R. v. Shahcheraghi, 2017 ONSC 574

CITATION: R. v. Shahcheraghi, 2017 ONSC 574

COURT FILE NO.: CR-15-10000291

DATE: 2017-01-24

ONTARIO

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Amir Shahcheraghi

BEFORE: E.M. Morgan J.

COUNSEL: Rebecca Edward, for the Crown

Reginald McLean, for the Defendant

HEARD: January 24, 2017

SENTENCING ENDORSEMENT

[1] On November 10, 2016, Amir Shahcheraghi was convicted of aggravated assault.

[2] The offence took place outside the front door of the Gravity Sound Bar on Richmond Street in downtown Toronto in the early morning of May 30, 2014. Mr. Shahcheraghi was head of security at the bar and was stationed at the front entrance when he and a fellow “bouncer” evicted a drunk patron.

[3] The intoxicated patron, 22-year old University of Windsor student David Flewelling, suffered damage to his head and face, including a cut near his eye that severed a tear duct. Mr. Flewelling had surgery following the incident and fortunately has made a full recovery. That recovery, of course, is a testament to the good medical care he received, and does not counter the seriousness of his injuries – which the defense conceded at trial were severe enough to support a charge of aggravated assault.

[4] On the other side of the coin, it is to be noted that the injuries did not change Mr. Flewelling’s life in any way, and that after a recovery time of several weeks he was back to his normal activities. He submitted a victim impact statement at the sentencing hearing that reflects all of this, and that is noteworthy for its lack of dramatic language. Mr. Flewelling states that he has no lasting injuries and suffers no lasting effects of the injuries he initially suffered.

[5] After a 10 day trial before me, sitting without a jury, I found that Mr. Shahcheraghie punched Mr. Flewelling multiple times and smashed his head into a glass door.

[6] There were several eyewitnesses to the encounter. The evidence left no doubt that Mr. Flewelling was very intoxicated and that he deserved to be ejected from the bar on the night in question. That said, the witnesses, including Mr. Shahcheraghie himself, did not describe Mr. Flewelling as being particularly threatening or aggressive toward the security personnel that ejected him; in fact, he was so intoxicated that he could barely stand up, and ended up falling down on top of Mr. Shahcheraghie’s colleague at the front door of the bar. The evidence demonstrated conclusively that Mr. Shahcheraghie used excessive force and inflicted serious injuries on a young man who may have been drunk and obnoxious, but was in no condition to threaten or resist.

[7] This is Mr. Shahcheraghi’s first criminal offence. He is in the security business, which is a physical and stressful occupation, and has never before been involved with the criminal justice system. That is to his credit.

[8] Everything I have heard regarding Mr. Shahcheraghi, both at the trial and at the sentencing hearing, tells me that this was an unusual occurrence. There is no suggestion that he is a chronically violent person, or that he looks to use his position in security as a way of getting into physical altercations with people. The hallmark of a successful security person is that he can usually be counted on to responsibly diffuse a situation such as with a drunk or difficult customer, and Mr. Shahcherghi has been successful in this role. His encounter with Mr. Flewelling obviously got out of hand, and in the heat of the moment he used disproportionate and inappropriate force. But all other evidence indicates that for Mr. Shahcheraghi, this physical overreaction came on the spur of the moment and was generally out of character.

[9] Mr. Shahcheraghi is well educated. Despite having to learn a new language when he arrived in Canada as a teenager, he has completed both a Bachelor degree and a Master degree in engineering from Ryerson University. He comes from a family that is supportive and that encouraged this level of education. Both of his parents are physicians, and the indications are that they devoted themselves to ensuring that their children – Mr. Shahcheraghi and his brother, who is now also a physician and lives in Washington, D.C. – would acquire higher education and achieve “a better quality of life” than that available in their native Iran.

[10] There is nothing in Mr. Shahcheraghi’s background that gives rise to any special concern. The Pre-Sentence Report indicates that his family is strongly supportive, there is no history of domestic violence, drug use, or alcohol consumption. He is in a stable relationship, and currently lives with his common law spouse of 9 years. He apparently maintains a warm relationship with his family, and his spouse reports that he is especially close with his mother. She describes him as “calm, reliable and respectful.”

[11] Moreover, Mr. Shahcheraghi is industrious, and worked to put himself through university. He is steadily employed, and currently holds a managerial position with a night club in Toronto. He advises that he has 10 to 15 employees under his supervision. The owner of the night club was interviewed for the Pre-Sentence Report, and advised that Mr. Shahcheraghi is a “well-spoken individual that goes above and beyond his duties”, and that he gets along well with other employees. A number of his co-workers and other acquaintances have submitted character letters in which Mr. Shahcheraghi is described as an upstanding individual who generally role models responsible behaviour. A former employee has provided a character letter indicating that Mr. Shahcheraghie also has a generous side to him, and contributes to a number of different charitable causes.

[12] Mr. Shahcheraghi is also rather entrepreneurial, and, with a partner, has started his own security company that employs some 60 licensed security guards. This company provides services to night clubs, sporting events and music festivals. All of this indicates that Mr. Shahcheraghi is financially responsible, and will not likely jeopardize his financial future by re-offending.

[13] In R v M (C), 1996 CanLII 230 (SCC), [1996] 1 SCR 500, at 566, Lamer CJC articulated the objectives of sentencing in an instructive way:

The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of the community.

[14] Council for the Crown cites R v Craig, 2005 BCCA 484, where the British Columbia Court of Appeal suggests that the low end of the sentencing spectrum is an “upper reformatory” period of incarceration. Counsel for the defense, by contrast, cites R v Hunter, [2015] OJ No 253 (Sup Ct), where this court ordered a suspended sentence with a period of probation for this type of offence.

[15] In R v Tourville, 2011 ONSC 1677, Code J. reviewed the sentencing parameters for an aggravated assault. He first noted that the Criminal Code provides for a maximum sentence of 14 years. He then observed that the reported cases range from a high of 6 years’ imprisonment for a person with a prior criminal record who commits ‘unprovoked’ or ‘premeditated’ assaults [para 30], to a low of a suspended sentence and 3 years’ probation for a person with a history of abuse but who “[b]y the time of sentencing…had obtained employment and was making real progress in counseling” [para 27].

[16] Counsel for the Crown has drawn my attention to R v Derkson, 2009 YKSC 66, where, like here, the accused was a “bouncer” in a bar who threw a punch that caused serious injuries. The Yukon Supreme Court indicated that the prime objective is in such a case is denunciation of the unlawful conduct, and was particularly concerned to impose a period of incarceration in view of the behavior of the accused. As the court put it, at para 14 of Derkson, “I am not satisfied that to allow [the accused] to serve his sentence in the community would not endanger the safety of the community.”

[17] As indicated, Mr. Shahcheraghie’s background does not suggests that he is a danger to the community. Indeed, he has even produced character letters from police officers who indicate that he is respectful and cooperative whenever they have dealt with him in security situations at the establishments where he works. With the exception of this one incident where he obviously lost control, Mr. Shahcheraghie is what anyone would describe as a good citizen.

[18] I note that the Ontario Court of Appeal has signaled that a first sentence should be “tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence”: R v H (J) (1999), 1999 CanLII 3710 (ON CA), 135 CCC (3d) 338, at para 22. This case does not present the type of vicious, intentional attack with a weapon, causing life-threatening injuries that were at issue in the Craig case on which the Crown relies. Rather, it is similar, although not identical, to R v Taha, [2014]n OJ No 5448, where, like here, the accused was working as security personnel at a bar, the victim was an intoxicated patron, and the evidence on sentencing showed a great deal of family and other support for the accused.

[19] In R v Peters, 2010 ONCA 30, the Court of Appeal upheld a suspended sentence plus 3 years’ probation where the accused had struck the victim in the face with a beer bottle, causing lacerations that required 21 stitches to close. In R v Creighton, [1997] OJ No 2220, at para 6, the Court of Appeal observed that a sentencing judge must take into account “the exigencies of this case” in determining whether or not a total deprivation of liberty is required. As the Court of Appeal put it in R v Cooper (“Jacko”) 2010 ONCA 452, at para 90, “Individual circumstances matter.”

[20] Mr. Shahcheraghie’s circumstances incline me to think this will likely be the sole blemish on his record. He is not a threat to the community, and does not present a particular risk of re-offending.

[21] I can state my view no better than the court did in Hunter, at para 60: “As judges, we use our training and experience when we are called upon to exercise our discretion. Although I fully appreciate that this was a very serious offence that would ordinarily call for an upper reformatory sentence, I am of the view that when all the facts and circumstances are taken into consideration, this is an exceptional case within the meaning of Peters and Jacko.”

[22] Mr. Shahcheraghi, please stand at this time.

[23] In all of your circumstances and those of the offence, I suspend the passing of sentence. If you commit an offence in the next 3 years, you will be brought back before me and I will impose an appropriate sentence.

[24] You are subject to 3 years of probation on the following terms and conditions. Your are to:

• report to a probation officer as required;

• keep the peace and be of good behaviour;

• keep your probation officer advised of your place of residence and your employment;

• attend and complete counselling for anger management, as recommended by your probation officer, and sign all releases necessary to that end;

• engage in 50 hours of community service, as approved by your probation officer, during the first 18 months of your probationary period;

• not to have any association, communication or contact, direct or indirect, with David Flewelling; and

• provide such proof of your compliance with your probation terms as may be required by your probation officer.

[25] I also impose two ancillary Orders. The first is a DNA Order requiring you to submit to the taking of a bodily sample for DNA analysis and data bank storage. The second is an Order under section 109 of the Criminal Code prohibiting you from possessing any firearm or ammunition or any other item referred to in that section, for a period of 10 years from today.

Morgan J.

Date: January 24, 2017