offences while on bail for which he received jail sentences. In Basilio, supra, as in Moreira, the accused was convicted of being in unlawful possession of a knife for a dangerous purpose, in addition to aggravated assault as a result of using the knife in a fight outside a bar. He stabbed the victim from behind, causing “life-threatening injuries” to the chest, diaphragm and liver. The accused did not retreat from the fight but swaggered about afterwards waving the knife. It should be noted that the Court of Appeal described the two years less a day sentence in Basilio as “lenient” and the eighteen month sentence in Chickekooas “the lower end” of the appropriate range.

30At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson (2005), 2005 23678 (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A).

26In the circumstances of Tourville, supra including the fact the accused was aboriginal, Justice Code sentenced the accused to 21 months incarceration.

27In R. v. Haly, 2012 ONSC 2302, Justice MacDonnell sentenced the accused to 36 months for an unprovoked attack with a knife.

28In R. v. Charles, 2011 ONSC 3034, Justice Allen sentenced the accused to 18 months for a violent, unexpected knife attack.

29As can be seen from the cases, the range is very broad for these types of offences and where a fit sentence falls within this range is highly dependent on all the circumstances.

MITIGATING AND AGGRAVATING FACTORS

30The following are the aggravating factors;

a) The use of a weapon in a consensual fist fight;

b) The fight took place on a high school property late at night; and

c) The severity of the wound to Mr. Thaher.

31The following mitigating factors are applicable:

a) No prior record;

b) Mr. Gajraj is youthful;

c) He has a supportive family and friends;

d) Up until this incident, Mr. Gajraj appeared to be a productive member of society with full time employment and seeking educational upgrading;

e) The incident initially started as a consensual fight; and

f) Mr. Gajraj is remorseful for the injury he caused Mr. Thaher with the knife.

PRINCIPLES OF SENTENCING

32Section 718 of the Criminal Code sets out the purpose and principles of sentencing. It provides:

The fundamental purpose of sentencing is 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;

(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 and to the community.

33Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

34How the above principles of sentencing are to be applied was described by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6 at paras. 42 and 43:

For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused (R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, 1985 81 (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicial and social censure (J. V. Roberts and D. P. Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense of Sentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v. Hamilton, (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.)). No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences. The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law.

35In this case, there is no issue that denunciation and deterrence are the primary sentencing principles.

36Mr. Gajraj’s young age and first time offender which attracts judicial restraint from imposing a lengthy period of incarceration, particularly, where there is a real prospect of rehabilitation. However, it is necessary to keep in mind that, in this case, Mr. Gajraj has already served a 3 year sentence.

REASONS

37In my view, the range of sentences in circumstances, where a stabbing occurs during a consensual fist fight, such as this, is in the range of 18 months to 2 ½ years and perhaps as high as 3 years. The Court of Appeal's comments in Basilios and Chickakooas, supra suggest a somewhat higher range than set out in Tourville.

38Weapons are a serious issue in today's society. A fit sentence should clearly denounce any use of weapons and deter others from using weapons.

39Taking into account the circumstances above, I am not persuaded that Mr. Gajraj is at either end of the range. Given that this was a consensual fist fight with a number of friends around. There had been some prior drinking by both Mr. Thaher and Mr. Gajraj leading up to the fight. It went horribly wrong when Mr. Gajraj, for reasons known only to him, pulled this knife out. Mr. Gajraj swung the knife around and eventually stabbed Mr. Thaher. The crowd, including Mr. Gajraj, dispersed quickly.

40The fight initially was only using fists. However, it went horribly wrong when Mr. Gajraj pulled out the knife. Unlike many cases, there was no prior stalking, no seeking to provoke a fight, no continued viciousness to use the knife repeatedly and cause further harm. Nevertheless, this was a very serious crime of violence by Mr. Gajraj to pull out and use the knife on Mr. Thaher.

41The Defence submits that Mr. Gajraj's deportation is a factor to be considered. The Defence advises that Mr. Gajraj has received a deportation order based on the conviction and sentence in the accessory after the fact manslaughter charge. Defence counsel advises that Mr. Gajraj will not oppose the deportation order. I am not persuaded that Mr. Gajraj should receive a reduced sentence simply because he will be deported upon serving the sentence. Recent Court of Appeal decisions make it clear that the sentence imposed should be within the appropriate range given the circumstances. I am not persuaded that Mr. Gajraj's deportation as a result of the other conviction is a factor in this case.

42In my view, 2 years less a day is a fit sentence in these circumstances.

43The Defence seeks pre-sentence custody credit in the amount of 53 (now 55) days times two. In other words, a two for one credit for time served. This charge was laid before the Truth in Sentencing Act came into force. As a result, I agree that two for one is potentially available to Mr. Gajraj without consideration to the restrictions set out in the Truth in Sentencing Act.

44But the two for one credit is not automatically applied just before the charge preceded the Truth in Sentencing Act.

45A very useful description of how pre-sentence custody was dealt with pre- Truth in Sentencing Act was described in R. v. Rezaie, 1996 1241 (ON CA), [1996] O.J. No. 4468 (Ont. C.A.), where Laskin J.A. wrote at paras. 24 through 26 that:

24. Section 721(3) of the Criminal Code provides:

In determining the sentence to be imposed on a person convicted of an offence, a justice, provincial court judge or judge may take into account any time spent in custody by the person as a result of the offence.

25. Although this section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody awaiting trial. For these reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, in deciding on an appropriate sentence, frequently give credit for double the time an accused has served.

26 Still, this court and other provincial appellate courts have rejected a mathematical formula for crediting pre-trial custody, instead insisting that the amount of time to be credited should be determined on a case by case basis ...

(emphasis added)

46While many of the reasons for enhanced credit continue to exist, Mr. Gajraj now remains in custody after January 11, 2013 (the date when his incarceration on the accessory after the fact manslaughter sentence was served) but he now finds himself, not an accused prior to trial serving time, but rather having been found guilty of the offence in December 2012. Equally important, Mr. Gajraj had received bail on these charges and only came to be re-arrested on the accessory after the fact manslaughter charges. But for his conviction and serving of his sentence on the manslaughter charges, he would not have been in custody pending sentencing. These are relevant factors to consider in determining the pre-sentence custody credit. See R. v. Codner, 2013 ONCA 138

47In these circumstances, and where the Defence has not provided any other evidence for enhanced credit, I exercise my discretion and award Mr. Gajraj 1.5 credit for the 55 days. The credit would be approximately 83 days.

ANCILLARY ORDERS

48There shall be a DNA order under s. 487.04 of the Criminal Code.

49There shall be a lifetime firearm prohibition under s. 109 of the Criminal Code.

FINAL DECISION

50Mr. Gajraj is sentenced as follows:

a) After receiving credit for pre-sentence custody: 21 months;

b) A DNA order;

c) A lifetime weapon prohibition order; and

d) Probation for two years upon his release on the statutory conditions and that Mr. Gajraj refrain from any contact with Mr. Thaher or his family or attending within 200 meters of their home.

L. Ricchetti J.