SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
MICHAEL ZAWISLAK
PROCEEDINGS AT PLEA HEARING
BEFORE THE HONOURABLE JUSTICE C.J. CONLAN
On Monday, December 2, 2013, at Owen Sound, Ontario
APPEARANCES:
M. Martin
Counsel for the Provincial Crown
G. Deakin
Counsel for Michael Zawislak
MONDAY, DECEMBER 2ND, 2013 (10:22 A.M.)
... SUBMISSIONS BY MR. MARTIN
... SUBMISSIONS BY MR. DEAKIN
Conlan, J. – Orally:
Introduction
THE COURT: Mr. Zawislak, you may remain seated throughout this sir. These are my oral reasons for sentence in the matter of Her Majesty the Queen v. Michael Steven Zawislak.
This morning at the Superior Court of Justice in Owen Sound Mr. Zawislak entered guilty pleas to counts two, three and five on Indictment number one, dated November 27, 2013.
In particular count two is that Mr. Zawislak on or about the 29th day of June, 2013, at Owen Sound, did in committing an assault upon Brian Ball cause bodily harm to Mr. Ball contrary to Section 267(b) of the Criminal Code of Canada. Count three, that Mr. Zawislak on or about the same date, at the same place did in committing an assault upon Mr. Ball use a weapon, specifically a butcher knife contrary to Section 267(a) of the Criminal Code of Canada. And count five that Mr. Zawislak on or about the same date, at the same place, although at the police station in Owen Sound, did assault Constable Daniels, a Peace Officer for the Owen Sound Police Services, contrary to Section 270(1) paragraph (a) of the Criminal Code of Canada.
Factual Background
The factual allegations very succinctly stated are as follows.
On June 29, 2013, Mr. Ball attended at the residence of Mr. Zawislak in Owen Sound. An argument ensued between the two men which turned into a physical confrontation between both of them. At some point Mr. Zawislak brandished a knife. During the physical confrontation Mr. Zawislak bit the facial area of Mr. Ball causing bodily harm to Mr. Ball as illustrated in the photographs marked an Exhibit on the plea and sentence. Mr. Zawislak swung and thrust the knife towards Mr. Ball repeatedly. Eventually and fortunately, the Owen Sound Police and emergency medical staff arrived. Mr. Zawislak was arrested. At some point during the arrest he uttered a threat against the police. He was transported to the Owen Sound Police station and while being lodged at the station he spat at Officer Daniels committing an assault on the police officer.
It is clear that Mr. Zawislak had consumed some alcohol prior to this incident. He was on an undertaking and a probation order at the time of the events. Mr. Ball was transported to the hospital and as I indicated earlier, certainly suffered bodily harm as a result of the attack by Mr. Zawislak.
Criminal History
There are some other Exhibits that have been filed on the plea and sentence, including Mr. Zawislak’s criminal history which is very extensive, particularly for someone who is still fairly youthful. The criminal history comprises about four and a half pages. The criminal history includes multiple prior convictions for crimes of violence including convictions for threats, assault related convictions, weapons related convictions. In addition to the multiple prior convictions for crimes of violence the criminal history for Mr. Zawislak includes numerous prior convictions for breaching court orders. The CPIC printout for Mr. Zawislak, simply put is replete with breaches of court orders and breaches of Officer in Charge undertakings.
Fortunately for Mr. Zawislak his time in custody thus far has been somewhat productive. He has achieved some certificates and has made some progress and I give Mr. Zawislak some credit for that.
Aggravating and Mitigating Factors
The aggravating factors in this case are first of all, the viciousness of the attack on Mr. Ball; the extensive and related criminal history of Mr. Zawislak; the involvement of a weapon, the knife.
The mitigating factors include, first; that Mr. Zawislak entered guilty pleas to these charges. Mr. Zawislak deserves some credit for that. The guilty pleas avoid the necessity of a trial and avoid in particular, the victim Mr. Ball from having to attend and testify. The guilty pleas are in and of themselves, expressions of remorse by Mr. Zawislak; and in addition to the guilty pleas Mr. Zawislak addressed the court today and indicated that he is sorry for his actions both vis-à-vis Mr. Ball at his residence, and in his dealings with the police at the time and after his arrest. In addition, it is somewhat mitigating that alcohol played some factor in the events. I say somewhat mitigating because it is an error in my view, for courts to place too much emphasis on the involvement of alcohol when it is a long standing problem for which numerous court orders have been made trying to help Mr. Zawislak deal with the problem. Eventually it will be up to Mr. Zawislak what he does with the alcohol problem, but I would encourage Mr. Zawislak to try his utmost to win that struggle because it’s clear to me that the history of alcoholism has played a part in the criminal history.
Principles of Sentencing
The paramount principles of sentencing at play here in my view are first of all denunciation, as well as specific and general deterrence. Rehabilitation plays a factor although the extensive criminal history of Mr. Zawislak suggests that he is certainly not a first offender or even close to being a first offender, and thus the importance of rehabilitation, although still certainly there as a principle of sentencing to consider, has been somewhat diminished given the history of Mr. Zawislak.
Sentencing Range and Ancillary Orders
There has been a range put forward in terms of sentencing by counsel, both very experienced. The range is twelve to eighteen months in jail, less time served. Time served is calculated to be 157 days, but I will have more to say about the time served in a moment.
First of all I will deal with the rather non-contentious issues.
With regard to count two on the Indictment, the assault cause bodily harm contrary to Section 267 paragraph (b) of the Criminal Code of Canada, there is a primary DNA order issued. There is a Section 110 Criminal Code Firearms and Weapons Prohibition order made for ten years.
Further, there is a two-year probation order imposed on Mr. Zawislak with regard to count two on the Indictment. The probation order will take effect after the jail sentence is completed. The terms and conditions of the two-year probation order are as follows: the statutory conditions will prevail, as well, Mr. Zawislak shall report to a probation office in the manner and on such schedule as mandated by the probation officer. Mr. Zawislak shall reside where directed and not change that residence without prior approval from the probation officer. Mr. Zawislak shall attend for any counselling or treatment as recommended by the probation officer and not leave or discontinue that counselling or treatment without prior permission from the probation officer. In order to monitor Mr. Zawislak’s progress on probation, Mr. Zawislak shall sign any releases of information put to him by the probation officer. During the two-year probation order, Mr. Zawislak shall have no contact directly or indirectly with the victim Brian Ball except through legal counsel. In addition, as part of the probation order Mr. Zawislak shall not attend at any place of residence, education or employment known to Mr. Zawislak, to be that of Mr. Ball. Further during the probation order Mr. Zawislak shall not possess any firearm or weapon as defined in the Criminal Code of Canada. Those are the terms and conditions of the probation order.
While Mr. Zawislak continues to be in custody serving the sentence that I will be imposing in a moment, Mr. Zawislak shall not have any contact directly or indirectly with Brian Ball, except through legal counsel.
With regard to count three on Indictment number one, the assault with a weapon contrary to Section 267(a) of the Criminal Code of Canada, there is a primary DNA order issued. There is a Section 110 Criminal Code Firearms and Weapons Prohibition order issued for a period of ten years. And the same probation order applies.
With regard to count five on Indictment number one, the assault police officer contrary to Section 270(1) paragraph (a) of the Criminal Code of Canada, there is a secondary DNA order issued. In addition there is a Section 110 Criminal Code Firearms and Weapons Prohibition order made for a period of ten years. There is no probation order made with regard to the conviction on count number five.
Sentence Imposed
Taking into account all of the circumstances including the aggravating and mitigating factors, I have come to the conclusion that a sentence mid-way in the range suggested by counsel would be appropriate.
With regard to count number two on Indictment number one, the assault Mr. Ball causing bodily harm to Mr. Ball contrary to Section 267(b) of the Criminal Code of Canada, the custodial sentence imposed is as follows: fifteen months imprisonment - 450 days imprisonment, less 167 days credit for pre-sentence custody. The 167 days is calculated as follows – 157 real days on a one-for-one basis, plus I am exercising my discretion to grant Mr. Zawislak ten extra days credit for the lock-down periods; for a total of 167 days credit for pre-sentence custody. That results in a sentence on count two of Indictment number one, from today of 283 days in jail.
On the assault with a weapon conviction, count number three of Indictment number one, the sentence is 15 months imprisonment - 450 days imprisonment, less 167 days credit for pre-sentence custody for a resulting jail sentence from today of 283 days imprisonment, concurrent with the sentence imposed on count number two.
With regard to the conviction on count number five, the assault Officer Daniels, the sentence is a follows: six months or 180 days imprisonment, less pre-sentence custody credit of 167 days, for a resulting jail sentence of 13 days in custody from today, concurrent with the sentences imposed on counts two and three of Indictment number one.
Thus the total custodial sentence from today for Mr. Zawislak is 283 days in jail.
Just give me one moment please to complete the endorsement which will also serve as a summary of the sentence imposed.
Counsel you can advise me in a moment if I have left anything out.
The sentence imposed is as follows: Count two – a primary DNA order; a Section 110 Criminal Code of Canada order for ten years; 450 days imprisonment, less 167 days credit for pre-sentence custody - amounting to a sentence from today of 283 days imprisonment; two-years probation.
On count number three - a primary DNA order; a Section 110 Criminal Code of Canada order for a period of ten years; 450 days in jail less 167 days credit for pre-sentence custody, resulting in a sentence from today of 283 days imprisonment, concurrent.
Count number five - a secondary DNA order; a Section 110 Criminal Code of Canada order for a period of ten years; 180 days imprisonment, less 167 days credit for pre-sentence custody, resulting in a sentence from today of 13 days imprisonment, concurrent.
Anything further Mr. Martin?
MR. MARTIN: No, Your Honour, that completes it all. Thank you.
THE COURT: Mr. Deakin?
MR. DEAKIN: Thank you Your Honour. Yes, that’s everything.
THE COURT: Thank you. Mr. Zawislak, I wish you all the best moving forward sir.
MR. ZAWISLAK: Thank you sir.
THE COURT: What I decided to do in this case, it was not an easy case, but we have very experienced, very knowledgeable lawyers who put forward a range, and at the end of the day I did not impose the very low end of the range, but I not impose the very high end of the range. I went pretty much exactly in the middle. Okay. So, it’s not over for you. You still have some time to try to turn things around, and continue the progress that you have been on.
MR. ZAWISLAK: Thank you sir.
THE COURT: Okay?
MR. ZAWISLAK: All the other charges I had, they’re, the other two like ...
Withdrawal of Other Charges
THE COURT: What should I endorse about the other charges?
MR. MARTIN: Your Honour, if I could withdraw those other charges, that’s on information number two. There are some Provincial Offences Act charges which I don’t think are before Your Honour. I will have those withdrawn whenever they pop up.
THE COURT: Okay, so with regard to Indictment number one, would you like counts one and four withdrawn now?
MR. MARTIIN: Yes, please.
THE COURT: Alright, so counts one and four on Indictment number one are withdrawn at the request of the Crown, and then there are three charges on Indictment number two.
MR. MARTIN: If I could withdraw all three, please.
THE COURT: All three charges on Indictment number two are withdrawn at the request of the Crown. I will add this to the endorsement, just give me one moment. You can have a seat for moment if you wish counsel.
MR. MARTIN: Thank you.
THE COURT: We’ll take care of all of this now Mr. Zawislak so that there is no confusion, okay?
MR. ZAWISLAK: Thank you sir.
THE COURT: Counts one and four on Indictment number one are marked withdrawn at the request of the Crown. Counts one, two and three, all of the counts on Indictment number two are marked withdrawn at the request the Crown. And then just give me one moment counsel. Okay, there are some other informations, Ontario Court of Justice matters that were part of the file here. A breach of probation allegation from ...
MR. MARTIN: I think the April one’s in ...
THE COURT: Yes, 23 April, 2013, that’s going to stay alive is it?
MR. MARTIN: No, that, that, that’s now part of ...
THE COURT: That’s part of one of the indictments?
MR. MARTIN: Yeah, that ...
THE COURT: Okay.
MR. MARTIN: ... I think that is count three, Indictment two. There’s, there’s two alcohol breaches from two different days.
THE COURT: Oh yes, I see it.
MR. MARTIN: Yeah.
THE COURT: Thank you. It is, it’s count, that Ontario Court of Justice Information 13-317 is covered on Indictment number two, count one. So that charge has been withdrawn at the request of the Crown. And then there is as well, Provincial Offences Act Information 10024, alleging two charges against Mr. Zawislak from April 23, 2013, one under Section 2, subsection 1 paragraph (b) of the Trespass to Property Act, and the second, being intoxicated in a public place contrary to Section 31, subsection 4 of the Liquor Licence Act.
MR. MARTIN: If those are properly before Your Honour I will withdraw those. If, if they are not my plan was to have Constable Byers bring them forward to a bail court, and I would withdraw them forthwith.
THE COURT: Alright, well I think I’ll try to save everyone some work. If you’re content Mr. Deakin I’m just going to indicate now on the record that both charges on Provincial Offences Act Information 10024, both charges, counts one and two, are marked withdrawn at the request of the Crown. And that’s it.
MR. MARTIN: Yes, sir.
THE COURT: Thank you.
MR. MARTIN: Thank you very much.
THE COURT: Have a nice day.
MR. MARTIN: And you too, sir.
THE COURT: Thank you. Alright, thank you. I just want to speak to the lawyers for a moment so officer, go ahead and remove the prisoner please. Thank you. Good luck Mr. Zawislak.
MR. ZAWISLAK: Thank you sir.
MATTER IS CONCLUDED
Form 1
CERTIFICATE OF RECORDING
Evidence Act (subsection 5(1))
I, Linda J. Thompson, certify that Recording 1011-crtrm#201-20131202-095151-10-CONLANC.dcr; is the recording of the evidence and proceedings in the Superior Court of Justice held at 611 9th Avenue, Owen Sound, Ontario on Monday, 2nd December, 2013, and that I was in charge of the sound recording device during those proceedings.
Form 2
CERTIFICATE OF TRANSCRIPT
Evidence Act (subsection 5(2))
I, Linda J. Thompson, certify that this document is a true and accurate transcript of the recording; Her Majesty the Queen v. Michael Steven Zawislka in the Superior Court of Justice, held at 611 9th Avenue, Owen Sound, Ontario taken from Recording 1011-crtrm#201-20131202-095151-10-CONLANC.dcr; which has been certified in Form 1.