R. v. Sadykov, 2016 ONSC 1660
CITATION: R. v. Sadykov, 2016 ONSC 1660
COURT FILE NO.: CR-15-30000418-0000
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SADYK SADYKOV
Defendant
Peter Fraser, for the Crown
Sharon Jeethan, for the Defendant
HEARD: December 21, 2015
REASONS FOR SENTENCE
Michael G. Quigley J.
[1] Sadyk Sadykov was convicted on December 21, 2015, along with Kervon James, Bevon Marshall and Ryan Barton, of aggravated assault, committing an assault using an edged weapon, and possession of an edged weapon for a purpose dangerous to the public peace.
[2] These four offenders were inmates of the Toronto East Detention Centre who had been moved into Range 3B West along with the victim, Andrew Burnett, on the evening of Friday, January 2, 2015. That range is a temporary overnight holding area for inmates who are anticipated to be attending at court on the next day, in this case, Monday, January 5, 2015. Andrew Burnett was scheduled to commence his trial for first-degree murder on that day.
[3] On the morning of Saturday, January 3, however, Sadyk Sadykov participated with the three other offenders in a vicious and plainly pre-planned aggravated assault on Andrew Burnett. The assault took place inside his cell. Mr. Burnett was seriously slashed with an edged weapon, although it was never found. The evidence was entirely circumstantial, consisting of the video surveillance of the actions of the four offenders that Saturday morning.
[4] At paragraph 61 of my Reasons for Judgment cited at R. v. Barton, 2015 ONSC 7990, I summarize my reasons for convicting the four accused as follows:
In summary, I am satisfied beyond a reasonable doubt that the Crown has made out the elements of the three offences of aggravated assault, assault with a weapon and possession of a weapon for a purpose dangerous to the public peace against each accused, based on my finding that they acted in concert to achieve this common unlawful purpose. However, I am not satisfied to the criminal standard that either Barton or James were core principals of the assaults, based on their location outside of Burnett's cell when the actual injuries had to have been inflicted by Sadykov and Marshall.
[5] Mr. Barton and Mr. James were plainly parties to the offences, but I found them guilty of the lesser but included offences of aiding and abetting in the index offences, rather than being lead principals in the criminal action that took place that morning.
[6] Because of his prior record, the Attorney General has given notice of her intention to bring dangerous offender proceedings against Bevon Marshall. He will be dealt with in separate proceedings. That leaves Sadyk Sadykov, Ryan Barton and Kervon James who remain to be sentenced by me in the ordinary way taking account of the factors enumerated in s. 718 of the Criminal Code.
[7] It is plain from the paragraph quoted above and from my Reasons as a whole, that I found Sadyk Sadykov and Bevon Marshall to have been the lead actors in the commission of the assault on Andrew Burnett, and thus, with Mr. Marshall removed from this sentencing proceeding to his own path forward, that leaves Sadyk Sadykov to be sentenced here as the remaining lead actor. I have prepared separate reasons today for my sentence for Ryan Barton, who I have found to be an aider and abettor. Kervon James will be sentenced on another date.
Circumstances of the Offences
[8] The circumstances of the offences are described at paragraphs 12 through 27 of my Reasons for Judgment. The assault commenced just after 9 o'clock in the morning after the cells were unlocked. Messrs. Sadykov, Marshall and James can be seen on the video surveillance footage conferring in a back corner of the range, a couple of steps from Ryan Barton's cell, 3214. Several minutes later, Mr. Sadykov appears to lead a procession in the direction of Mr. Burnett’s cell. Mr. Barton comes out of his cell and joins the three of them and they walked directly in single file towards Andrew Burnett’s cell. His cellmate, William Ferguson, had left some minutes earlier. The accused marched directly and plainly towards Mr. Burnett's cell. Mr. Sadykov was the first in line, followed by Mr. Marshall, Mr. Barton and finally Mr. James. They close the door behind them as they enter Mr. Burnett's cell.
[9] About five seconds later, Mr. James emerges from the cell and closes the door behind him, and can be seen holding the door closed with the side of his foot for a short period of time, perhaps five seconds, and then re-enters Mr. Burnett's cell. Thirty seconds after they enter, Mr. Barton emerges. I found there must have been an altercation in those opening seconds, because Mr. Barton’s orange jumpsuit had been ripped open. However, he never went back into Mr. Burnett's cell. This is entirely different from the seeming roles of Messr’s Sadykov and Marshall. Kervon James and Ryan Barton are likely not the planners or instigators of this plan. Instead, as I found in my Reasons, it was Mr. Sadykov and Mr. Marshall who remained inside Mr. Burnett’s cell for some minutes and were principally responsible for Mr. Burnett’s wounds.
[10] I observed that the assault was carried out with ballet-like choreography and planning, with no apparent nervousness or absence of confidence, and with all who were involved exhibiting gestures of self-congratulation in a job well done at the end of the action.
Circumstances of the Offender
[11] Sadyk Sadykov is presently 31 years of age. He has a criminal record but it is important to look closely to not be misled by its contents. He has been convicted of numerous offences of possession of illegal drugs for the purposes of trafficking, and of trafficking in controlled substances, and has been convicted of gun possession offences. His first sentence was imposed on June 26, 2007 for possession for the purposes of trafficking. He received a global sentence of three years consisting of 11 months in jail in addition to 25 months of credit for pre-sentence custody. A section 109 weapons prohibition was imposed.
[12] On October 27, 2010, he received a four-year global sentence for convictions on four counts of trafficking in a controlled substance. That sentence consisted effectively of four years, one day in jail in addition to 48 months of credit for pre-sentence custody and a section 109 weapons prohibition for life. Other charges laid at that time did not proceed when the offender was successful on a Charter challenge. However, that ruling was appealed, reversed, and the matter came back again for trial in 2015.
[13] On that second trial, he was convicted of all eleven charges initially laid, namely: possession of MDMA, marijuana, methamphetamine, heroin, and ketamine for the purposes of trafficking, possession of proceeds of crime, and five firearm possession offences associated with the possession of a loaded prohibited firearm at that time.
[14] Thorburn J. sentenced Mr. Sadykov to a global sentence of seven years, but gave him one year of credit arising out of the earlier trial, recognizing that he had already served 48 months of pre-sentence custody in respect of these offences as a whole. She sentenced him to 39 months of incarceration, on top of 33 months of pre-sentence custody, and imposed a further section 109 weapons prohibition for life.
[15] Finally, on September 15, 2015, Mr. Sadykov received a global seven-year sentence for two counts of trafficking in a controlled substance and what appears to be at least one, if not two counts of possession of a controlled substance for the purposes of trafficking. On this last occasion, however, I specifically note that Justice Franks determined that his sentence would be served four years consecutive to the sentence already being served that had been imposed by Justice Thorburn, and three years concurrent to that sentence, based plainly upon principles of totality.
[16] There is no question that Mr. Sadykov’s record is a serious one, but it is curious to note that he has been convicted of only one assault, in 2007 as a youth, when he was convicted of assaulting a peace officer, and sentenced to spend two days in jail and one day of supervision in the community on each of the two charges concurrently, together with 14 months of probation, and a section 51(3) weapons prohibition for two years.
[17] While I do not suggest that Mr. Sadykov’s criminal antecedents can in any way permit him to be regarded as a person who has not previously been a full participant in the drug trade, with a disturbing addition of his association with firearms, it is noteworthy that until this index offence was committed for reasons none of us will ever know but which cannot ever justify it, Sadyk Sadykov had committed only one prior offence involving an assault. That is important to my mind because it distinguishes him from a number of the other offenders involved in the case law advanced by the Crown in support of a sentence of eight to nine years of imprisonment, consecutive to his existing sentences.
[18] Mr. Sadykov is Russian and of the Jewish faith. He grew up in war zones in the pre-Perestroika Republics of the Soviet Union in 1984 and thereafter. He came to Toronto in 1990. He became a Canadian in 1995. He is the oldest of four siblings, and has two younger sisters now aged 27 and 25, and a younger brother now aged 20. Mr. Sadykov’s parents provided him with a good home life and support. The seventeen extensive and loving letters provided by the immediate and extended members of his family show that they all regarded him as an important person in their lives, one who contributed mightily to the operation of the family and the guidance of his siblings, but in a way that did not reflect the lawless life that he led outside of that family environment. Notwithstanding his serious prior altercations with the law, counsel emphasizes that he has done everything he can to reinforce the importance for his sisters and his brother of avoiding making the bad choices that he has made and that have led him here before this Court now and on earlier occasions.
[19] I am advised that Mr. Sadykov is also or has developed into a deeply religious man, who wants to put this matter behind him and move forward. He has made peace with his God, and while it cannot affect the sentence I am required to impose on him today under our law, I commend him for having added faith to his life, which I hope will assist him in seeing that there is indeed light at the end of the tunnel of sentences he is presently serving to which I must add today, and giving him the courage, fortitude, patience and perseverance to endure and serve, in a quiet and compliant manner, the balance of these sentences. I do not mean religious disrespect, but I hope he might get some support from the famous and well-known Prayer of St. Francis, or the Judaic equivalent of which I am sure there must be one.
[20] I accept the submission of his counsel that he wished to write a personal letter to me in advance of the sentencing, but was unable to do so because of frequent lockdowns in the correctional facility where he is presently in custody, but Justice Thorburn as well noted Mr. Sadykov’s religious thoughts, and thought there was some expression of remorse in that case.
[21] Mr. Sadykov’s father was involved in a business manufacturing orthotics, and in his 20’s, he followed in his father's footsteps. He worked in construction, then at an auto body shop and in car mechanics. Bad choices led him to also be involved in the drug trade as his convictions portray activity that is of greater aggravation here because it was associated with firearms.
[22] Nevertheless, against this background of lawlessness and danger, there is a scintilla of hope. Mr. Sadykov regrets his choices and once he has completed paying his debt to society in the form of serving the sentence I must impose upon him today, in addition to the sentences he is already serving, he would like to pursue a formal business education and he hopes someday to be able to run his own business. I again note that his siblings make clear in their correspondence that it is Mr. Sadykov who has guided them away from following his path. Now he just needs to listen to his own advice.
Position of the Parties
[23] The Crown seeks a sentence of eight to nine years against Sadyk Sadykov for his participation in these events as one of the two principals, and for the record, three to four years against Mr. Barton and Mr. James for their convictions of having aided and abetted in the commission of that aggravated assault against Andrew Burnett. The Crown also seeks DNA orders on the basis that this is a primary designated offence, and a section 109 weapons prohibition for life. I note that neither of the last two orders are opposed and so given I am satisfied that both are appropriate in the circumstances, those ancillary orders will issue as requested. Apart from those ancillary orders, the issue on the sentencing is what the fit sentence is for Sadyk Sadykov, given the circumstances of the offence and his particular circumstances and antecedents.
[24] In response, Mr. Sadykov’s counsel respectfully but vigorously rejects the Crown’s position. She argues that the eight to nine years of consecutive sentence sought by the Crown is excessive, crushing, and violates the principles of totality that the Criminal Code and case law continues to stipulate are relevant in sentencing, even on a sentencing like this where deterrence and denunciation must be the principal factors engaged.
[25] There was a gap of five years between the offences for which he was convicted in 2010, and his further conviction for those same offences following a successful Crown appeal in 2015, but it should be remembered that those are both part of the same series of offences, not a separate and distinct series of transactions or events. Mr. Sadykov is presently serving a remaining sentence of ten years. If the Crown’s submissions were accepted, the imposition of a consecutive sentence of eight to nine years would result in a total remaining sentence of eighteen or nineteen years; a sentence said to be crushing and that would violate the principle of totality.
Aggravating and Mitigating Factors
[26] The aggravating and mitigating factors in this case are simple and straightforward. The most important aggravating factors are the planned and deliberate nature of the attack, the use of a weapon inside a corrections facility which led to very significant injuries, as I found in my Reasons, such that the wounds inflicted on Andrew Burnett by these offenders came within an inch or two of being life-threatening.
[27] The second principal aggravating factor is Mr. Sadykov’s extensive criminal record, not in the sense of the number of occurrences, but rather in the sense of the number of offences that he has been convicted of on relatively few occasions. As well, it is aggravating that Mr. Sadykov and Mr. Marshall appear to have been the leaders of the attack.
[28] While there are a few mitigating circumstances, they are important. There are important supportive letters from his family and they show that he is important to them, that they rely upon him and that he appears to be an entirely different person in their company than he is when in public or on his own. Nevertheless, I can see redeeming possibilities even for Mr. Sadykov. His professed discovery or rediscovery of religious roots and values is important, because it provides a value system that has not seemingly been present in his life during the period when he was committing the principal offences for which he is now serving time, and I accept that once he has paid this debt to society, if he can mind his behaviour carefully, he may well be able to move forward and be able to start up a business of the kind he is interested in once he completes serving his time. He hopes to complete his diploma and is only three credits short of obtaining it. If he is able to do that, it will also assist with his rehabilitation, and the time that he will spend in the federal penitentiary also contributes to his rehabilitation if he takes full advantage of the educational facilities courses and opportunities, and anger management training that is available.
Analysis
[29] Turning to the appropriate range of sentence, I agree with defence counsel that a sentence of eight to nine years consecutive to the existing sentences being served by Mr. Sadykov is excessive. However, while I agree that the total result is excessive, there is less overreaching involved in the suggestion that a lengthy term of incarceration is required. It plainly is. This is a most serious offence, and its gravamen is not reduced because it took place in a correctional facility. Whatever rules of etiquette and daily conduct may govern in correctional facilities culture between inmates, all are entitled to go about their daily business, in their case serving their sentences or preparing for trial, in an environment devoid of violence, just as citizens do the same every day. This is a crime that calls for a sharp and strong sentence to convey the message to inmates that crimes of violence such as this assault will not be tolerated in the corrections system and will be dealt with quickly and strongly.
[30] Nevertheless, looking at the case law put forward by the Crown, Mr. Sadykov does not have the same violent criminal background as the offender did in R. v. Plain, where a six-year sentence was imposed.
[31] Turning to R. v. Williams, like in this case, the offender was already serving a 48-month sentence for drugs and weapons, but also for assault offences, at the time that he was sentenced for assault and aggravated assault on a fellow inmate. As well, the offender there had a very long criminal record. Here, while the offender's record is not short, it consists of only three substantial occurrences, and only one of those involved any physical aggression in the case of the assault against a peace officer. In Williams, the judge sentenced the offender to seven years of imprisonment and that was upheld by the Court of Appeal.
[32] In R. v. Sahota, a sentence of seven and a half years was imposed, but in my view that was unquestionably a more serious aggravated assault than the assault perpetrated here against Andrew Burnett, without in any way demeaning the seriousness of that assault itself. In Sahota, the offender was a participant in an actual riot at the Joyceville Institution in 2009 when he and a number of other inmates attacked a lesser number of inmates, and then focused their attack on a particular single inmate. That victim suffered such significant injuries that he required surgery and they have caused him permanent loss of memory.
[33] R. v. T.M. is also a different case from this one, where the offender was sentenced to a nine-year term of incarceration, but that was against a background where he had previously been sentenced to sixteen years in the penitentiary in 1998 when he was 16 years old, and where he was being sentenced for attacks not only against two other inmates, but also a prison guard, i.e. three persons, not just one. So too, I find R. v. Munro to be very different, involving seven other aggravated assaults.
[34] Similarly, the sentence of nine years upheld in R. v. Dunn also involved considerably more egregious circumstances. In that case, the offender had eleven prior convictions over a period of approximately eight years; a product of having been raised in a turbulent environment. The assault for which he was being sentenced was substantially more serious, however involving horrific assault conduct that resulted in the victim suffering serious and permanent brain damage, and left him frankly close to being a vegetable.
[35] These are obviously considerably more egregious circumstances than are present here notwithstanding that the wounds sustained by Andrew Burnett were serious, and potentially life-threatening or could have been, if the sharp edged weapon had come any closer to cutting life-sustaining arteries or veins. As it is, the wounds of Mr. Burnett almost appeared to have been designed to not be excessively deep, and to serve as a continual reminder to him of whatever it was that had transpired between himself and these four assailants, or one or more of them, that served as the motive for the assault they committed against him that Saturday morning in January.
[36] So finally, I return to the guidance provided by Code J. in R. v Tourville at paras. 28 to 30 which would suggest that Mr. Sadykov ought to be sentenced at the top of the range, which in that case Justice Code delineates at four to six years. Justice Code describes the midrange of cases where high reformatory sentences have been imposed of between eighteen months and two years less a day as cases involving first offenders or generally containing some elements suggestive of consent fights, but where the accused resorted to excessive force. Clearly that is not the circumstance here. Rather, this is a case that falls at the high-end of the range as Code J. describes it, where four to six years of imprisonment have been imposed. Such cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence. It is plain in this case that the assault perpetrated against Andrew Burnett falls into the high range, and in accordance with Code J.'s description, notwithstanding the cases put forward by Mr. Fraser which reflect sentences of between seven and nine years, it seems clear that the bottom of the range is four years, and that six years would typically be the top of the range, although I accept that that might be increased in circumstances such as these.
[37] As I have made plain in my Reasons for Judgment and in these Reasons for Sentence of Sadyk Sadykov, this is a very serious offence. Just because this is an assault that takes place between inmates in a correctional institution does not mean that it is less serious than it would be if it had taken place on the street, or in this courthouse, or somewhere else outside of a custodial corrections environment.
[38] It is very important that sentences for offences such as these emphasize denunciation and deterrence generally and specifically to the offender. The cases the Crown has put forward relative to the sentence sought against Mr. Sadykov as a principal shows that the sentences that have been imposed for several such assaults against fellow inmates perpetrated in a correctional systems environment, in this province, have ranged from six to nine years, although there have also been sentences of considerably less severity also imposed in seemingly very serious circumstances as reflected in the materials and case law filed by the defence.
[39] Crown counsel emphasized as well that that sentence ought to be consecutive to whatever sentence the offender is serving at that time that causes him to be in the corrections facility where the inmate assault takes place. While it is true that the cases that the Crown has put forward all reflect sentences imposed consecutive to the existing sentence being served by the offender, however, I do not believe that to be an appellate directive that such sentences must always be consecutive, particularly where the imposition of a significant potential sentence, combined with the predicate offence, would offend the principle of totality.
[40] The simple reality is that section 718.2 of the Criminal Code stipulates that in imposing a sentence, I am required to take into consideration that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh. As Clayton Ruby describes in his seminal text on sentencing[^1], the totality principle is a particular application of the general principle of proportionality, and it requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. Expressed in a different way, the proposition is that a sentence must not be crushing to a particular accused given his age, circumstances and prospects. A sentence should always be in keeping with the offender’s record, but also taking account of his future prospects. Ultimately, it requires me to be satisfied that the sentence I am imposing today is just and appropriate.
[41] Here there are two prior sentences currently being served by this offender and the present duration of those sentences is ten years. In seeking a sentence of eight to nine years consecutive, Crown counsel effectively asks that Mr. Sadykov be imprisoned for a length of time that is consistent with sentences for second-degree murder. While the offences that he has committed are unquestionably serious, in my view, to impose a sentence of that duration on top of the existing sentences being served by this offender would indeed be unjust, inappropriate and crushing. Nevertheless, I have concluded that the fit sentence for this particular crime, having regard to the case law put forward and the fact that the correctional facility cases all involve offenders and offences that appear to me, at least, to be more egregious in seriousness than the offence perpetrated here, is a sentence of five years’ imprisonment.
[42] Even there, however, the addition of a five-year sentence on top of the existing ten years he is serving would, in my view, continue to be unjust, inappropriate and crushing. While he needs to recognize that he is being sentenced with a serious sentence, and there can be no doubt that a sentence of five years is a serious sentence, little is served other than to crush this offender and delay or prevent rehabilitation by mounding on numerous consecutive years of imprisonment to be served. As such, while I have determined that a sentence of five years is fit in these circumstances, it will be served in part consecutive to his existing sentences, and in part concurrent.
[43] As a primary designated offence, however, as noted above, there is no dispute that Mr. Sadykov will provide a DNA sample and he will be subjected to a section 109 weapons prohibition order for life.
[44] Mr. Sadykov, would you please stand up.
[45] For the foregoing reasons, I have determined that an appropriate sentence to impose upon you for this pre-meditated and plainly vicious assault against Andrew Burnett is a sentence of five years’ imprisonment. I have determined, however, that two and a half years of that sentence will be served consecutive to your existing sentences, and two and a half years concurrent.
[46] I hope that you will use this time to consider carefully your future direction. I do not suggest these are light sentences that you are serving. In imposing a significant sentence on you today that sharply expresses our society’s denunciation of your conduct, and hopefully conveys the strong message that inmates in Canadian correctional facilities are entitled to be protected against such dangerous conduct, I am nevertheless also recognizing and expressing my hope that you can find a positive way forward, that you will ultimately be released from the correctional facilities where you must serve these sentences, and that, with the support of your family, and hopefully a determination to avoid the bad choices that you have made previously in your life, you will be able to move forward and be a productive member of Canadian society. I wish you well in that endeavor.
Michael G. Quigley J.
Released: April 1, 2016
CITATION: R. v. Sadykov, 2016 ONSC 1660
COURT FILE NO.: CR-15-30000418-0000
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
SADYK SADYKOV
Defendant
REASONS FOR SENTENCE
M. G. Quigley J.
Released: April 1, 2016
[^1]: Ruby, Clayton C., Gerald J. Chan and Nader R. Hasan. Sentencing, 8th ed. Markham, Ont.: LexisNexis, 2012.