ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20130607

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARKO PANDUREVIC

Glen Crisp and Emma Haydon, for the Crown

John Rosen, for Marko Pandurevic

HEARD: May 31, 2013

Reasons for Sentence

MacDonnell, J.

[1] Mr. Pandurevic stood trial before this court on an indictment charging him with first degree murder. On May 17, 2013, the jury found him guilty of second degree murder. He is before the court today for sentencing.

[2] Pursuant to s. 235(1) and s. 745(c) of the Criminal Code, the sentence to be pronounced on a person convicted of second degree murder is a term of imprisonment for life without eligibility for parole until the person has served at least 10 years of the sentence. Pursuant to s. 745.4, however, the sentencing judge “may” increase the period of parole ineligibility from 10 years up to a maximum of 25 years, having regard to the nature of the offence and the circumstances surrounding its commission, the character of the offender, and the recommendation, if any, of the jury. With respect to the exercise of that discretion, Justice Iacobucci stated as follows in R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at paragraph 27:

[As] a general rule, the period of parole ineligibility should be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in [s. 745.4], the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be ‘unusual’, although in the median number of cases, a period of 10 years might still be awarded.

A. The Statutory Criteria

(a) the character of the offender

[3] I will first address the evidence in relation to the character of the offender.

[4] At the time of the offence, Mr. Pandurevic was 22 years of age. He was born in Bosnia, and was the only child of his parents. His father was killed by a sniper, in the presence of Mr. Pandurevic, in the war that ravaged the former Yugoslavia in the early 1990s. He and his mother came to Canada in 1994 as refugees. They initially settled in Sherbrooke, Quebec, but in 1996 or 1997 they moved to Toronto. Upon arrival in Toronto, Mr. Pandurevic’s mother upgraded her training and in 2000 she began working as a nurse at the East York General Hospital, where she is still employed. Mr. Pandurevic completed high school in Toronto, and at the time of the offence he was a full-time student in the Hospitality Management course at Centennial College. Prior to the offence, he had lived with his mother his entire life.

[5] Prior to his conviction in the case at bar, Mr. Pandurevic had never been convicted of a criminal offence. He was charged with assault causing bodily harm in 2007, when he was 19 years of age, but that matter was resolved by way of a peace bond without a finding of guilt. Arising out of that same matter he pleaded guilty to breaching an undertaking and was given an absolute discharge. Apart from whatever inference may be drawn from those matters, there is nothing to indicate that before the commission of the offence before the court he had ever exhibited antisocial behavior or tendencies. Indeed, the letters that have been presented attesting to his character are to the opposite effect. Some of those letters are from persons who would have a natural and understandable bias – his mother, his grandparents and other relatives – but their opinions are confirmed by those of others, who are not related to him. Adjectives such as “good”, “kind”, “gentle”, “caring”, “loving”, “respectful’ and “courteous” abound in those letters. The close bond between Mr. Pandurevic and his mother became obvious in the course of this trial, as did the deep concern each has for the welfare of the other.

[6] Many of the letters also describe the remorse that Mr. Pandurevic has expressed for his involvement in the death of Dmitry Savenkov. When given the opportunity to address the court in the course of the sentencing proceedings, Mr. Pandurevic stated that he was deeply sorry for what happened. I accept that his remorse is genuine.

(b) the nature of the offence and the circumstances surrounding it

[7] In considering whether to increase the period of parole ineligibility, I am also required to take into account the nature of the offence and the circumstances surrounding it.

[8] Both Mr. Pandurevic and the deceased, Dmitry Savenkov, had been residents of 12 St. Dennis Drive for a number of years. The deceased lived with his mother on the 9th floor; Mr. Pandurevic lived with his mother on the 6th floor. For reasons that, in my opinion, are unknown, there was hostility between them.

[9] At about 11:45 a.m. on July 31, 2010, Mr. Savenkov got onto the elevator on the 9th floor and headed down to the lobby. He was planning to meet his girlfriend, with whom he intended to spend the day. A teenaged girl, Adriana Lackova, was also on the elevator, on her way to take her small dog for a walk. Mr. Savenkov had his car keys in one hand and the face plate for his car stereo in the other. He was unarmed. He clearly was not anticipating trouble.

[10] Mr. Pandurevic was in the elevator lobby, waiting. What he was waiting for was a matter of dispute at the trial. He testified that he was waiting for his grandfather to come down so that he could take him shopping. The Crown alleged that he was waiting for the deceased. In his pocket, he was carrying a paring knife with a 9 cm long blade. He had been carrying that knife for a month or more in anticipation of an encounter with Mr. Savenkov.

[11] When the elevator arrived on the main floor, Mr. Savenkov allowed Ms. Lackova and her dog to exit first. He then began to move toward the door, but before he could cross the threshold Mr. Pandurevic charged into the elevator and took hold of him. It is obvious from the video images that Mr. Savenkov was taken completely by surprise. Mr. Pandurevic did not have the knife or any other weapon in his hands at the outset of the altercation, but within seconds, after Mr. Savenkov began to defend himself, he reached into his pocket and produced it. Mr. Savenkov immediately began to back away, out of the elevator, but he was unable to escape because Mr. Pandurevic had a firm grip on his shirt. Mr. Pandurevic pursued Mr. Savenkov with the knife as he attempted to retreat. The altercation spilled into the elevator lobby and continued for perhaps another 30 seconds. Throughout, Mr. Pandurevic maintained his grip on Mr. Savenkov’s shirt, repeatedly swinging the hand holding the knife at him. One or more of the blows he struck broke Mr. Savenkov’s jaw in three places. Finally, Mr. Savenkov was able to break free and he ran out of the building. He paused briefly outside the doors before proceeding toward the parking lot where he collapsed. He died a short while later.

[12] In addition to the broken jaw, Mr. Savenkov had suffered multiple superficial sharp force injuries to his right hand and arm and to his face. The pathologist characterized the sharp force injures to the arm and hand as defensive wounds. Mr. Savenkov also had two significant stab wounds to his torso. One of them, to his lower abdomen, would not have been life threatening, but the other, to the left side of his chest, a few inches below the armpit, extended 11 cm into his body, piercing his heart and causing bleeding that quite rapidly caused his death. He had also suffered a large number of blunt force injuries. Mr. Pandurevic had managed to cut himself as well, on the inner aspect of his left arm. This was a fairly serious laceration, which required a number of sutures. He did not appear to have suffered any other significant injury.

[13] Mr. Pandurevic did not pursue the deceased out of the building. Rather, he proceeded up the stairwell to his apartment on the 6th floor. En route, he dropped the knife into the 3rd floor garbage chute. When he got to his apartment, he bound up his wound and left to seek medical attention. He never returned to 12 St. Dennis Drive. After receiving treatment at a hospital, he spoke to his mother on the telephone. She told him to come to his aunt’s home, where she met with him. The two of them then headed for the airport and they flew to Bosnia that very day with nothing more than the clothes on their backs. Mr. Pandurevic remained in Bosnia for six months before returning to Canada and surrendering to the police.

[14] Mr. Pandurevic was charged with first degree murder on the theory that the killing of the deceased was planned and deliberate. The Crown alleged that prior to July 31, 2010, Mr. Pandurevic had determined that if the opportunity arose he would kill Mr. Savenkov and that he began carrying the knife for that purpose. The Crown went to the jury on the basis that on the morning of July 31, as he watched the elevator descend from the 9th floor, Mr. Pandurevic decided that if Mr. Savenkov were on that elevator, he was going to put his plan to kill him into action. In finding Mr. Pandurevic not guilty of first degree murder, the jury rejected that theory. While the jury was satisfied that at the time he inflicted the fatal blows Mr. Pandurevic meant to kill Mr. Savenkov or to cause him harm that he knew was likely to kill him, the jury was not satisfied that he formed that intent prior to the commencement of the altercation.

[15] What triggered Mr. Pandurevic’s sudden attack on the deceased was very much in dispute at trial. Mr. Pandurevic’s evidence was that he had been subjected to abusive, assaultive and threatening conduct by Mr. Savenkov for a period of months, and that he had begun to carry a knife as a tool of intimidation should the deceased attempt to assault him. He testified that on the morning of July 31, as he waited in the elevator lobby for his grandfather, the deceased unexpectedly arrived. He testified that the deceased called him a goof, which caused him to snap, triggering the fatal altercation. He testified that he only used the knife after he had been struck several times about the head and upper body and had begun to fear for his life.

[16] The jury was directed to consider the defence of self-defence and the partial defence of provocation. Their rejection of both defences does not necessarily imply a rejection of Mr. Pandurevic’s evidence concerning the background to the altercation, the comment that triggered it, and the absence of any prior plan to assault Mr. Savenkov. The defence continues to rely on those circumstances as mitigating facts surrounding the commission of the murder.

[17] Where, for the purpose of sentencing, the defence relies on facts that are in dispute, the burden is on the defence to establish those facts on a balance of probabilities. In my opinion, the defence has largely failed to do so. While I accept that there must have been prior conflict between Mr. Pandurevic and the deceased, I do not accept that Mr. Pandurevic is being truthful with respect to the nature of that conflict, and I do not believe his evidence with respect to the course of threatening conduct that he had been subjected to. The only admissible evidence supporting the existence of that course of conduct came from him. Mr. Savenkov, of course, cannot respond to those allegations. It is telling, however, that with respect to the two parts of the alleged course of threatening conduct for which there is independent evidence, the independent evidence contradicts Mr. Pandurevic.

[18] Mr. Pandurevic testified that on the evening before the altercation, at about 10:30 pm, he encountered Mr. Savenkov crossing the parking lot behind 12 St. Dennis Drive, and that Mr. Savenkov called him a goof and told him “you are going to get yours, fuckhead”. Mr. Pandurevic’s evidence in that respect was inconsistent with that of Raquel Sunga, who was also walking across the parking lot at the time, just ahead of Mr. Savenkov. As she walked toward the the building, she did not hear anyone having problems with anyone else. As she put it, “it was quiet that night”. I acknowledge that she was walking quickly, and that she just wanted to get home because she was tired, but she was also concerned about her safety in the darkened parking lot at that time of evening, and I am satisfied that if there had been the exchange between Mr. Pandurevic and Mr. Savenkov that Mr. Pandurevic described she would have both heard it and remembered it.

[19] The second part of the alleged course of threatening conduct that was contradicted by the independent evidence concerned what happened at the end of the altercation. Mr. Pandurevic testified that after Mr. Savenkov fled from the building, he stood outside the doors calling him outside to continue the fight, uttering threats to kill him. In my opinion, the combination of the video evidence, the medical evidence and common sense establishes that this did not happen. At the time he ran out the door, Mr. Savenkov was unarmed and he had just managed to escape from a person who had shattered his jaw, knocked out some teeth and inflicted a number of stab wounds, including the one that within minutes would lead to his death. He was also beginning to bleed profusely. It is preposterous to think that having made it out of the building in that condition he would then have invited his armed assailant to continue the altercation.

[20] Mr. Pandurevic also testified that Mr. Savenkov had called him a goof as he began to walk out of the elevator, and that this caused him to snap. The Crown challenged that assertion. In support of their conflicting positions, both sides relied on the evidence of Adriana Lackova, albeit on different parts of her evidence. Ms. Lackova initially testified that the altercation began with Mr. Pandurevic screaming at Mr. Savenkov, and Mr. Savenkov responding “No, no”. In cross-examination, she changed that account to ‘one said something to the other, and the other one said something back and the fight started.’ Because of the contradictions in her evidence, I do not regard it as helpful. What is helpful, however, are the video images of Mr. Savenkov attempting to leave the elevator and of Mr. Pandure