ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-30000434-0000

DATE: 20140711

B E T W E E N:

HER MAJESTY THE QUEEN

Joe Hanna for the Crown

• and -

JASON AMADOR

Andrew Stastny for Jason Amador

HEARD: March 10 and June 19, 2014.

REASONS FOR SENTENCE

CORRICK J. (orally)

Introduction

[1] Mr. Amador pleaded guilty before me on March 10, 2014 to one count of robbery and one count of aggravated assault. The matter was adjourned for the preparation of a pre-sentence report. I heard submissions on June 19, 2014.

Circumstances of the Offences

[2] An agreed statement of facts was filed as Exhibit #1. It indicates that Mr. Amador and the victim, John Falcon, have known each other for several years. They were neighbours at the time of the offence.

[3] On November 29, 2012, Mr. Amador, his co-accused, Mr. Arias, and a third male approached Mr. Falcon in the parking lot of the apartment building where Mr. Amador and Mr. Falcon lived. Mr. Amador accused Mr. Falcon of "snitching on him" or "setting him up." Mr. Amador and Mr. Arias then began attacking Mr. Falcon. Mr. Amador shoved Mr. Falcon into a car. Mr. Falcon fell to the ground, and was kicked and punched repeatedly by Mr. Amador and Mr. Arias. Mr. Amador and Mr. Arias stomped on Mr. Falcon while he was on the ground.

[4] During the beating, Mr. Amador went through Mr. Falcon's pockets and stole his cell phone. Mr. Amador and Mr. Arias also demanded Mr. Falcon's wallet, ring and money.

[5] The attack lasted several minutes, and was witnessed by several residents of the apartment building. When police arrived, Mr. Arias and Mr. Amador were standing over Mr. Falcon, who was badly injured. There was blood at the scene from Mr. Falcon’s injuries. The police and Mr. Falcon reported that Mr. Arias and Mr. Amador were obviously intoxicated at the time.

[6] Mr. Falcon suffered injuries to his face, including a fracture to his left orbital bone. His right ankle was fractured. When he was admitted to hospital, the bone was protruding through his skin. Surgical intervention was required to repair his ankle. The repair required the insertion of a plate and screws in Mr. Falcon's ankle. The medical records, filed as Exhibit #5, indicate that Mr. Falcon remained in hospital until December 21, 2012, at which time he was transferred to a rehabilitation facility where he stayed a further month. Mr. Falcon testified at the preliminary hearing that his ankle is not the same as it was before the attack. He cannot run or walk as well as he did before, and his ankle feels different when he walks down stairs. In describing how this offence had affected him in a victim impact statement, Mr. Falcon wrote, “it made me more sad because I thought a neighbour can never do that.”

Circumstances of the Offender

[7] Mr. Amador is a 27-year-old man with no criminal record. The pre-sentence report filed as Exhibit #2 indicates that his parents separated when he was very young, and he was raised by his mother, who had emotional difficulties. She had difficulty making ends meet as a part-time cleaner, was often depressed, and spoke minimal English. Mr. Amador drank alcohol to deal with the stress he felt at home dealing with his mother. He had little contact with his father until this offence. He currently lives with his father, who is his surety. This has resulted in an improvement in their relationship.

[8] Mr. Amador has a two-month old daughter with a woman from whom he has recently separated. He sees his daughter weekly and provides for her to the best of his ability.

[9] He struggled academically in school and was the victim of bullying. He eventually attained his high school education at the City Adult Learning Centre when he was 20 years old. He has not had stable employment, but has worked at temporary jobs both through temporary employment agencies and private employers.

[10] Mr. Amador began drinking alcohol when he was 15 years old. His alcohol abuse has resulted in some damage to his liver and kidneys, frequent contact with the police for being intoxicated in a public place, and loss of employment. He has used detox services twice. He reported to the author of the pre-sentence report that he no longer drinks or has an alcohol problem.

[11] In his remarks to the court, Mr. Amador said that he regretted what he did and wanted to apologize to Mr. Falcon and his family. He indicated that he had totally lost himself to alcohol at the time. The birth of his daughter has caused him to see things differently. He is the sole provider for her and is focusing on that responsibility. He said that he has grown up and smartened up since he committed this offence.

Legal Parameters

[12] Robbery is punishable by life in prison. Aggravated assault is punishable by fourteen years in prison.

Position of the Parties

[13] Mr. Hannah, on behalf of the Crown, submits that a period of incarceration between two and three years is the appropriate disposition. He also seeks a weapons prohibition order and a DNA order. If the court orders probation, Mr. Hannah seeks conditions that Mr. Amador have no contact with Mr. Falcon, not possess any weapon and seek counselling as directed by the probation officer.

[14] Mr. Stastny, on behalf of Mr. Amador, submits that the appropriate range of sentence is between six and twelve months in prison given Mr. Amador's relative youth, and the fact that he is a first offender.

Principles of Sentencing

[15] The principles of sentencing that I am bound to consider are set out in the Criminal Code. The first is the fundamental purpose of sentencing set out in s. 718, which is to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” by imposing sentences that give effect to one or more of the following objectives: denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community, and promoting a sense of responsibility in the offender.

[16] The second principle I must consider is proportionality as set out in s. 718.1. Any sentence imposed must reflect the gravity of the offence and the offender’s degree of responsibility.

[17] Thirdly, I am required by section 718.2 to impose a sentence taking into account any relevant aggravating or mitigating circumstances relating to the offence or the offender.

[18] Finally, I must consider sentences imposed on similar offenders for similar offences committed in similar circumstances. It is those that I now consider.

[19] In R. v. Anderson, [2011] O.J. No. 4148, Justice Salmers of this court imposed a three-year sentence on one of three accused found guilty of aggravated assault. The accused punched the victim in the head and face after the victim had been rendered defenceless by an assault committed by a different person. As the accused was leaving the scene of the assault, he picked up a pipe and swung it against the victim's leg, breaking the victim's ankle. The victim required surgery. The accused was 23 years old and had no criminal record at the time of the offence. He had been found guilty following a trial. The Court of Appeal reduced the sentence to two years based on fresh evidence that demonstrated that the accused had turned his life around.

[20] Justice Gordon sentenced a 22-year-old first offender who pleaded guilty to aggravated assault to 30 months in prison in R. v. Mizra, [2006] O.J. No. 1806. The accused punched the victim to the ground and delivered a soccer-style kick to the victim's head resulting in permanent brain injuries.

[21] In R. v. Tourville 2011 ONSC 1677, [2011] O.J. No. 1245, Justice Code reviewed the sentencing jurisprudence in aggravated assault cases, and concluded that the cases fall into three broad ranges of sentence. The first range he described as "exceptional," characterized by an unusual degree of mitigation, permitting a court to deviate from the usual sentence of significant jail time. In the middle, he identified cases generally involving first offenders and some element suggesting a consensual fight during which the accused used excessive force. These cases generally attracted high reformatory sentences between 18 months and two years less a day. At the high end of the range are penitentiary sentences for four to six years. These cases generally involved recidivists, with serious prior criminal records or unprovoked or premeditated assaults with no element of consent or self-defence.

[22] The Ontario Court of Appeal upheld a four-year sentence for aggravated assault and assault with a weapon imposed after a jury trial in R. v. Scott, [2002] O.J. No. 1210. In that case, the victim was attacked at a party with broken beer bottles, suffering extensive scarring to her face, arms, torso and legs. The accused had a criminal record including a previous incarceration for 20 months.

[23] The Court of Appeal upheld a 12-month sentence imposed on a youthful first offender following a trial for aggravated assault in R. v. MacDonald, 2010 ONCA 178, [2010] O.J. No. 912. The accused threw a beer bottle at the victim, knocking him unconscious and causing lacerations and an injury to his jaw.

[24] Justice Richetti imposed a four-year sentence on a 28-year-old first offender who was found guilty of two counts of robbery following a trial in R. v. Hoang 2011 ONSC 3402. The accused participated in a home invasion robbery of a drug dealer, during which the victim was punched, kicked and choked.

[25] Finally, Mr. Amador's co-accused, Hector Arias, pleaded guilty to robbery and assault causing bodily harm on June 3, 2013, prior to the commencement of the preliminary hearing. He had a substantial criminal record, including three prior convictions for robbery, despite being only 23 years old. He had previously served a penitentiary sentence. Justice Feldman imposed a two-year sentence followed by probation. Mr. Arias had spent nearly seven months in pre-trial custody.

[26] A review of the cases demonstrates that sentencing is a profoundly individualized process driven by the unique facts of every offence and the unique characteristics of every offender. The circumstances of any case, including this one, can be readily distinguished from any other case. It is always necessary to consider and apply all of the sentencing principles in the Criminal Code, having regard to the unique circumstances of the case. This is a difficult task, especially in a case like this one, in which a person with no criminal antecedents has committed a very serious offence.

Aggravating and Mitigating Circumstances

[27] I turn now to the aggravating and mitigating circumstances of the offence and of the offender. First the aggravating circumstances.

1. This was an unprovoked attack on a vulnerable victim. Mr. Falcon suffers from schizophrenia.

2. Mr. Falcon was by himself when he was attacked by two men. He was unable to defend himself against two men.

3. Mr. Falcon tried several times to leave the situation but was prevented from doing so by Mr. Amador and Mr. Arias. They continued to punch and kick him, and stomp on him. They were standing over Mr. Falcon when police arrived.

4. The offence has had a significant impact on Mr. Falcon, a circumstance deemed to be aggravating by s. 718.2(a)(iii.1) of the Criminal Code. His ankle and orbital bones were broken. He required surgery to repair his ankle. He was in the hospital for almost two months. His ankle still does not function as it did before the offence. He has a plate and screws in his ankle.

5. During the beating, Mr. Amador rifled through Mr. Falcon's pocket and took his cell phone.

6. The motivation for this cowardly attack is particularly aggravating. Mr. Amador accused Mr. Falcon of snitching on him, and proceeded to deliver his own form of justice for that violation of the street code.

[28] The following mitigating circumstances are present in this case:

1. Although not a youthful offender, Mr. Amador is still relatively young. He was 26 at the time of the offence.

2. Mr. Amador has no criminal record. It appears that this level of violence is uncharacteristic for him.

3. Albeit late in the proceeding, Mr. Amador did plead guilty and accept responsibility for his actions.

4. I accept Mr. Amador's statement to the court that he regrets his conduct and wants to change his life given his new family obligations.

5. Mr. Amador spent overnight in custody. He was released on conditions, including a 9:00 p.m. curfew. Although not an onerous condition, Mr. Amador has complied with it for the past 19½ months.

Determination of a Fit Sentence

[29] Mr. Falcon was brutally beaten in retaliation for "snitching" on Mr. Amador. He suffered serious injuries that required surgery and lengthy hospitalization. The level of violence perpetrated on a vulnerable victim and the significant impact the offence has had on him call for a sentence that has denunciation and general deterrence as the paramount objectives.

[30] Notwithstanding this, given Mr. Amador's relative youth and lack of criminal record, rehabilitation and specific deterrence are also important considerations.

[31] Mr. Stastny argued that the court must consider the parity principle. I agree. Mr. Amador's co-accused, Mr. Arias, a man with a substantial criminal record, received a sentence of two years after pleading guilty to assault causing bodily harm and robbery. He had served nearly seven months in pre-trial custody. The sentencing judge did not specify the amount of credit he was giving for the pre-trial custody. Assuming Mr. Arias received one day for each day in pre-trial custody, the total sentence he received was nearly 31 months. Mr. Stastny argued that Mr. Amador should receive much less given that he is a first offender.

[32] Of course, parity does not require the imposition of the same sentence on co-accused. There are differences. Mr. Arias had a substantial criminal record, yet pleaded guilty to a lesser offence before the preliminary hearing commenced.

[33] I am also mindful that a first sentence of imprisonment should be as short as possible. It should be proportionate to the gravity of the offence, and not be imposed to warn other like-minded individuals: R. v. Priest (1996), 110 C.C.C. (3d) 538 (Ont. C.A.).

[34] I have considered the fact that Mr. Amador is a first offender who has committed a very serious violent offence. He has expressed remorse and acknowledged his responsibility for the offence. The pre-sentence report indicates that he has taken steps to turn his life around since the commission of this offence and the birth of his daughter. In all of the circumstances, a penitentiary sentence is not necessary to satisfy the objectives of sentencing. I am satisfied that a sentence of 18 months imprisonment concurrent on both charges is the fit disposition, followed by probation for two years with the following conditions:

1. keep the peace and be of good behaviour;

2. attend in court as required.

3. report to a probation officer as and when required;

4. remain within the jurisdiction of this court unless written permission to go outside this jurisdiction is obtained from the probation officer;

5. do not communicate, directly or indirectly, with John Falcon;

6. do not communicate, directly or indirectly, with Hector Arias, except through counsel;

7. abstain from owning, possessing or carrying any weapon including any offensive weapon, ammunition, explosive substance or weapon as defined in the Criminal Code; and

8. attend counselling as directed by your probation officer, and sign any releases necessary to allow your probation officer to monitor your compliance with this condition.

[35] In addition, as aggravated assault is a primary designated offence, I make a DNA order pursuant to section 487.051(2) of the Criminal Code authorizing the taking of a DNA sample.

[36] There will also be a weapons prohibition order for ten years pursuant to s. 109(2) of the Criminal Code.

Corrick J.

Released: July 11, 2014

COURT FILE NO.: CR-13-30000434-0000

DATE: 20140711

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
JASON AMADOR

REASONS FOR SENTENCE

Corrick J.

Released: July 11, 2014