ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 12-70000843-0000
DATE: 2014/03/17

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORGE GARCIA

C. Langdon, for the Crown

B. Burgess, for the Accused

HEARD: January 24, 2014

REASONS FOR SENTENCE

B.A. ALLEN J. (Orally):

BACKGROUND

[1] Jorge Garcia was convicted by a jury of assault causing bodily harm and assault on Joeann McDonald on October 16, 2011.

[2] The charges arise from an incident when Ms. McDonald visited Mr. Garcia at his apartment asking to use his phone. She wanted to call her drug dealer. Although Ms. McDonald had seen Mr. Garcia previously, they were not well acquainted. Mr. Garcia let Ms. McDonald into his apartment. After she asked to use his phone, he asked if she would perform oral sex on him for $10. She agreed and commenced doing oral sex after using the phone. A few moments after starting to perform the act Ms. McDonald told Mr. Garcia she did not want to do it any longer. Mr. Garcia persisted in wanting her to continue against her will.

[3] Mr. Garcia became very angry. He sat on her on the bed and attempted to smother her. When she left the bedroom to call the police he dragged her back by her hair, stomped on her and attempted to choke her. He assaulted Ms. McDonald with his hands and feet and did not use a weapon or an object. Pictures taken by the police at the hospital show red marks around her neck where Mr. Garcia tried to choke her, a bump on her forehead and a red mark behind her right ear and on her left shoulder where Mr. Garcia kicked her.

[4] Ms. McDonald lives a vulnerable lifestyle. She is a 32 year old Native woman who has a history of crack cocaine and alcohol addiction which she has supported financially through prostitution.

MR. GARCIA

[5] Mr. Garcia is a 60 year old Spanish-speaking man who speaks little English. He is also severely hearing impaired. He receives communication through lip reading Spanish. Due to his impairment his spoken words are difficult to understand. Mr. Garcia supports himself on a disability pension and resides in a government housing complex in the inner city of Toronto.

[6] Mr. Garcia moved to Canada on his own from Argentina in 1990. He has no family in Canada. He has attempted to obtain employment and to set up a business in small appliance repair but due to his language barrier and hearing disability he has not been successful in supporting himself and had to eventually seek government assistance.

[7] Mr. Garcia has no criminal record. His current convictions are his first.

SENTENCING PRINCIPLES

[8] The objectives of sentencing as set out in s. 718 of the Criminal Code are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims.

[9] Proportionality is also a guiding principle for sentencing which requires the sentence to be proportionate to the gravity of the offence. This must be determined on the particular facts of each case. The “narrow focus” of the sentencing process is directed at imposing a sentence that reflects the circumstances of the specific offence and the attributes of the specific offender. It is not the forum in which to right perceived societal wrongs, allocate responsibility for criminal conduct as between the offender and society, or “make up” for perceived social injustices by the imposition of sentences that do not reflect the seriousness of the crime [R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, 72 O.R. (3d) 1 (Ont. C.A.)].

[10] Parity is another governing principle which requires a sentence be similar to sentences imposed on similar offenders for similar offences committed under similar circumstances. Sentencing is however an individualized process which necessarily means that sentences imposed for similar offences may not be identical [R. v. Cox, 2011 ONCA 58 (Ont. C.A.) and R. v. L.M, [2008] 2 S.C.R. 163, 2008 SCC 31 (S.C.C.)].

AGGRAVATING AND MITIGATING FACTORS

[11] Section 718.2(a) of the Criminal Code requires the court in deciding the nature and extent of sentence to consider any aggravating or mitigating circumstances.

[12] The aggravating factors in this case are:

(a) Mr. Garcia’s assault on Ms. McDonald was vicious and prolonged and resulted in injuries and pain. Mr. Garcia is a tall, large man in contrast to Ms. McDonald’s small stature.

(b) Ms. McDonald is a Native woman and a member of a vulnerable group of drug addicted, sex trade workers who operate in Toronto’s inner city. Mr. Garcia preyed on Ms. McDonald’s vulnerability and her difficulty in defending herself.

(c) Mr. Garcia has no family in Canada and there is no evidence that he has any other community connections to support him.

[13] The mitigating circumstances are:

(a) Mr. Garcia has no criminal record.

(b) Mr. Garcia has had a difficult life from his early days in Argentina. He was born with the hearing disability. As a result, he was bullied as a child and has lived a life of isolation throughout his life. In Argentina, he had a seven-year relationship with a woman who bore a son. He has had no relationship with the son or with his brother in Argentina.

(c) Mr. Garcia is 60 years of age, which combined with his language barrier and hearing disability, would make a custodial sentence more punitive for him than for persons without his barriers.

(d) Due to his hearing disability and language barriers, Mr. Garcia has not been able to get stable employment which has resulted in an impoverished life and social isolation

(e) Ms. McDonald’s injuries, while resulting from brutality and thus inexcusable, were not severe or permanent in nature. There were no fractures or open wounds that required sutures and her injuries were not permanently disabling.

(f) Mr. Garcia has a permanent and stable residence where he has lived for some years.

PARTIES’ POSITIONS

[14] The Crown seeks a six-month custodial sentence and three years’ probation with conditions and the imposition of ancillary orders. The defence primarily seeks a suspended sentence with two years’ probation with conditions at the court’s discretion and takes no issue with the Crown’s request for ancillary orders.

[15] In support of a custodial sentence, the Crown puts forward a case decided by this court where the accused assaulted a transgendered sex trade worker over the head with a piece of wood. He was charged with assault causing bodily harm and assault causing bodily harm with a weapon. The victim suffered a large bump on her head and neck and gum soreness. Unlike Mr. Garcia, the accused in that case had a criminal record of three previous convictions, two for theft and one for assault police/resist arrest. Thorburn, J. imposed a custodial sentence of five months and four months on two charges to be served concurrently [R. v. Gunabalasingam, [2008] O.J. No. 1634 (Ont. S.C.J.)].

[16] The defence advanced a case where the court imposed a suspended sentence with three years’ probation where the accused pleaded guilty to assault causing bodily harm. The accused punched and kicked to the ground an unknown woman for reasons he could not explain. The accused was on probation at the time of his arrest. He had an alcohol abuse problem and an extensive prior record of assault convictions [R. v. Boone, [2013] CarswellBC 2199 (B.C.S.C.)].

[17] In a further case the defence presented, an accused was convicted of two counts of assault causing bodily harm. He inflicted facial cuts on one victim and a fractured forearm on another victim as a result of striking them with a vacuum cleaner pipe. The accused had no previous criminal record. The court imposed a two-year suspended sentence and two years’ probation [R. v. Smith 1992, CarswellNB 514 (N.B.Q.B.)].

[18] The accused in a third case the defence presented received a suspended sentence of three years. The accused, an aboriginal man, pleaded guilty to assault causing bodily harm which involved stabbing his common law spouse in the chest with a pocket knife. The accused had no prior criminal convictions in the last 30 years except an impaired driving conviction [R. v. Jackson, 1995 CarswellYukon 21 (Yukon Territory Territorial Court)].

CONCLUSION

[19] I find this is an appropriate case for a suspension of sentence and a period of probation. This sentence allows for the specific circumstances of this case to be considered. In looking at the appropriateness of a period of incarceration, I find the mitigating factors in this case outweigh the aggravating factors. The need for specific deterrence is not an issue given Mr. Garcia’s lack of a past criminal record and any evidence of general bad character. The sentence does recognize the importance of general deterrence and protection of the public in that with this type of sentence an accused can be brought back before the court and resentenced if he breaches the probationary conditions.

[20] A custodial sentence is not warranted in every case of a violent crime. The Criminal Code allows for the particular circumstances of each case to be considered in making this determination. Section 718.2(e) provides that all sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders.

[21] I find it is reasonable for the court to take into account the extra punitive impact incarceration would have on Mr. Garcia. He would have difficulty communicating with the jail personnel and other inmates due to communication barriers because he does not speak English and is hearing impaired. This could put him in peril with the dangerous elements in the facility and lead to isolation that is not an intended part of his punishment. There is also the matter of his senior age which bodes against incarceration particularly when considered together with the other barriers and the difficulty inherent in being incarcerated for the first time at age 60.

[22] Allowing Mr. Garcia to remain in the community does not pose as great risk to the community as with other accused in the cases cited, given his lack of a criminal record and the absence of evidence of substance abuse and of bad character. There is some concern with the fact he lives alone and has no family or community support. However, I think a period of probation with supervision and conditions restricting his contact with Ms. McDonald and allowing for rehabilitative measures can to some degree allay this concern.

SENTENCE

[23] Jorge Garcia is sentenced to a two-year suspended sentence for assault causing bodily harm and assault, with two years’ probation on the following conditions:

(a) You will keep the peace and be of good behaviour.

(b) You will appear before the court when required to do so by the court and notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation.

(c) You will refrain from communicating directly or indirectly with Joeann McDonald.

(d) You will refrain from attending within 100 metres of Joeann McDonald or at any place known to be the residence or school or place of employment of Joeann McDonald.

(e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer, including for anger management and you will sign whatever consents or releases that may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

(f) You will not own, possess or carry any weapons defined by the Criminal Code.

[24] Further, the following ancillary orders will be made:

(a) There will be an Order made under s. 109 of the Criminal Code which prohibits you for the next ten years from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

(b) There will be an Order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis.

Allen J.

Released: March 17, 2014