Court File and Parties
COURT FILE NO.: CR-15-30000606-0000 DATE: 03/24/2017 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Emilio Georgiev Applicant
Counsel: Thomas Pittman, for the Crown Jaki Freeman, for Emilio Georgiev
HEARD: January 16, 2017
REASONS FOR SENTENCE
Carole J. Brown, J.
Overview
[1] Mr. Emilio Georgiev was found guilty after trial by jury, of robbery, contrary to section 343 (b) of the Criminal Code of Canada; assault causing bodily harm, contrary to section 267 (b); aggravated assault, contrary to section 268(1); uttering a threat to cause death contrary to section 264.1(1) (a) and possession of a weapon for a purpose dangerous to the public peace, contrary to section 88(1).
Circumstances of the Offence
[2] The victim of the offences, Mr. Brian Arthur, was born legally blind and, lost all sight by the age of 20. He was educated through grade 11 at the Brantford School for the Blind and entered mainstream high school for grade 12. He continued at the University of Windsor graduating with honours in kinesiology. He holds a full-time job with American Express and owns his own home.
[3] He had participated in sports from an early age and was inducted into the Hall of Honour for goalball by the Ontario Blind Sports Association. After work on April 24, 2015, he had joined his goalball team for a 7 PM game. The group then went for dinner and drinks nearby. They left around 11:30 PM and he took the 116 bus to Morningside at Beath Street from where he would walk to his home. He had travelled the same route many times without any problem. He disembarked the 116 bus at 12:46:16 AM at the Southeast corner of Morningside at Beath Street.
[4] As he was walking up Beath Street, his CNIB cane lightly tapped a vehicle parked in the street as he was making his way home. Because he holds the cane lightly, it dropped to the ground and he rested his hand on the car for balance and bent over to pick up the cane. A male voice thereafter demanded to know what he was doing touching his car. He apologized indicated that he had not seen the car and told the male voice to have a good morning. He continued to walk on when, suddenly, his throat was slashed. Thereafter, the male demanded money for damage to the car, threatened to stab him and then demanded his wallet. Afterward, the man returned and took his CNIB cane, leaving him without a navigational tool to find his way home.
Circumstances of the Offender
[5] Mr. Georgiev was born September 18, 1992 and is currently 24½ years old. At the time of the offence, on April 25, 2015, he was 22 years old.
[6] Based on the Pre-Sentence Report ("PSR”), and the record of criminal offences, Exhibit 2, he has, since the commission of this offence, been found guilty on September 16, 2015 of Fraud Under and was sentenced to 120 days in jail and 18 months’ probation. He was further found guilty on November 25, 2016 of FTC Recognizance and was sentenced to one day in jail and two years’ probation. Prior to the offences which are the subject of this sentencing, he was also found guilty of the following in Youth Justice Court: on April 7, 2010, of Assault for which he received nine months’ probation; on June 21, 2010 for Uttering Threats and Fail to Comply with Disposition pursuant to section 137 of the YCJ Act for which he received 12 months probation on each charge concurrently, and concurrently with probation serving; on July 15, 2010, Possession of a Schedule II Substance for the purpose of Trafficking, Failure to Comply with Recognizance and possession of a Scheduled Substance contrary to section 4(1) of the CDS Act with probation of two years on each charge concurrentlyly. Further, as an adult, he was convicted of the following: on September 25, 2012, of Assault for which he received a conditional discharge and 24 months’ probation; on January 4, 2013, the offence of Cause disturbance-fight scream for which he received a conditional discharge and nine months’ probation; on May 17, 2013, three counts of FTC Recognizance for which he received a sentence of 30 days jail and 32 days intermittent sentence; on May 24, 2013 two counts of Assault for which he received 16 days jail and 12 months’ probation; on January 7, 2014, one count of FTC Probation for which he received a fine and one year probation; and on August 20, 2014 Assault, for which he received 14 days intermittent and 12 months’ probation. Thus, he was convicted of four counts of assault from 2010 to 2014, prior to the aggravated assault in this matter.
[7] According to the PSR, as regards the offences committed April 25, 2015, despite his indication to the author of the PSR that he feels deeply sorry about what occurred to the victim in the matter, he asserted that he is innocent of the offence. He declined to speak further with the author of the PSR about the case on advice from his lawyer. He emphasized to the author his preparedness to comply fully with a term of community supervision, if deemed suitable, or as ordered by the Court.
Impact on the Victim
[8] Mr. Arthur provided a Victim Impact Statement, which was read by Crown counsel.
[9] Mr. Arthur stated that following the assault and robbery, he had largely been able to manage the impact due to two essential decisions he made. First, to call 911, report the crime and to give as full and accurate an account of events as he could to allow the police services and the legal system to carry out their roles. Second, he chose not to victimize himself but decided to do whatever it took to maintain his normal lifestyle and routine, and to continue to do the things he wanted to do. He forced himself to resume his normal activities.
[10] However, he has not been able to convince himself to disembark the bus or to use the bus stop at Morningside and Beath Street, nor to take the back street route to his home. From time to time, his body will tense up when he hears about a violent crime on the news.
[11] Certain things cause him to relive the incident, such as touching the scar on his throat when he is shaving in the morning. He sometimes still has feelings of vulnerability when he is travelling and gets too near to someone he perceives to be unstable, such that he becomes very cautious around them.
[12] Moreover, he stated that, as much as the crimes have impacted him, they have also impacted the blind community and the larger disabled community in Toronto, which have been deeply affected by this incident and are concerned regarding their safety in public.
Position of the Crown
[13] It is the position of the Crown, that, in the circumstances of this case, the overriding principles of sentencing should be denunciation and deterrence.
[14] It is the position of the Crown that the case involves shocking acts of cruel, callous and wanton criminality, serious violence causing bodily harm and gratuitous threats of harm with a weapon upon a vulnerable member of the community. He seeks a sentence that will be a denunciation of these crimes and will specifically deter Mr. Georgiev and others from such acts, which prey upon vulnerable members of our society.
[15] He notes that these acts were committed while Mr. Georgiev was on bail.
[16] As regards these crimes, he maintains that such cruel, violent acts upon a member of a vulnerable community must be denounced in the strongest of terms.
[17] He submits that in determining the sentence, the aggravating factors must be considered and, in this regard, emphasizes, as aggravating factors, that Mr. Georgiev was on bail when the crimes in question were committed, that a weapon was used and that he had had a prior history of crimes of violence having been convicted of assault on several occasions, as well as fraud and also numerous offences against the administration of justice, including numerous breaches of bail and probation.
[18] He seeks a sentence of 10 to 12 years less credit for time already served in pretrial custody, calculated at 1.5, as well as orders pursuant to sections 109(1) for life and 487.051(1). As regards the term of sentence, he relies on the cases of R v Kanthasamy et al, 2005 CarswellOnt 2714; R v Pangan, 2014 ONCJ 327; R v Wallin, 2003 BCSC 809; R v Riach, 2006 BCPC 597.
Position of the Defence
[19] It is the position of Ms. Freeman, counsel for Mr. Georgiev, that for this type of offence, a 2 to 4 year sentence would be appropriate, but that in this case, a sentence equivalent to time served would be sufficient. Time served is estimated to be two years at 1.5 for 1. She also seeks enhanced credit of six months for the conditions Mr. Georgiev experienced in pretrial incarceration, which I will address below.
[20] Ms. Freeman submits that the Crown has placed too much emphasis on the aspect of denunciation. She emphasizes that Mr. Georgiev is a young man and a long sentence would not permit reintegration into society. She argues that he has only served short periods of time in jail in the past and has been given probation. In this regard, she raised the “step principle”. She argues that 10 to 12 years would be more akin to a sentence one would receive for murder.
[21] While she acknowledged the aggravating factors, particularly that Mr. Georgiev, at the time of the crimes committed, had a criminal record and that, while he was on bail, he slit the throat of a blind person, she submitted that this was not a premeditated act and there was no permanent physical injury. Further, she emphasized that one must consider the mitigating factors.
[22] Ms. Freeman emphasized the mitigating factors, as set forth in the PSR, including the fact that Mr. Georgiev has a supportive family and fiancée. He graduated high school, has a trade and has displayed good work habits.
[23] As regards the case law, she distinguished the cases relied upon by the Crown. She relied upon the following case law for her recommendation of 2 to 4 years sentence: R v Richter, 2013 BCSC 602; R v Sarjoo; R v Wickham, 2015 ONSC 1544; R v Silva, 2016 ONSC 2254.
[24] The defence submitted that, based on the conditions of incarceration during Mr. Georgiev’s pretrial custody, he should be credited with six months enhanced credit. The incarceration summary for Mr. Georgiev for the period April 26, 2015 through February 2, 2017 was introduced as Exhibit 4 on the sentencing hearing. It indicated that there had been an incident on August 27, 2015 when Mr. Georgiev was assaulted by two other inmates; that he was cleared to be released from segregation on August 31, 2015 but requested to stay in segregation until May 6, 2016 when he was released from segregation. He was thus in segregation at his own request for 248 days. According to the summary, he was housed alone in a cell for 193 nights, with one inmate for 356 nights and with two inmates for 100 nights or 15.41% of his incarceration. During his incarceration there were lockdowns as follows: due to staffing levels, all day for eight days, from 6 PM to 9 PM on 90 days, from 1 PM to 9 PM on nine days, from 1 PM to 4 PM on two days and, due to searches, from 9 AM to 11 AM on three days and 9 AM to 3 PM on one day.
[25] Mr. Georgiev testified as regards the conditions of his incarceration. As regards the assault, he indicated that he had sustained a laceration above the eye, and was thereafter segregated for four days. While he was cleared to be released from segregation, he chose to remain in segregation at his own request, testifying that he did this for his own safety. In segregation, he was on 24 hour lockdown, with a shower every other day if an officer was available and fresh air once per month. Telephone access was limited.
[26] In regular custody, when there were lockdowns, there would be no showers, no yard time, no access to the laundry and no visits.
[27] He testified that when he shared a cell with two other inmates, there were only two beds, such that, right after being released from segregation, it was he who slept on a mattress on the floor, and he would have to sleep with his head two feet from the toilet.
General Sentencing Principles
[28] The fundamental purpose of sentencing, as set forth at section 718 of the Criminal Code of Canada, is to protect society and to contribute, along with crime intervention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sentences that have one or more of the following objectives:
(a) to denounce unlawful conduct in the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[29] The fundamental principle of sentencing pursuant to section 718.1 is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Further, in imposing a sentence, consideration must be taken of the principles set forth in section 718.2.
Aggravating and Mitigating Factors
Aggravating Factors
[30] There are significant aggravating factors in this case. The offences were committed with a knife in a violent and callous manner without provocation.
[31] Mr. Georgiev took advantage of a vulnerable member of our society who is blind. He not only robbed him of his wallet but slit his throat and subsequently, and inexplicably, stole his CNIB cane, which serves as Mr. Arthur’s navigational aid for walking and directing himself around the city. A CNIB cane would be of no use to the robber and the taking thereof was a completely gratuitous act.
[32] He had a criminal record, including a number of assaults, fraud and offences against the administration of justice over a period of five years prior to the offences in question here. The offences here were committed while he was on bail.
[33] He had in the past, experimented with drugs, including cocaine, but no longer uses them according to the PSR. He drank 6 to 8 beers at a time but this was not indicated to be an issue.
Mitigating Factors
[34] According to the PSR, he was the product of a supportive family where traditional values were taught. He appeared to have good family support and is close to them. He also has good support from his fiancée.
[35] According to the PSR, he has a good work ethic and was employed in full time work with a roofing company while he was on probation.
[36] He had completed in-custody study and, previously, had completed a Partner Assault Response program and anger management counselling prior to the commission of the crimes in question here and the assault on Mr. Arthur.
Analysis and Conclusions
[37] Each sentencing case differs and each offender must be sentenced based on the particular offence or offences that he or she committed. However, other cases, such as those cited by counsel for the Crown and defence, are of assistance in determining an appropriate range of sentence for similar offences and offenders, in conjunction with consideration for the sentencing objectives to be considered. Sentencing cases involving violent assaults with weapons emphasize the predominant sentencing objectives of denunciation, deterrence and the protection of the public.
[38] In this case, Mr. Georgiev was found guilty by a jury of his peers on the five counts charged. The offences carry varying maximum sentences as follows: possession of a weapon for a purpose dangerous to the public peace (section 88(1)) carries a maximum penalty of 10 years; threatening to cause death (section 264.1(1)(a)) carries a maximum penalty of five years; assault causing bodily harm (section 267(b)) carries a maximum penalty of 10 years; aggravated assault (section 268 (1)) carries a maximum penalty of 14 years; and robbery (section 343 (b)) carries a maximum sentence of imprisonment for life.
[39] Predominant sentencing objectives in this manner are, in my view, denunciation, deterrence, protection of the public, and the promotion of a sense of responsibility of the offender for the harm done to the victim and the community.
[40] I have considered Mr. Georgiev’s age and the objective of rehabilitation. I have considered that, in determining a sentence, consideration must be had for a sentence that constitutes the minimum necessary intervention that is adequate to the circumstances. In my view, the offences in this case are of a significantly serious nature that they require a substantial sentence in order to achieve the objectives of denunciation, deterrence and protection of the public.
[41] In this case, I am of the view that the assault with a weapon and robbery on Mr. Arthur were violent and that wanton callousness was shown.
[42] I have considered the mitigating factors and particularly that Mr. Georgiev appears to have good support from his family and fiancée, has a good work ethic, and has goals for the future. At the same time, I have considered the aggravating factors, including the violent nature of the assault, the callousness displayed, including the fact that he took advantage of a vulnerable member of our society, slit his throat, robbed him, and then, also stole his CNIB cane, which was of no use to him. I have further considered that these brazen acts were committed while he was on bail.
[43] In this case, there is a need for strong specific deterrence and a strong message of general deterrence to express society’s abhorrence of this despicable conduct.
[44] While Mr. Georgiev had previously been treated more leniently as regards previous assaults, and breaches of bail and probation, it appears that he has not learned from his past encounters with the criminal justice system and has not rehabilitated himself, given these latest crimes. Nor does he acknowledge responsibility for these acts.
[45] The Defence and Crown diverge in their views of an appropriate sentence. In my view, taking into account all of the foregoing, and the sentencing objectives in this case, I am of the view that an appropriate sentence is seven years less credit for pretrial custody, of 771 days credit, calculated at 1.5 for 1.
[46] As regards enhanced credit, I am guided by the decision the Court of Appeal in R v Duncan, 2016 ONCA 754. At paragraph 6 of that decision, the Court of Appeal stated as follows:
On our reading of the trial judge’s reasons, we agree with counsel. The trial judge effectively held that any credit or consideration in relation to presentence incarceration was capped at the 1.5 limit. We agree with counsel that in the appropriate circumstances, particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in section 719(3.1). In considering whether any enhanced credit should be given, the court will consider both the conditions of the presentence incarceration and the impact of those conditions on the accused. In this case, there was evidence that the appellant served a considerable part of his presentence incarceration in “lockdown” conditions due to staffing issues in the correctional institution. There was, however, no evidence of any adverse effect on the appellant flowing from the lockdown conditions. Indeed, some of the material filed on sentencing indicates that the appellant made positive rehabilitated steps during his presentence incarceration.
[47] I note that, following the assault, Mr. Georgiev remained in segregation for 243 days of his own volition. He was in 24 hour lockdown in regular custody for 100 days or 15.41% of his time in custody. Such conditions are not to be condoned. However, based on R v Duncan, supra, and the evidence given by Mr. Georgiev, there was no evidence of any adverse effect on him flowing from the conditions of incarceration. Accordingly, I do not find, in the circumstances of this case, that enhanced credit should be given.
[48] Accordingly, Mr. Georgiev is sentenced to 7 years less 771 days. In addition, I make a firearms and weapons prohibition order pursuant to section 109(1) of the Criminal Code for life and a DNA order pursuant to section 487.051(1) of the Criminal Code.
Carole J. Brown, J.