Her Majesty the Queen v. Pietro Silva, 2016 ONSC 2254

Court File and Parties

CITATION: R. v. Silva, 2016 ONSC 2254

COURT FILE NO.: CR-14-50000769-0000

DATE: 20160401

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Pietro silva

Defendant

Katherine Rogozinski, for the Crown

Setu Purohit, for the Defence

HEARD at Toronto: April 1, 2016

Reasons for Sentence

Low J. (Orally)

Overview

1After a trial by judge alone on a charge of attempted murder, Mr. Silva was found guilty of an aggravated assault. The date of the offence was August 31, 2013. The victim was his kinsman by marriage and the weapon used was a machete which Mr. Silva kept in his home. The victim sustained significant injuries but survived the assault. He has permanent scarring to the head and hand and has psychological sequelae which would be expected following an attack of the kind that occurred. He appears however, to be able to function.

Positions of the Parties

2The Crown is seeking a sentence of 4 to 5 years. Defence submits that the appropriate sentence is in the reformatory range followed by a period of probation. The upper range for an offence of aggravated assault is agreed to be 4 to 6 years.

3The central principles and purposes of sentence in the circumstances at bar are denunciation and deterrence.

Circumstances of the Offender

4Mr. Silva was born in 1982 in Uraguay and immigrated to Canada as a child. He has a criminal record of four convictions of which two are for assault. I note that those convictions are somewhat distant as they date from 2000 and from 2002. On the first conviction which was in youth court, Mr. Silva received 12 months’ probation and on the second conviction he received 15 days plus 2 years’ probation. Mr. Silva was 30 years old at the time of the offence for which he is now being sentenced.

5The pre-sentence report is generally positive. Although his father was deported to Uraguay when Mr. Silva was a young boy, he has had a supportive and loving upbringing by his mother and stepfather. He is in a stable marriage and is a home owner together with his wife. There are no children at present, but plans for children in the future. The interviewees describe Mr. Silva in positive terms and opine that the incident leading to the conviction was out of character. Although not taking responsibility for his actions and the harm he has caused, Mr. Silva has expressed regret that Mr. Persad was injured.

6Mr. Silva has been gainfully employed throughout his adult life and substance abuse does not appear to be an issue. There is therefore good reason to believe that Mr. Silva has the potential for rehabilitation, especially if he takes steps to address his anger issue.

7Mr. Silva is a type I diabetic and his family members indicate that when his blood sugar levels spike, he appears to experience personality changes. There is no medical evidence, however, suggesting that the incident leading to the conviction was related to any medical condition. I am, however, cognizant of the lowered life expectancy experienced by type I diabetics and in sentencing this individual I take it into account as a mediating factor.

8There are, in my view, no aggravating circumstances.

Review of Case Law

9I have been referred to a number of decisions by counsel imposing sentences both at the high end and at the low end of the range.

10Defence argues that a reformatory sentence in the range of 18 to 24 months with a period of probation following would be a fit sentence in the circumstances. I have been referred to R. v. Tourville, 2011 ONSC 1677 where a sentence of 21 months with 2 years’ probation was given, to R. v. Moreira, 2006 9709, where a sentence of 21 months plus 3 years’ probation was given, R. v. Basilio, 2003 15531 where 2 years less a day plus 2 years’ probation was given, R. v. Panchan and Lopes, 2013 ONSC 5567 where a party participant was sentenced to 6 months, and, in particular, to R. v. Charles, 2011 ONSC 3034 where 18 months plus 2 years’ probation was given.

11In my view, none of the foregoing decisions are of particular assistance in the circumstances before me.

12R. v. Tourville arose from a consent fight in a bar and a relatively young offender in respect of whom the Gladue principle applied.

13Jones did not arise from a consent fight but it did involve an offender to whom Gladue applied. The issue on appeal was whether the trial judge had given effect to the Gladue factor. Affirming the reformatory sentence imposed at trial, the court of appeal noted that the trial judge had opined that a prison sentence would otherwise have been appropriate in the circumstances.

14Basilio also arose out of a bar room brawl, and the court of appeal remarked that the sentence was lenient although not manifestly unfit.

15Moreira arose out of an extended altercation at a public picnic. The offender was challenged to a fight by the victim. The accused was youthful and had no criminal record

16In Charles, the offender was a first time offender with a positive background. The incident took place in the context of a long standing verbal dispute between the complainant and the offender that escalated into the stabbing that resulted in the conviction. The trial judge treated the defendant’s immigration status as a mitigating factor (see para, 7). The defendant was a landed immigrant from Grenada who would face a deportation order as a result of the conviction and if he were to receive a sentence of over two years, he would not be entitled to appeal the deportation order.

17I note that the legislation in place at the time of the sentencing in Charles is no longer relevant as the appeal regime has changed. Second, the Crown in Charles sought a sentence of 2 years less a day plus 2 years of probation.

Analysis

18Mr. Silva is not a first time offender. Nor was he a youthful offender at the time of the offence. Unlike the defendants in Tourville and Jones, he is not a person to whom the Gladue principle applies. Most significantly, the offence does not arise out of a consensual fight. There were not, in the circumstances described by the complainant and which I accepted, the indicia of an attack made in the heat of the moment in the context of an ongoing struggle. To the contrary, the attack on Mr. Persad was vicious, coming from behind, and bore the marks of a degree of premeditation. In the circumstances of this offender and this offence, I do not accept that a reformatory sentence would be fit and adequate to denounce the defendant’s actions and to deter both him and others.

19I have been referred to R. v. Helpert [2013] O.J. No. 5510, 2013 ONSC 7469 which involved a wounding to the head inflicted with a machete taken out of the trunk of the defendant’s car in the context of angry words exchanged outside a bar concerning the way he parked his car. The victim suffered a five inch laceration in her head which required stitches to close. It was fortuitous that the injuries were not significantly more grave. The defendant was heavily under the influence of alcohol. A guilty plea was entered by the defendant who was 59 at the time of the incident. He had no past record of assaultive behaviour, his only prior conviction being 24 years prior for impaired driving. In addition, the defendant suffered constant pain from a disabling work accident and was on both psychotropic and analgesic medication, the dosage of latter having been doubled the day prior to the incident. At the time of arrest, the defendant expressed suicidal thoughts.

20Noting that while alcohol played an important role in the conduct, the attack was not a spontaneous one. My brother Speyer J. imposed a sentence of 3 years in Helpert, taking into account restrictive bail terms over a long period (some 4 years).

21While there is a similarity in the actions of the defendant in leaving the complainant and going to get the weapon with which the attack was made, none of the mitigating factors in Helpert are present here.

Conclusion and Sentence

22In my view, given the viciousness and cowardliness of the attack, coming as it did from behind, the multiple wounds and the effect the attack has had on the victim’s person as well as his world view and sense of security, an appropriate sentence is four years.

23I have given consideration to the terms of bail. There was initially a period of 13 months of house arrest followed by curfew. There were exceptions to house arrest permitting the defendant to go to work and also to be out of the home if with a surety. No evidence was led as to the practical effects of the bail terms. I am not persuaded that the sentence should be diminished on account of bail terms. There were, however, 6 days of pre-trial custody for which 9 days will be deducted from his prison term.

24There will be a lifetime weapons prohibition under s. 109 of the Code and a DNA harvesting order as this was a primary offence

___________________________ Low J.

Oral Reasons for Sentence: April 1, 2016