COURT FILE NO.: CR-16-10000760-0000 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – NEDELJKO MIKASINOVIC

Marnie Goldenberg, for the Crown Chris Murphy, for Nedeljko Mikasinovic

HEARD: April 18, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON sentencing

1. Overview

[1] In the early morning hours of June 22, 2013 Nedeljko Mikasinovic threw two punches at Tim Runge. Mr. Runge suffered a serious head injury. Mr. Mikasinovic was tried on an indictment containing one count of aggravated assault. A jury convicted him of the included offence of assault causing bodily harm. He now comes before this Court for sentencing.

2. The Facts

(a) Circumstances of the offence

[2] During the evening of June 21-22, 2013 Tim Runge was out with his friends Aruf Nath, Marc Casaponsa, and Marc’s friend family Ida from Spain. At around 2:00 am on June 22, 2013, after a night of partying and dancing, they were walking up Spadina Road in front of Swatow Restaurant, just south of D’Arcy Street. It was there that they ran into Mr. Casaponsa’s friend Esra Genc, her boyfriend Marc Weizenberg, and Ms. Genc’s friend Kunny Ma.

[3] The same night, Nedeljko Mikasinovic was out with his girlfriend, a business associate, Vasilios Panagiotakopoulos, and Mr. Panagiotakopoulos’s then fiancée, Natalia. After a night out they stopped at Swatow Restaurant on Spadina Road. They came out some time after 2:00 am. They got into Mr. Panagiotakopoulos’s car. He was in the driver’s seat. Natalia was in the front passenger seat. Mr. Mikasinovic was behind her in the rear passenger seat, with his girlfriend behind Mr. Panagiotakopoulos.

[4] Mr. Casaponsa and his friends were standing on Spadina Road behind Mr. Panagiotakopoulos’s car. Mr. Panagiotakopoulos moved the car backward and touched Ms. Genc’s leg. Mr. Casaponsa reacted and said words to the effect of “watch where you’re going.” He banged on the car. He went to the passenger side window to deliver a message of “watch out”. I find that Mr. Casaponsa likely did touch the car with some force and that he likely yelled at the driver. That is consistent with the evidence of Dr. Weizenberg, who I find was the most accurate and neutral witness at the trial.

[5] Mr. Mikasinovic immediately exited the car. The evidence is in dispute about whether he was immediately aggressive and hostile. Mr. Panagiotakopoulos testified that Mr. Mikasinovic said: “oh my God, What happened?” He got out of the car to check to see if anyone was injured. Natalia Panagiotakopoulos testified that Mr. Mikasinovic turned around to see if anyone was hurt. It is unclear how she would know that as she was facing in the opposite direction. He got out of the car and said something like “why did you hit the window?” She said it was terrifying. Mr. Mikasinovic says that he got out of the car to investigate and make sure that nobody was injured. He says he was set upon and reacted defensively.

[6] All the other witnesses testified that Mr. Mikasinovic was angry and aggressive when he got out of the car. Ms. Genc and Dr. Weizenberg both testified that he got out and began yelling something along the lines of: “don’t touch the fucking car”. Mr. Casaponsa testified that Mr. Mikasinovic was immediately hostile.

[7] Two video cameras pointed at Spadina Avenue captured many of the events that night. I set them out here (the times are not synchronized):

SWATOW RESTAURANT ENTRANCE CAMERA:

TIME EVENT 2:28:41 Mr. Runge, Mr. Casaponsa, Mr. Nath, and Ida walk by Swatow Restaurant 2:29:08 Mr. Casaponsa is in front of Swatow restaurant with his friend Ms. Genc. 2:29:27 Mr. Runge comes back into the video in front of Swatow Restaurant. 2:30:19 Mr. Runge starts to ride his bicycle north on Spadina. 2:31:00 Mr. Nath and Ida begin to walk north on Spadina. 2:32:25 Mr. Mikasinovic’s party begins to exit Swatow Restaurant. 2:32:55 Mr. Panagiotakopoulos’s car begins to move backwards 2:33:14 Mr. Mikasinovic is out of the car, facing it. He is moving slowly backwards, then shortly begins to move forward back towards the car. 2:33:20 Ms. Ma faces Mr. Mikasinovic, pointing at him. 2:33:22 Mr. Runge can be seen walking towards where Mr. Mikasinovic is facing the Ms. Ma and Ms. Genc. 2:33:24 Ms. Genc attempts to get between Mr. Mikasinovic and Ms. Ma. 2:33:26 Mr. Mikasinovic begins moving backwards quickly. There is no one near him on the sidewalk. To his left are the two women. 2:33:28 Mr. Mikasinovic moves towards Mr. Runge, and starts to raise his fists. 2:33:29 Mr. Mikasinovic takes a punch with his right hand. It is unclear from the video whether he actually lands this punch on Mr. Casaponsa. 2:33:30 Mr. Mikasinovic begins to move back, then moves back towards the car, where Mr. Runge is standing. Nobody is attacking him. 2:33:33 Mr. Mikasinovic takes a punch with his right hand. He begins to move back, with his fists in front of him. 2:33:37 Mr. Mikasinovic begins to move towards Mr. Runge. 2:33:39 Mr. Mikasinovic begins to move out of the video. Only his lower half is visible. Others start to move towards where Mr. Runge and Mr. Mikasinovic have moved. 2:33:43 Mr. Mikasinovic begins to walk away.

CORNER OF D’ARCY AND SPADINA CAMERA:

TIME EVENT 2:16:41 Mr. Nath and Ida are at the corner of D’Arcy Street and Spadina Road. 2:18:25 Mr. Nath looks back towards Mr. Panagiotakopoulos’s car. 2:18:41 Mr. Nath looks back again towards Mr. Panagiotakopoulos’s car. 2:18:56 Mr. Runge appears in the video walking at a normal pace from D’Arcy Street towards Panagiotakopoulos’s car. He slows down where Mr. Nath is standing and then walks at a slightly faster pace. 2:19:02 Mr. Runge disappears out of the video. 2:19:06 Mr. Mikasinovic’s foot appears in the video moving backwards. He then moves forward. 2:19:09 Mr. Mikasinovic moves backwards towards where Mr. Nath is standing. 2:19:10 Mr. Mikasinovic moves aggressively towards Mr. Panagiotakopoulos’s car and out of the video. This appears to be when he takes the first punch. 2:19:14 Mr. Mikasinovic moves backwards again towards where Mr. Nath is standing, and then moves aggressively back again towards Mr. Runge. His hands are up. He punches Mr. Runge. 2:19:15 Mr. Mikasinovic pursues Mr. Runge, who is moving backwards away from Mr. Mikasinovic. Mr. Runge puts his hand up to block Mr. Mikasinovic. 2:19:16 Mr. Mikasinovic punches Mr. Runge in the head. 2:19:17 Mr. Runge falls to the ground. Mr. Mikasinovic walks away.

[8] For reasons I will discuss in a moment, I do not accept that Mr. Mikasinovic acted in self-defence at any time. I do find he was immediately hostile and aggressive throughout.

[9] The jury apparently rejected the testimony of Ms. Panagiotakopoulos that she was in fear for her life. I agree. I also reject the testimony of Mr. Panagiotakopoulos, as did the jury, that Mr. Mikasinovic got out of the car and was surrounded by a hostile crowd and attacked by two larger men. Their evidence was plainly exaggerated and contrived to help Mr. Mikasinovic. They undoubtedly colluded with each other. Ms. Panagiotakopoulos claimed to be worried that the crowd might murder Mr. Mikasinovic but she didn’t bother to call the police. She was in medical school at the time and working in an emergency room but didn’t get out to help Mr. Runge, although she saw him seriously injured right in front of her. Mr. Panagiotakopoulos took off to leave his friend to face the supposedly murderous crowd alone.

[10] I accept the evidence of the other witnesses that Mr. Mikasinovic was hostile and aggressive from the moment he got out of the car. Dr. Weizenberg testified that Mr. Mikasinovic confronted Mr. Casaponsa and pushed him. That is consistent with the explosive violence that he displayed only seconds later.

[11] Ms. Ma and Ms. Genc tried to get between Mr. Mikasinovic and Mr. Casaponsa. It is true that Mr. Mikasinovic did not physically push Ms. Genc and Ms. Ma. They were much smaller than him, and Mr. Casaponsa is much slighter. It is obvious from the video that he felt no threat. At no time did Dr. Weizenberg, who is a larger man, ever confront Mr. Mikasinovic or even move towards him. Mr. Runge then came in. I find on the whole of the evidence that he attempted to defuse the situation. Something of a shoving match then ensued between Mr. Mikasinovic and Mr. Runge. Mr. Mikasinovic threw a punch at Mr. Casaponsa, which either did not land or landed only minimally; he then threw two punches at Mr. Runge. The first landed and threw Mr. Runge off-balance. He staggered backwards. The second punch landed square on Mr. Runge’s head. He collapsed.

[12] I do not accept that Mr. Runge was the person who began pushing although he did intervene between Mr. Casaponsa and Mr. Mikasinovic. That said, Mr. Runge did not display an aggressive demeanor that night. The person who chose to get out of the car, to aggressively confront the people on the street, and then throw a series of punches was Mr. Mikasinovic.

(b) The Claim of Self-Defence

[13] Mr. Mikasinovic testified at trial that he was in fear for his life. He thought a hostile crowd surrounded him. He says that he believed he was under attack. He didn’t know, he said, that Mr. Casaponsa marketed chocolate, that Dr. Weizenberg was a dentist, that Mr. Naf was a neuroscientist, and that Mr. Runge was a publisher.

[14] Mr. Murphy acknowledges that the jury rejected Mr. Mikasinovic’s claim of self-defence. He argues, however, that it is open to me to find that Mr. Mikasinovic’s first two punches were taken in self-defence, and it is only the third punch, the one that seriously injured Mr. Runge, that constituted the offence.

[15] I respectfully disagree. The jury in this case did not accept Mr. Mikasinovic’s account of self-defence. Neither did I. I found his account to be contrived, theatrical and insincere. He was not in fear at any time. I find that none of the punches he threw that night were in self-defence. He chose to escalate the confrontation.

[16] I am bound by the express and implied findings of the jury. Where it is unclear what the jury decided I must make my own findings of fact where it necessary for the determination of sentence: Criminal Code, s. 724; R. v. Punko, 2012 SCC 39 at paras. 11-12. I do have something of a dilemma, as Mr. Murphy correctly pointed out, because I was not present at the first trial where Mr. Mikasinovic was acquitted of assaulting Mr. Casaponsa. I obviously am not in a position to determine the express or implied findings of that jury. I do, however, have the same videos. I also have inconsistencies from the first trial and the preliminary inquiry where they were put to the witnesses.

[17] It is not logically necessary for me to find that the previous jury acquitted Mr. Mikasinovic of the assault on Mr. Casaponsa on the basis of self-defence: R. v. Punko, supra, at para. 8. Based on the evidence I do have I find that Mr. Mikasinovic either did not make contact with Mr. Casaponsa, that the contact was trivial or fleeting, or that the contact between them was consensual. I reject the contention that he was acquitted because he acted in self-defence towards Mr. Casaponsa. The whole sequence of events shows that Mr. Mikasinovic was not threatened, not in danger, and not provoked. In my view, it is very dangerous to watch a video and analyze it in a second-by-second fashion without keeping the entire sequence of events in context. That risks isolating individual events and distorting what actually happened. What the whole of the evidence shows is that Mr. Mikasinovic chose to escalate by first by punching Mr. Casaponsa, then punching Mr. Runge twice. He then pursued Mr. Runge while he was off-balance and reeling backwards with his hands in a defensive position. The third punch cannot be divorced from this sequence. The violence was unprovoked, gratuitous, and disproportionate. That is why I reject the claim of self-defence for all three punches.

[18] I must say something about the role of alcohol in all this. It is clear that everyone was drinking. Dr. Weizenberg, for example, drank a lot and testified that his perception might have been affected. Mr. Runge had been drinking, but he was not drunk. Mr. Mikasinovic testified that he had 4-5 drinks as well as beer at Swatow but that he was stone sober. I rather doubt that. I suspect that alcohol played something of a role in his anger, but there is no evidence that it was the main driver of the violence.

(c) The Included Offence

[19] I charged the jury that the Crown must prove that Mr. Mikasinovic wounded, maimed, disfigured or endangered the life of Mr. Runge in order to convict him of aggravated assault. I also charged the jury that if they had a reasonable doubt whether the wounding, maiming, disfiguring, or endangering of life of took place, but they were satisfied Mr. Mikasinovic caused bodily harm, they must find him not guilty of aggravated assault, but guilty of assault causing bodily harm.

[20] Dr. Roger Smith, an expert in the area of neuroradiology, gave an opinion that Mr. Runge had suffered a serious brain injury. The damage is considered permanent and could lead to altered functions and possibly seizures. Dr. Smith stated that the injury had the potential to be life-threatening, as it was a very severe injury.

[21] I find that the jury acquitted Mr. Mikasinovic of aggravated assault because they found that the injury was not a wound, a disfiguring, or a maiming. They also found that the injury did not endanger Mr. Runge’s life. I find, however, the brain injury suffered by Mr. Runge was severe, permanent, and had the potential to endanger his life if untreated. It is serious on any view of the evidence, and on any view of the evidence Mr. Mikasinovic caused it: R. v. Yusuf, 2010 ONCA 522.

(d) Circumstances of the offender

[22] Mr. Mikasinovic is 33 years old. He came to Canada at the age of 8 with his family. They were refugees from Croatia. He had some difficulties assimilating, but settled in and was raised in a healthy environment. His parents worked long hours while he was young. His father has serious health issues. He assists his elderly parents financially.

[23] When he was in his late teens, Mr. Mikasinovic made some poor choices and, as the pre-sentence report put it, began “associating with negative peers.” He accumulated a youth criminal record and two adult criminal convictions. He did manage to right himself and graduated from the University of Toronto in 2010 with a bachelor’s degree. He went to work in Haiti after the 2010 earthquake for about two years. He is currently employed by Terrella Capital. In that capacity is involved in promoting a business called Beleave Inc. that will become involved in the legal distribution of marijuana. Mr. Mikasinovic has been successful in his business career. There is no question of that.

[24] Mr. Mikasinovic has a youth criminal record consisting of the following convictions:

• January 5, 2002: one count of possession of property obtained by crime over $5000 for which he received probation;
• February 15, 2002: one count of possession of property obtained by crime over $5000 for which he received probation;
• June 27, 2002: two counts of possession of property obtained by crime under $5000; one count of mischief under $5000; one count of possession of break-in instruments. He received 45 days for these offences.

[25] Mr. Mikasinovic also has an adult criminal record consisting of the following convictions:

• December 18, 2002: one count of fail to comply for which he received a $250 fine;
• January 8, 2003: one count of assault and one count of assault causing bodily harm. He received a suspended sentence for both offences.

[26] After his conviction Mr. Mikasinovic attended six hours of counselling with Julie Freedman. Ms. Freedman is a general practice psychotherapist. She has a bachelor’s degree in psychology and a master’s of social work. She stated in her letter that Mr. Mikasinovic does not have alcohol or substance abuse issues. After conducting a Clinical Anger Scale test she determined that he is in the low normal range, and does not have anger management issues. He indicated to her that he wished to gain deeper insight into the issues that led to his criminal conviction. He acknowledged to her the wrongfulness of his past conduct and, to use her words, “is greatly troubled by it.” He “expressed sincere victim empathy and demonstrated that he has strong regret and remorse”.

[27] Although Ms. Freedman noted that she found no anger or substance abuse issues with Mr. Mikasinovic, I am frankly not certain of the reliability of her conclusions. Mr. Mikasinovic was required to complete both a substance abuse program and an anger management program as part of an earlier probation order. On the night of the incident his behaviour was highly aggressive. Ms. Freedman did not testify and was not cross-examined. I am inclined to give her opinion little weight. I do not accept that Mr. Mikasinovic does not have anger management issues given his history and the events that night. It is also difficult for me to give her opinion any weight when she makes the editorial comment that his victim empathy and strong regret and remorse were “sincere”. That is not her job, which was to administer tests and make clinical conclusions. That said, it is positive and mitigating that Mr. Mikasinovic has sought counselling.

(e) Impact on the victim and the community

[28] This was an unprovoked serious assault on a busy downtown street on a summer night. Citizens have the right to go about their business and be free of the fear that they might be subject to violence. Minor frictions between citizens are part of daily life. We expect that they will be handled without violence. Citizens should be able to assume that these frictions will not escalate into serious violence.

[29] The impact of the injury on Mr. Runge was severe. After he recovered from the hospital he got regular and strange headaches. He could not read, was upset at things that should not upset him, and was frustrated. He went to a brain injury rehabilitation program. He was also on anti-depressants for a year and a half and could not work for a substantial period of time. He works in publishing and it took him a long time to be able to work full time again.

[30] Mr. Runge’s mother gave a victim impact statement. It is clear that she was deeply upset by the injury to her son, a promising young man who was just launching himself on a career in publishing. She noted that Mr. Runge now has to deal with depression, anxiety, nervousness, and loss of self-confidence. She noted that the whole ordeal, including two trials, has been extremely difficult for her family as a whole.

3. Legal Parameters

[31] Assault causing bodily harm carries a penalty of a maximum of ten years when prosecuted by indictment.

4. Positions of the Crown and Defense

[32] The Crown’s position is that a penitentiary sentence of 2 ½ years is required. If something less than a penitentiary sentence is not required, then Mr. Mikasinovic should be sentenced to a high reformatory sentence with two years of probation.

[33] The defence position is that Mr. Mikasinovic should be sentenced to a suspended sentence with three years probation. If I am minded to impose a custodial sentence then Mr. Murphy submits that an intermittent sentence is appropriate.

5. Case Law

[34] The range of sentence is wide in cases of personal violence. The range of behaviours encompassed by these assaultive offenses is so wide that virtually any case can be found to justify virtually any sentence. There are cases where people convicted of aggravated assault receive intermittent or non-custodial sentences. There are cases where people convicted of assault causing bodily harm receive significant jail sentences. These cases illustrate the principle that sentencing is an individual process.

[35] Mr. Murphy relied on several cases in support of his submission that a non-custodial sentence was appropriate. I will mention some of them. R. v. Shahcheraghi, 2017 ONSC 574 is such a case. Mr. Shahcheraghi was convicted of aggravated assault. He was a bouncer at a downtown bar. He and another bouncer ejected the victim, a drunk patron. He punched the victim multiple times and smashed his head into a glass door. He injured the victim’s head and face, including an injury near his eye. The victim made a full recovery. He had no lasting effects or injury and was back to his regular routine quickly. He was clearly drunk when ejected from the bar, and physical force was required to remove him. Mr. Shahcheraghi was a first offender. He put himself through school, earning bachelor’s and master’s degrees. Morgan J. imposed a suspended sentence and three years probation.

[36] In R. v. Fensom, 2016 ONSC 4709, the offender was convicted of assault causing bodily harm. The circumstances were similar to those in R. v. Shahcheraghi. The offender was a bouncer in a bar. The victim was a drunk patron who had to be ejected by force. The patron’s behaviour may have constituted provocation. Mr. Fensom kicked him several times. He was a first time offender and had pro-social antecedents. The violence was not gratuitous and the victim, who initiated the situation, recovered fully. The use of excessive force was a momentary lapse. When the victim left, and then re-entered briefly, the offender did not pursue and left him alone. Quigley J. sentenced him to a conditional discharge and a term of probation.

[37] In R. v. Thomas, 2012 ONSC 6653 Horkins J. of the Ontario Court of Justice found the offender guilty of assault causing bodily harm. Mr. Thomas was an off-duty police officer who was driving with his girlfriend and daughters. Another driver cut him off and drove in an exceptionally aggressive manner. Mr. Thomas flashed his badge, pulled the other driver over, and attempted to arrest her. There then ensued an altercation as Mr. Thomas placed her under arrest. The trial judge convicted him on the basis that he used excessive force in the course of that arrest. Horkins J. sentenced Mr. Thomas to a 90-day intermittent sentence. On appeal, Code. J. reduced the sentence to a non-custodial disposition on the grounds that this was an exceptional case involving a respected police officer with good antecedents.

[38] In R. v. Dinney, 2012 ONCA 497 the offender and his friends were drunk in the entertainment district in Hamilton after closing time. They became involved in a number of fights with others. Bouncers attempted to intervene. Mr. Dinney left the area and returned. He then sucker-punched the victim. The victim collapsed, struck his head on the pavement, and suffered serious head injuries. Mr. Dinney told the police that he hit the complainant with his hardest punch. The trial judge sentenced him to six months. To use the words of the Court of Appeal, she considered his “relative youth, his unblemished record at the time of the offence, his subsequent expression of remorse and the fact that the assault involved a single blow.” This case obviously has some important features that are similar to the facts in this case.

[39] In R. v. Samson, 2015 ONSC 523 the victim and the offender were both drunk. They had an argument that escalated into a fight. There was provocation as the victim had harassed him all through the evening. The offender punched the unconscious victim several times. He then became concerned that he might have truly injured the victim. He placed the victim in the recovery position and helped him, with others, to a nearby vehicle to take him to the hospital. He apologized to the victim, as he knew the fight had gone too far. He also pleaded guilty. He was evidently very remorseful. It was his first offence, he was young, and he had a very positive pre-sentence report. LaFrance-Cardinal J. imposed a four-month conditional sentence. The accused was originally arraigned on an indictment but then re-arraigned on information where the Crown proceeded summarily. Without in any way commenting on the propriety of that procedure in the Superior Court, the obvious point of doing that was to permit a conditional sentence. Under s. 742.1(e)(i) of the Criminal Code a conditional sentence is not available for offences prosecuted by indictment where the maximum penalty is ten years imprisonment. Assault causing bodily harm under s. 267(b) of the Criminal Code is a hybrid offence.

[40] Mr. Murphy relies on my own sentencing decision in R. v. Gugaruban, 2013 ONSC 3243. The victim and the offender were close friends. The offender was married to the victim’s first cousin. A family dispute escalated and resulted in the offender throwing a punch at the victim. The victim’s orbital bone was fractured but he made a full recovery. A jury rejected a defence of self-defence. The offender was evidently quite remorseful and regretted his actions, even as he testified in self-defence. He had throughout wanted to heal the family breach – as did the victim, who wrote to the Court asking that the offender be treated leniently. I imposed a 90-day intermittent sentence. In my respectful view, the circumstances in that case were very different from the circumstances here.

[41] Ms. Goldenberg relied on a series of cases where significant custodial sentences were imposed. Most of them involved convictions for aggravated assault after a trial. The highest sentence was 3 years for a “sucker punch” with serious injuries: R. v. Brethour, 2011 ONSC 1677. She also relied on R. v. Rai, 2013 BCSC 1826. The offender in that case received, after a guilty plea, a 21-month sentence for another “sucker punch” where the victim was seriously injured and lost sight in one eye.

[42] In R. v. Desgagne, 2013 ONSC 6319 the offender pleaded guilty to assault causing bodily harm. The offender and the victim had an argument over rent money. The offender struck the victim with a “massive punch”. The victim had little memory of the incident. He suffered a serious and permanent brain injury. He could no longer work and could not live unaided. The offender agreed that he had not acted in self-defence and that he had used excessive force. He was 51 years old and without a criminal record. He had an alcohol problem and was on disability as a result of a work injury. He had also abused other substances over the years. He expressed great remorse and embarrassment. Ratushny J. sentenced him to 8 months in jail and two years probation after the guilty plea.

6. Mitigating and Aggravating Factors

[43] In my view the main aggravating factor in this case is the violent and unprovoked nature of the assault on Mr. Runge.

[44] I also find it slightly aggravating that Mr. Mikasinovic has a criminal record. They were convictions largely accumulated at a young age and he has done much to turn his life around. I give little or no weight to the youth convictions. I do, however, find it aggravating that two of his convictions are for assault and assault causing bodily harm. That is tempered by the fact that he received a suspended sentence and probation for both convictions. The “gap” principle plays a role as well in mitigating the criminal record.

[45] Mr. Mikasinovic attempted to apologize to Mr. Runge and his family. In his attempt he expressed remorse and indicated that the jury’s verdict had made him think carefully about what he did. I do not accept that in the circumstances of this case that Mr. Mikasinovic’s apology to Mr. Runge and the Runge family is a mitigating factor. I found it contrived, like his trial testimony. I am aware that Mr. Mikasinovic expressed remorse in the pre-sentence report and says that he takes responsibility for his actions as a result of the jury’s verdict. Unfortunately, that is at odds with Mr. Mikasinovic’s attempt in his testimony to portray himself as a victim rather than a victimizer. I had the benefit of watching both his demeanour on the stand and his actions on the videotapes. It is very unlikely that he suddenly changed his views. It is much more likely that Mr. Mikasinovic, who is plainly very intelligent, understood that an expression of remorse would go further on sentencing than a refusal to accept the jury’s verdict. My observations of him indicate that he has the wit, the sophistication, and the intelligence to understand how he should portray himself in this situation. I believe that it is the same for his expression of remorse to Ms. Freedman. His expressions of remorse are at odds with the person I observed on the stand.

[46] That said, I do not find that an insincere apology is an aggravating factor. I simply cannot take the attempt to apologize into account. Mr. Mikasinovic appears to be without remorse – except for himself, unfortunately. I do hope, however, that he will gain insight into his behaviour.

[47] There are, of course, very important mitigating factors in this case that I must and do take into account. Mr. Mikasinovic had troubles with the law as a younger man. Some of his character references noted the steps that he took to right himself. He has apparently been involved in the St. Joseph Ride for Cancer and other charitable fundraising initiatives. Beleave is sponsoring a program to discourage youth impaired driving and marijuana consumption. He is involved with that program. Mr. Mikasinovic also submitted a volume containing numerous character references. I carefully reviewed these documents. Several business associates spoke of his integrity, intelligence, and generosity. His many friends appear to have taken a very strong interest in him. They also speak of his character and his integrity, as well as his helpfulness when they have needed assistance. Ultimately, Mr. Mikasinovic is a man who has achieved business and social success, which, I believe, he will likely continue to achieve.

7. Ancillary Orders

[48] A DNA order will be made in this case as this is a primary designated offence. There will be an order under s. 109 of the Criminal Code prohibiting Mr. Mikasinovic from possessing any weapons for 10 years. There will be an order pursuant to s. 743.21 of the Criminal Code prohibiting communication between Mr. Mikasinovic and Mr. Runge and his family.

8. Final Decision

[49] This was a difficult case. It was the second trial, the first having ended in a hung jury. I had the opportunity to observe all the main participants at length. It was obvious that it was emotional and difficult for everyone concerned.

[50] Despite Mr. Murphy’s skilful submissions and admirable zeal on behalf of his client, I respectfully disagree that a non-custodial sentence is appropriate. I distinguish this case from the “bouncer” cases where offenders have received non-custodial sentences. Furthermore, virtually all the other cases where the court imposed non-custodial or intermittent sentences involved disputes that were provoked in some way by the injured party. That is not the case here. I also find that an intermittent sentence would send the wrong message about after-hours violence in or near the Entertainment District of our city. I also find that a sentence of 90 days or less is simply insufficient to denounce the gratuitous violence and resulting serious injury in this case.

[51] This case is entirely different. Mr. Mikasinovic initiated the confrontation. He was aggressive and hostile. He could have backed off and de-escalated. Instead, he went after Mr. Runge and punched him when Mr. Runge was reeling backwards and defenseless. Indeed, Mr. Mikasinovic testified that he punched Mr. Runge “as hard has he could”. Mr. Mikasinovic literally went in for the kill – not in the sense that attempted to murder Mr. Runge, but in the sense that he was determined to incapacitate a helpless and staggering victim. Self-defence played no role at any time. Dr. Smith testified that the force required to cause the type of brain injury suffered by Mr. Runge would have to be considerable. Mr. Mikasinovic’s actions were unprovoked and disproportionate to the circumstances.

[52] I am inclined to agree with Mr. Mikasinovic’s character references that his earlier troubles with the law were the result of youthful bad judgment and should not be given a great deal of weight. I also agree that Mr. Mikasinovic’s successful attempts to turn himself around and have a successful business career are positive and mitigating and I do take that into account. I also take into account that he has adult convictions for assault and assault causing bodily harm. I am aware that he received a suspended sentence for both, and that he was still quite young. Although those convictions do not carry a great deal of weight, it is troubling that he finds himself before the courts again for a violent offence.

[53] Ms. Goldenberg, like Mr. Murphy, made very able submissions in favour of her position. Respectfully, however, I am unable to agree that a penitentiary sentence is appropriate in this case.

[54] I find the following comment from the Court of Appeal in R. v. Yusuf, supra, very helpful:

Although we do not think that the trial judge failed to give proper consideration to the jury's verdict (the jury acquitted on the wounding and convicted on the included offence of assault bodily harm), we are satisfied that the sentence is entirely justified on any view of the conviction. Clearly, the appellant struck the victim in the face once or more with real force. Blinded, she stumbled away and fell down the stairs. The appellant is properly held responsible for all of the victim's injuries even if the blow or blows he struck did not "wound" the victim within the meaning of the Criminal Code

[55] In my respectful view, the most useful cases are Dinney and Desgagnes, supra. In imposing sentence I take into account Mr. Mikasinovic’s many good character references, his very good prospects for rehabilitation, and his pro-social and successful life since his more troubled youth. I also take into account the fact that some measure of specific deterrence is required given what seems to be something of an anger management problem. Finally, I also take into account the terrible injuries to the victim, the need to denounce this particular violent offence, and the need to deter like-minded others in the future.

[56] In my view, an appropriate sentence in this case is 14 months in the reformatory. I also impose two years probation. The terms of the probation will be for Mr. Mikasinovic to keep the peace and be of good behaviour, continue to take counselling as required by his probation officer, to provide whatever waivers the probation officer requires to monitor his progress, and to do 50 hours of community service.

R.F. Goldstein J.

Released: May 25, 2017

COURT FILE NO.: CR-16-10000760-0000 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – NEDELJKO MIKASINOVIC

REASONS FOR JUDGMENT ON SENTENCING R.F. Goldstein J.