CITATION: R. v. Tutiven, 2017 ONSC 6689
COURT FILE NO.: CR/16/40000/4710000
DATE: 20171108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
max tutiven
Joseph Callaghan and Jenny Rodopoulos for the Crown
Edward Sapiano, for Max Tutiven
HEARD: November 1, 2017
M. Forestell J.
REASONS FOR SENTENCE
Background
[1] Max Tutiven was found guilty of the second degree murder of Jayesh Prajapati. Mr. Tutiven is before this Court to be formally sentenced to life imprisonment and for the pronouncement of the period of time before which he will be eligible to be considered for parole. The minimum period is 10 years and the maximum is 25 years.
[2] The Crown submits that the period of parole ineligibility should be 17 years given the aggravating factors, including Mr. Tutiven’s criminal record, the vulnerability of the victim, the post-offence conduct and the brutal nature of the offence. The defence submits that the parole ineligibility period should be 10 years, or at most 12 years. The defence points to Mr. Tutiven’s age, his acceptance of some level of responsibility and the absence of recent significant convictions for violence.
[3] In order to sentence Mr. Tutiven, I must, to some extent, determine the facts of the offence. As stated by McLachlin C.J. in R. v. Ferguson,[^1] I need not arrive at a complete theory of the facts, but need only make those factual determinations necessary to decide the appropriate sentence. In so doing, I am “bound by the express or implied factual implications of the jury’s verdict”. To rely on an aggravating fact, I must be satisfied of that fact beyond a reasonable doubt and to rely on any other fact I must be satisfied on a balance of probabilities.
[4] In determining the period of parole ineligibility for Mr. Tutiven, I have determined the necessary facts underlying the guilty verdict. I have also considered the circumstances of the offender based on the evidence at trial and the evidence presented at the sentencing hearing. I have considered the victim impact statements, the recommendations of the jury and the positions of counsel. I will set out these considerations before explaining my analysis and stating my conclusion.
The circumstances surrounding the commission of the murder
[5] On the night of September 15, 2012 Jayesh Prajapati was working alone at a gas station. Mr. Tutiven drove into the pump area of the gas station where Mr. Prajapati was employed. Mr. Tutiven filled the tank of his vehicle with gas and filled a separate can with gas. Mr. Prajapati was inside the kiosk dealing with other customers when Mr. Tutiven was taking the gas. As Mr. Tutiven finished taking the gas, a car entered the gas station and parked fairly close to Mr. Tutiven’s vehicle. Mr. Tutiven backed up and then went forward in order to drive away from the pumps. Mr. Prajapati noticed that Mr. Tutiven was driving away without paying. The video footage from the gas station shows that Mr. Prajapati ran outside and ran towards Mr. Tutiven’s vehicle with his hands raised in a manner that suggested he was trying to attract the attention of the driver.
[6] Mr. Tutiven’s vehicle struck Mr. Prajapati. Mr. Prajapati was dragged under the vehicle. He was trapped under the vehicle while Mr. Tutiven drove out of the gas station, along the street and over a set of railway tracks. Mr. Prajapati’s body was dislodged approximately 78 meters from the initial point of impact. Witnesses who were in the area described the sound of Mr. Prajapati’s body being dragged along the pavement under the car.
[7] The jury, by its verdict, concluded that Mr. Tutiven was aware that his actions were causing bodily harm likely to cause death and that he continued to drive with that knowledge. It is not necessary for me to determine whether Mr. Tutiven deliberately drove at Mr. Prajapati in the gas station. Mr. Tutiven was aware of the fact that he had hit someone and that the person was under his car. He continued to drive and caused the death of Mr. Prajapati by so doing. The moral blameworthiness is the same whether Mr. Tutiven deliberately drove at Mr. Prajapati and then dragged him or whether he became aware that he was dragging a person under the car and continued to drive.
[8] The circumstances of Mr. Prajapati’s murder were horrific. The conduct of Mr. Tutiven in continuing to drive as another human being was being dragged, battered and killed under his vehicle was shockingly callous. He brutally killed Mr. Prajapati to escape arrest and prosecution for a petty theft.
[9] Mr. Tutiven, after killing Mr. Prajapati, fled from the scene. The next day he left the jurisdiction. He hid for three years until he was located and arrested.
Victim Impact
[10] Three Victim Impact Statements were filed and read to the Court. These statements from Mr. Prajapati’s wife, son and brother-in law describe the role that Mr. Prajapati played in his family and extended family. They describe the type of man he was.
[11] Jayesh Prajapati was a devoted husband and father. He worked hard to support his family. In addition to his support of his family, he gave to charity although he was working at a low paying job and living in a small apartment.
[12] Mr. Prajapati’s wife and son continue to suffer as a result of the brutal killing of Jayesh Prajapati. They have been deprived of his emotional and financial support. They have lost the joy that he brought to their home.
[13] The effect upon Mr. Prajapati’s loved ones, as disclosed by their victim impact statements, has been significant. I have considered the impact of the offence as disclosed by the statements in determining the appropriate parole ineligibility period while recognizing that no sentence can ever compensate them for their loss.
Circumstances of the Offender
[14] Mr. Tutiven is 44 years-old. He was 39 years-old at the time of the offence. He is single and has no children. He became involved in a relationship between the time of the offence and the time of his arrest. He lived with a woman and her two children during that time.
[15] Mr. Tutiven has little education. He had the opportunity to pursue education but chose not to do so. His mother attended Court throughout the trial and is obviously still supportive of Mr. Tutiven.
[16] Mr. Tutiven has a lengthy criminal record. There are 69 convictions on his record. While the majority of the offences are property related, there are convictions for violence. Mr. Tutiven has a long history of failing to obey court orders. He has a long record of driving offences. He was subject to a lifetime driving prohibition and was on probation when he drove his car and killed Mr. Prajapati.
[17] In addition to the entries on his criminal record and driving record, I have considered Mr. Tutiven’s admitted criminal conduct disclosed in his testimony. Mr. Tutiven, at the time of this offence and after the offence, supported himself by defrauding telecommunication companies. Before this offence he regularly stole gas.
[18] Mr. Tutiven, in his testimony, spoke with apparent pride about his successes in defrauding telecommunication companies and his success, prior to the murder of Mr. Prajapati in stealing gas. Mr. Tutiven rationalized his criminal conduct, saying that he stole only from large corporations and not from individuals. He attempted to portray himself as a principled thief. I do not accept this characterization of his criminal conduct. Mr. Tutiven developed a modus operandi in his frauds and his gas thefts that proved successful. He stole from corporations because that was what worked for him, not because he had any concern for the victims of his crimes.
Analysis
[19] In determining the period of time before which Mr. Tutiven will be eligible for parole, I must consider the factors set out in section 745.4 of the Criminal Code; namely, the nature of the offence, the circumstances surrounding the commission of this offence, the character of Mr. Tutiven and the general principles of sentencing.
[20] All sentencing objectives are relevant to the period of parole ineligibility. They include the maintenance of public safety, the separation of Mr. Tutiven from society, denunciation, general deterrence, specific deterrence and rehabilitation. However, in sentencing for second degree murder, rehabilitation has less weight than in sentencing for other offences.[^2]
[21] There are several aggravating factors in this case: Mr. Tutiven killed Mr. Prajapati in the course of committing another criminal offence; he was on probation at the time of the offence; he has a lengthy criminal record; he evaded arrest for three years; and Mr. Prajapati was a vulnerable victim due to the nature of his employment.
[22] Mr. Prajapati was working at night as a gas station attendant when he was murdered by Mr. Tutiven. The courts have a responsibility to protect people like Mr. Prajapati, who are, for no reason other than the circumstances of their employment, vulnerable targets of crime[^3].
[23] There are virtually no mitigating factors in this case except that Mr. Tutiven has strong support from his parents.
[24] While counsel argued that Mr. Tutiven accepted responsibility for his actions, I do not agree that Mr. Tutiven’s late admission of some limited responsibility operates as a mitigating factor in this case. Mr. Tutiven fled and evaded arrest for three years and admitted some limited responsibility only at a very late stage.
[25] The circumstances of this offence and this offender, in my view, require that the parole ineligibility period be increased beyond the minimum. Mr. Tutiven’s actions in callously killing a vulnerable victim, his lengthy criminal record and the absence of any real prospect of rehabilitation call for a sentence that denounces the conduct, deters others and protects the public. In all of the circumstances, I have concluded that the period of parole ineligibility in this case will be 16 years.
Conclusion
[26] For these reasons I sentence Mr. Tutiven to imprisonment for life. I order that he not be eligible for parole until he has served 16 years of that sentence.
[27] The Crown also seeks an order pursuant to s. 109 of the Criminal Code and a DNA order. These are not opposed by the offender. I therefore make a weapons prohibition order pursuant to s. 109 of the Criminal Code for life and a DNA order pursuant to s. 487.051.
M. Forestell J.
Released: November 8, 2017
CITATION: R. v. Tutiven, 2017 ONSC 6689
COURT FILE NO.: CR/16/40000/4710000
DATE: 20171108
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
max tutiven
REASONS FOR SENTENCE
M. Forestell J.
Released: November 8, 2017
[^1]: R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No. 6 at paras. 15-18
[^2]: R. v. McKnight, 1999 3717 (ON CA), [1999] O.J. No. 1321 (C.A.) at para. 39
[^3]: In R. v. Carrière (2002), 2002 41803 (ON CA), 164 C.C.C. (3d) 569 (Ont. C.A.) the Ontario Court of Appeal stated: “[a]s this court has often said, operators of convenience stores are a particularly vulnerable group. They must stay open late at night to survive economically and are easy targets” (para. 11). Similarly, in R. v. Cappo (1994), 1994 4615 (SK CA), 120 Sask. R. 309 (Sask. C.A.) the Saskatchewan Court of Appeal stated: “[t]his court has repeatedly stressed the vulnerability of confectionary stores and others who must earn their living by working late hours or shifts” (para. 7).