ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 32/15
DATE: 20150925

RE: Her Majesty The Queen v. Puneet Sharma

BEFORE: K.L. Campbell J.

COUNSEL:
Luke Schwalm, for the Crown, respondent

Paul Calarco, for the accused, appellant

HEARD: September 23, 2015

ENDORSEMENT

[Summary Conviction Appeal]

[1] The appellant, Puneet Sharma, eventually pled guilty, mid-trial, to assaulting his wife with a weapon, namely, a stove element. In admitting his commission of the offence, the appellant agreed that, on June 4, 2012, he became very angry with his wife as a result of some incident of perceived disrespect on her part toward him. The appellant grabbed his wife by her shirt and pushed her over to the stove in the kitchen and held her in place over one of the heating elements. Members of the complainant’s family who were present at the time tried to intervene, but the appellant physically resisted their efforts, maintaining his hold on his wife. The complainant received a small burn to the bottom of her chin, some small blisters on each hand, and some of the hair on the left side of her head was singed by the heat from the stove element. Ultimately, the other family members were able to successfully intervene in the incident to prevent any further injury.

[2] The appellant and the complainant were married in India in 2011, and his wife sponsored him to come to Canada in January of 2012. Their marriage now appears to be over as a result of this violent incident.

[3] At trial, the 30-year-old appellant sought the imposition of a conditional discharge. He had served four days of pre-trial detention and, following his release, had voluntarily performed some community service and had successfully completed anger management courses. Further, the appellant is university educated, with a degree in engineering and computer science, and has worked productively full-time in Canada as a computer consultant. He has no prior criminal record. The appellant sought the imposition of a conditional discharge as he feared that a conviction would ultimately result in his deportation. This potential immigration consequence of a conviction was a topic of much discussion at the sentencing hearing in this case.

[4] On July 18, 2013, the trial judge, the Honourable Mr. Justice D.P. Cole of the Ontario Court of Justice, refused the appellant’s request for a conditional discharge. Instead, the trial judge entered a conviction, suspended the passing of sentence and placed the appellant on probation for one year. In his reasons for sentence, the trial judge called the offence “appalling,” noting that it “significantly endangered” the victim and amounted to an attempt by the appellant to “discipline” his wife. He described the appellant’s degree of “moral blameworthiness” as “very high.” The trial judge concluded that it would be a “significant error in principle” for him to grant the conditional discharge sought by the appellant.

[5] The appellant now appeals against his sentence. The fresh evidence tendered on the appeal reveals that, on February 23, 2015, the immigration proceedings against the appellant resulted in him being declared inadmissible, and he was ordered deported. That order has not yet been executed. The appellant has launched an appeal against this deportation decision, and that appeal is still pending.

[6] The appellant argued that, in refusing to grant his conditional discharge request, the trial judge erred in principle in failing to properly consider: (1) the severe immigration consequences suffered by the appellant as a result of his conviction; (2) the four days of pre-sentence custody served by the appellant; (3) the considerable rehabilitative steps taken by the appellant following his arrest; and (4) the legal principles concerning the availability of conditional discharges. I need not determine whether the trial judge erred in relation to his consideration of these various issues in his reasons for sentence, as I have concluded that the trial judge reached the right conclusion in any event. In other words, even reviewing the sentence imposed by the trial judge without the deference normally accorded such decisions, and considering the matter anew, I have concluded that the appeal must be dismissed, as the trial judge correctly concluded that a conditional discharge was not a fit and appropriate sentencing disposition in all of the circumstances of this case.

[7] According to s. 730(1) of the Criminal Code, R.S.C. 1985, c. C-46, a conditional discharge may be imposed where such a disposition is in the “best interests of the accused” and is “not contrary to the public interest.” There is no doubt that a conditional discharge would be in the best interests of the appellant. Most obviously, such a disposition would immediately avert his pending deportation. However, as the trial judge accurately noted during the sentencing hearing, the critical sentencing issue is whether the requested conditional discharge is “contrary to the public interest” given the recognized need to denounce and deter crimes of domestic violence. See R. v. Outram, 2015 ONSC 1934, [2015] O.J. No. 1454, at paras. 31-34 (and the authorities cited therein).

[8] In my view, Cole J. correctly determined that a conditional discharge would be contrary to the public interest. This was a serious and dangerous act of domestic violence on the part of the appellant, which could easily have resulted in even greater physical injuries to the victim. Notwithstanding the various mitigating features of this case, as highlighted by defence counsel at trial and on appeal, a conditional discharge would simply not proportionally reflect the “gravity of the offence and the degree of responsibility of the offender” as required by s. 718.1 of the Criminal Code. Nor would such a disposition sufficiently deter and denounce the commission of these types of serious violent crimes.

[9] While the adverse immigration consequences for the appellant are certainly an important factor to be taken into account in the imposition of sentence, such immigration consequences cannot justify the imposition of a sentence that is inconsistent with the fundamental purpose and principles of sentencing articulated in the Criminal Code. See R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at paras. 11-20; R. v. Badhwar, 2011 ONCA 266, 9 M.V.R. (6th) 163, at paras. 42-45; R. v. Hamilton, (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (C.A.), at para. 156-158; R. v. Lu, 2013 ONCA 324, [2013] O.J. No. 2222, at paras. 40-51; R. v. Ogbamichael, 2015 ONCA 99, [2015] O.J. No. 632, at para. 4; R. v. Pinas, 2015 ONCA 136, [2015] O.J. No. 941, at paras. 2, 11-14; R. v. Nassri, 2015 ONCA 316, 125 O.R. (3d) 578, at paras. 10-13, 25-33. As Wagner J. stated in delivering the unanimous judgment of the Supreme Court of Canada in R. v. Pham, at paras. 14-16:

The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The flexibility of our sentencing process should not be misused by imposing inappropriate and artificial sentences in order to avoid collateral consequences which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will.

These consequences must not be allowed to dominate the exercise or skew the process either in favour of or against deportation. Moreover, it must not lead to a separate sentencing scheme with a de facto if not a de jure special range of sentencing options where deportation is a risk.

[emphasis added]

[10] As I have indicated, in my view, the granting of a conditional discharge in all of the circumstances of this case would be inconsistent with the fundamental purpose of sentencing and the principles of sentencing outlined in the Criminal Code. In the result, the appeal against sentence must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: September 25, 2015