Court File and Parties

COURT FILE NO.: CR-12-30000220-0000

DATE: 20130604

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

KASHIYANTHAN GUGARUBAN

Counsel: Melissa Mandel, for the Crown John Fitzmaurice, for the Accused

HEARD: June 4, 2013

GOLDSTEIN J.

REASONS FOR SENTENCE

OVERVIEW

[1] Mr. Gugaruban was convicted after a jury trial of one count of aggravated assault and one count of threatening damage. He comes before the Court today for sentencing.

THE FACTS

(a) Circumstances of the offence

[2] The victim, Kajan Jokanajakam, and the accused, Kashiyanthan Gugaruban, were very close friends. Mr. Gugaruban is married to Mr. Jokanajakam’s first cousin, Naseega. Naseega and Mr. Jokanajakam are, or were, very close. They grew up together.

[3] Unfortunately, problems developed within the family. The source of the tension is unimportant for the purposes of this sentencing. Suffice it to say that family squabbles created tension between Mr. Jokanajakam and Mr. Gugaruban. On April 5, 2011 Mr. Jokanajakam was at work at his call centre job when those tensions escalated. After work, Mr. Jokanajakam went for a drive in his friend’s van with his sister, Maynaka Jokanajakam, and his 16 year old cousin, Jeevathin Varatharajan. They were initially going to a car dealership. They decided to just hang around instead. According to Mr. Jokanajakam, they called Naseega, seeking to clarify some of the rumours that were the source of the tension. According to Naseega, the call was more threatening than a mere call for clarification. It is not necessary to resolve the nature of the call, and subsequent telephone calls. The key point is that Mr. Gugaruban apparently became quite upset over the calls and decided to discuss the calls with Mr. Jokanajakam. They agreed to meet in the parking lot of 55 Nugget Avenue in Scarborough, which is where Mr. Jokanajakam’s workplace was located.

[4] According to Mr. Jokanajakam’s evidence, when they met in the parking lot Mr. Gugaruban got out of his car with a pipe of some kind, threatened to smash the van, and forced him out of the car. He punched Mr. Jokanajakam in the face, and then continued to kick him while he was on the ground. Jeevathin and Naseega both confirmed the main points of Mr. Jokanajakam’s testimony, although there were certainly differences among them in terms of the order in which the events occurred. The key points of their evidence are that:

• Mr. Gugaruban had a weapon, which was a metal rod or a pipe of some kind;

• Mr. Gugaruban did not use the weapon in the assault;

• The assault by Mr. Gugaruban was unprovoked;

• Mr. Jokanajakam did not take a swing at Mr. Gugaruban;

• Jeevathan did not attack Mr. Gugaruban or otherwise intervene except to “cool him down”;

• The assault by Mr. Gugaruban consisted of a punch to Mr. Jokanajakam’s face, punches to the stomach, and kicking while he was on the ground.

[5] Mr. Gugaruban’s evidence was different. He testified as follows:

• When he got out of his car, Jeevathan intervened and grabbed him;

• Mr. Jokanajakam took a swing at him and missed;

• Mr. Gugaruban swung at Mr. Jokanajakam in self-defence and connected with one punch to the face;

• He did not continue to punch or kick Mr. Jokanajakam while he was on the ground.

[6] The jury ultimately convicted Mr. Gugaruban of one count of aggravated assault and one count of threatening damage to property, in this case the van containing Mr. Jokanajakam, his sister, and his cousin. The jury acquitted Mr. Gugaruban of all other offences, including the offence of assault with a weapon. They clearly did not accept that the assault involved a weapon of some kind.

[7] Mr. Jokanajakam was seriously injured by the punch. His orbital bone was broken and he required surgery. Fortunately, he has since recovered.

[8] A sentencing judge is bound by the express and implied factual implications of a jury’s verdict. Where the factual implications of the verdict are ambiguous, the trial judge must come to an independent determination of the relevant facts: R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96.

[9] In my charge, I told the jury that they needed to consider the following three questions in relation to self-defence:

• Was Mr. Gugaruban unlawfully assaulted?

• Did Mr. Gugaruban use force to defend himself from what he reasonably believed was an unlawful assault?

• Did Mr. Gugaruban use more force than was necessary to prevent what he reasonably believed was an unlawful assault?

[10] It is acceptable for jurors to come to the same conclusion by different means, as long as there is unanimity on the verdict itself. In this case, there were three different routes by which the jury may have decided that self-defence was not available to Mr. Gugaruban.

• They may have determined that Mr. Gugaruban was not unlawfully assaulted and, therefore, that self-defence simply did not apply;

• They may have determined that Mr. Gugaruban did not reasonably believe that he was unlawfully assaulted;

• They may have determined that Mr. Gugaruban reasonably believed that he was unlawfully assaulted but used more force than was necessary in defending himself.

[11] I find that Mr. Gugaruban reasonably believed he was under assault but that he used more force than was necessary or reasonable under the circumstances. I make this finding for the following reasons:

• Although I accept that Mr. Jokanajakam and Jeevathan did not intend to attack Mr. Gugaruban in the parking lot, I also do not believe that they were completely innocent in instigating the incident. I believe that tempers were flaring on both sides, although I do not believe that they intended an assault on Mr. Gugaruban. I do not accept that they were spoiling for a fight. The evidence suggests that the incident simply went much further than they intended, and made Mr. Gugaruban much angrier than they expected.

• I find that Mr. Gugaruban was extremely angry and intended to confront Mr. Jokanajakam. When he got out of the car and went towards the van, Jeevathan got out. Jeevathan is a martial artist. Although I do not accept that Mr. Jokanajakam threw the first punch, and I do not agree that Jeevathan was about to attack, I do accept that Mr. Gugaruban feared that he was about to become involved in a fight with two people. Hence, he struck first. Was that belief reasonable? The test for a jury is simultaneously objective and subjective: R. v. Charlebois, 2000 SCC 53, [2000] 2 S.C.R. 674. On sentencing, I need not resolve the issue except to draw the appropriate factual inferences. Although it is close to the line, I find that the presence of two people during a heated situation made that belief objectively reasonable.

• I find that Mr. Gugaruban used more force than was necessary or reasonable. He admitted as much when he testified before the jury, when he indicated that he did not intend to injure Mr. Jokanajakam as much as he did. Furthermore, Mr. Jokanajakam testified that his body was sore from being kicked and punched, aside from the punch to his face. I accept this evidence. I do not accept Mr. Gugaruban’s evidence on this point, although I draw the inference that Mr. Gugaruban was so angry that he likely did not fully perceive how far the assault went.

[12] I note that the jury either rejected the evidence of Mr. Jokanajakam, Jeevathin, and Maynaka with regard to the weapon, or found that Mr. Gugaruban simply did not use it in the assault. My finding is that Mr. Gugaruban simply did not use the weapon. The only reason I mention this finding, is because if the jury had rejected the evidence regarding the weapon, it would have told us something about their view of the credibility of Mr. Jokanajakam and the other witnesses. It is not, however necessary to resolve this issue for the purposes of sentencing.

(b) Circumstances of the offender

[13] Mr. Gugaruban is 23 years old. He is married. At the time of the offence he was 21 years old. He has no criminal record. He is a licenced automobile mechanic and emissions inspector. After graduating from Woburn Collegiate in Scarborough, he studied his trade at Centennial College. He has worked steadily before and after graduation from Centennial as a security guard, a children’s entertainer, and of course in his profession of auto mechanics. He is currently a supervisor at New Midwest Auto Collision where he has been working since June 2010.

[14] I have reviewed the many letters attesting to Mr. Gugaruban’s good character, hard work, and family values that have been filed. I am impressed with the level of support that he has in the community.

[15] Mr. Gugaruban provided a letter to the Court. In the letter, he expresses regret over the incident that led to his convictions. He states that he did not actually mean to harm Mr. Jokanajakam. He basically states that the incident got out of control. He indicated that he wants to man up and apologize to him and heal the rift within the family but that he cannot because his bail condition requires him to stay away from Mr. Jokanajakam. He also acknowledges that Mr. Jokanajakam might not want to see him. He says that he deeply regrets that this incident has destroyed their friendship. He says that he has reflected on the two years that have passed since the incident, and has had time to think carefully and regret what has happened. He acknowledges that he has a problem with anger and that he let it take control of his life. He has taken a course on anger management and has successfully completed it.

(c) Impact on the victim and the community

[16] Aggravated assault is an offence punishable by up to fourteen years in prison, which means it is an offence that Parliament considers to be a serious offence but in the second tier of seriousness, below offences where the maximum penalty is life imprisonment. Where an offender commits an aggravated assault, the social consequences are significant because it is a serious breach of the peace involving significant personal injury.

[17] In this case, Mr. Jokanajakam, suffered serious injuries to his orbital bone and required surgery. Fortunately, he has recovered.

[18] Mr. Jokanajakam did not provide a victim impact statement. Instead, he provided a letter to the Court. In that letter he indicated that he, in turn, wishes to speak to Mr. Gugaruban and heal their rift. He indicates that he hopes that the Court will give Mr. Gugaruban a chance to turn his life around and not punish him further. He understands that Mr. Gugaruban has a dream of opening his own auto service centre and wants to see him achieve that dream.

LEGAL PARAMETERS

[19] Aggravated assault contrary to s. 268 of the Criminal Code is a straight indictable offence that carries a maximum penalty of fourteen years. I note that a conditional sentence of imprisonment and a conditional discharge are sentences that are not available here.

[20] Mr. Gugaruban is a legal permanent resident of Canada. He has been living in this country since he was four years old. He has never taken out Canadian citizenship. As a result, he is now inadmissible to Canada because he has been convicted of an offence that carries a maximum punishment of at least ten years: see Immigration and Refugee Protection Act, s. 36(1). Mr. Fitzmaurice informed the Court that after consulting with immigration counsel, it is his information that where a permanent resident receives a sentence of less than six months, they are more likely to be permitted to stay in Canada on humanitarian and compassionate grounds. Mr. Fitzmaurice very fairly indicated that he could not positively attest to that fact, and that it is only based on the experience of immigration counsel, but felt he could draw it to my attention.

[21] I am aware that there is a complex process for determining whether removal orders can be stayed on humanitarian and compassionate grounds. I am prepared to give at least some weight to the information provided by Mr. Fitzmaurice.

[22] Threatening damage to property is a hybrid offence. Where prosecuted by way of indictment, the maximum penalty is two years.

POSITIONS OF THE CROWN AND DEFENCE

[23] Ms. Mandel, for the Crown, states that Mr. Gugaruban has been convicted by a jury of serious offences. She acknowledges, as does Mr. Fitzmaurice, that sentences for aggravated assault are literally all over the map. Ms. Mandel says that the appropriate range of sentence is 9 to 12 months in the reformatory. She acknowledges that Mr. Gugaruban falls at the lower end of the range but nonetheless states that the objectives of denunciation and deterrence still require a jail sentence.

[24] Mr. Fitzmaurice’s position is that the objectives of denunciation and deterrence can be achieved by sentencing Mr. Gugaruban to a period of incarceration of less than six months or even a non-custodial sentence.

[25] Although Mr. Fitzmaurice acknowledged that Mr. Gugaruban had a trial and therefore does not obtain the benefits that flow from a guilty plea, he takes the position that it is not as simple as that. He points out that the jury acquitted Mr. Gugaruban on important counts, including assault with a weapon and threatening death. This, he says, amounts to at least partial vindication and should be taken into account by the court in sentencing.

CASE LAW

[26] There is a broad range of sentences that have been imposed by the courts involving aggravated assault, which is obviously the more serious of the two offences.

[27] In R. v. Addley, 2012 ONSC 137, [2012] O.J. No. 25 (Sup.Ct.) the youthful first offender viciously attacked the victim in an unprovoked and “cowardly” assault. The trial judge found that he used “extreme violence”. The injuries were serious. The offender was one of three who took on the victim, leaving him on the street where he might have died had it not been for passersby who called for an ambulance. The sentence was 18 months followed by three years probation. The Court of Appeal upheld the sentence: 2013 ONCA 50, [2013] O.J. No. 337.

[28] In R. v. Dinney, 2012 ONCA 497, [2012] O.J. No. 3206 (C.A.) the Court of Appeal upheld a six-month sentence for assault causing bodily harm, which is a hybrid offence and carries a lower maximum sentence than aggravated assault. The offender sucker-punched the victim in the entertainment district of Hamilton during an after-hours altercation. The offender was youthful and had no criminal record.

[29] In R. v. MacDonald, 2010 ONCA 178, [2010] O.J. No. 912 (C.A.) the Court of Appeal upheld a sentence of 12 months incarceration and 12 months probation for an offender who threw a beer bottle in the complainant’s face. The Court did not consider the sentence unduly harsh and found that it was within the appropriate range.

[30] In R. v. H.A.P. (2010), 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont.C.A.) the offender was an aboriginal woman who pleaded guilty to assaulting the victim with a beer bottle during the course of a bar fight. The offender was 26 years old and had a youth record. A Gladue report showed a history of abuse, alcohol, and drugs. The sentencing judge imposed a suspended three-year sentence followed by probation. The Crown appealed. Blair J.A. (Feldman J.A. concurring) found that the trial judge gave sufficient weight to all of the principles of sentencing and that the sentence imposed was not manifestly unfit, particularly given the circumstances of aboriginal offenders. Watt J.A. dissented and would have interfered with the sentence.

[31] In R. v. Monchka, [2000] O.J. No. 1069 (C.A.), the Court of Appeal varied a sentence of 12 months’ imprisonment for a youthful first offender convicted of aggravated assault. The offence was out of character and he was very remorseful. He had already served 3 months of his sentence when the Court substituted a conditional sentence of 18 months followed by 9 months’ probation. I note that a conditional sentence is no longer available as a result of subsequent amendments to the Criminal Code.

[32] I conclude from this review of the cases that non-custodial or intermittent sentences are available for a first offender convicted of aggravated assault who has an otherwise unblemished record.

MITIGATING AND AGGRAVATING FACTORS

[33] The most important aggravating factor is that the assault was a violent one and caused significant injuries to Mr. Jokanajakam. The important mitigating factors are Mr. Gugaruban’s youth, his unblemished record, and his evident regret for the way that the incident escalated. His admission to the Court in his letter that it was his inability to control his anger that led to his conviction shows insight into his behaviour and is not inconsistent with his evidence at trial. I accept that it is a sincere admission of remorse, notwithstanding that Mr. Gugaruban did not plead guilty.

PRINCIPLES OF SENTENCING

[34] The purposes of sentencing are set out in s. 718 of the Criminal Code. The principles of sentencing that I have to apply are set out in ss. 718.1 and 718.2 of the Criminal Code:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or

(v) evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

ANCILLARY ORDERS

[35] Given that aggravated assault contrary to s. 268 of the Criminal Code is a primary designated offence, a DNA order under s. 487.051 is mandatory. A 10-year weapons ban under s. 109 of the Criminal Code is also mandatory. Those orders will follow.

FINAL DECISION

[36] I wish to be clear that Ms. Mandel took a very reasonable position on sentencing and that her suggestion of a range of 9 to 12 months in the reformatory is certainly not outside the appropriate range; that said, in my view the circumstances here require a departure from the range.

[37] In imposing sentence, I need to balance competing factors. On the one hand, Mr. Gugaruban has been convicted of a serious offence. Denunciation and deterrence require that there be some form of incarceration. We cannot tolerate fistfights based on misunderstandings and family feuds to determine our interpersonal relationships in a society governed by the rule of law. On the other hand, the principle of rehabilitation demands that the Court take into account the fact that Mr. Gugaruban has led an impeccable life up to this point and there is nothing to suggest that he has been anything other than a hard-working and productive member of society. The evidence before me suggests that he made a very serious mistake and committed a serious crime, but that he is not a habitual criminal. Punishment there must be, but in my view it is appropriate to craft a sentence that fulfills the goal of denunciation and deterrence but also permits Mr. Gugaruban to continue to work, save money towards his goal of starting his own auto service centre, and take care of his family. I have very carefully reviewed the following material:

• The professional qualifications amassed by Mr. Gugaruban in his field of auto mechanics;

• The many letters of support testifying to his character and his work ethic;

• The cases submitted setting out the range of sentence.

[38] I also take into account the letter from Kajan Jokanajakam. As noted, Mr. Jokanajakam indicates that he does not want Mr. Gugaruban punished, that he feels that he has been through enough, and that he wants to resume the family relationship and heal the breach. Although I acknowledge that the victim’s wishes are not determinative, the Court may certainly take them into account.

[39] In balancing these factors, I conclude that there is simply no social or policy goal that will be advanced by incarcerating Mr. Gugaruban for a lengthy period of time, taking him out of the work force, and jeopardizing his chances of remaining in Canada. In other words, although the Court needs to properly deal with the consequences of Mr. Gugaruban’s actions, we do not need to ruin his life. An intermittent sentence followed by probation will fulfill this goal. I am confident that, once Mr. Gugaruban puts this sentence behind him, he can resume his life as a productive member of society. In fact, the Court expects he will so so while serving his intermittent sentence.

[40] I am also cognizant of the fact that there may be immigration consequences to Mr. Gugaruban if he receives a sentence of more than six months. It is not inappropriate for the Court to consider the immigration consequences of a conviction as long as it is not used to circumvent the consequences of the Immigration and Refugee Protection Act: R. v. Hennessey, [2007] O.J. No. 3204 (C.A.). I am satisfied that taking the immigration consequences of this conviction into account would not do so. Mr. Gugaruban has apparently been in this country since the age of four and is here as a legal permanent resident, but for reasons that I do not understand has never taken out Canadian citizenship. This is unfortunate.

[41] I find that on the aggravated assault, a sentence of 90 days is appropriate. Mr. Gugaruban will be given credit for 25 days in custody at the ratio of 1:1. Accordingly, the sentence will be 65 days to be served intermittently on the weekends. Mr. Gugaruban will be placed on probation for one year after he has finished serving his intermittent sentence. Other than the usual statutory terms, there will be two additional terms on the probation order. Notwithstanding that he has already completed one course for anger management, Mr. Gugaruban is to continue to take counselling for anger management. During the term of the probation order, he is not to have contact with Kajan Jokanajakam except with the prior written permission of Kajan Jokanajakam. The terms of the probation order will be in force when not in confinement during the period that the intermittent sentence is running. As I have said, the probation order will continue for one year after he has completed the intermittent portion of his sentence.

[42] Mr. Gugaruban will be sentenced to 30 days on the threatening damage charge, also to be served intermittently; that sentence will be concurrent to the sentence on the aggravated assault charge.

R. F. Goldstein J.

Released: June 4, 2013

COURT FILE NO.: CR-12-30000220-0000

DATE: 20130604

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

KASHIYANTHAN GUGARUBAN

REASONS FOR JUDGMENT

R. F. Goldstein J.

Released: June 4, 2013