Court File and Parties
CITATION: R. v. Sarraf, 2017 ONSC 7668
COURT FILE NO.: 91/15
DATE: 2017-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HADI AMIR SARRAF
COUNSEL:
Laurie Jago, for the Crown
Hadi Amir Sarraf (self-represented)
SENTENCING SUBMISSIONS HEARD: December 14, 2017
SENTENCE DELIVERED: December 22, 2017
REASONS FOR SENTENCE
gibson J.
Introduction
[1] The offender Hadi Amir Sarraf has been found guilty of the offences of aggravated assault pursuant to s.268 of the Criminal Code, and of assault pursuant to s.266 of the Code. The offences were committed against Olga Thompson, with whom Mr. Sarraf was in a close and continuing relationship.
[2] It is now my duty to determine a fit, just and appropriate sentence.
Evidence at the trial
[3] The evidence of the complainant Olga Thompson, which I accepted, was that she had formed a relationship with Hadi Sarraf after meeting him in 2010, and that she frequently went from her house in Etobicoke to visit him at his home in Burlington. Sometimes she would stay over. Theirs was an intimate relationship in the beginning, but over time had evolved to more of a friendship.
[4] Ms. Thompson’s evidence was that on March 31, 2014, she was staying at Mr. Sarraf’s house in Burlington. They had earlier gone out for breakfast at Ikea, and were planning to go to a Walmart to return a barbeque that Mr. Sarraf had purchased. A dispute arose about her missing red purse, which she could not find. She observed that there were only two persons in the house, with the implicit suggestion that he might have taken the purse.
[5] She testified that at one point she was then hit from behind by Hadi Sarraf (“he mowed me down” or “plowed me down”, she said repeatedly in her evidence at trial.) She fell and injured her knee (“pulverized her knee,” as she repeatedly and colorfully put it.)
[6] She then called 911 on her cell phone to ask for an ambulance.
[7] She also testified that he then kicked her in the leg with his shoes, and struck her in the head with hard-soled sandals. She testified that he took her cell phone and would not return it to her. He did not want to call an ambulance until he received assurances from her that she would not seek to get him in trouble with police.
[8] Ms. Thompson also testified that on earlier occasions Hadi Sarraf had thrown keys at her (June 11, 2013), kicked her, and also, while they were on the way to the Ishtar restaurant, struck her in the head (July 2, 2013). On June 18, 2013, her friend Margaret Stevens came to pick her up at 3:00 a.m. because Hadi Sarraf was punching her and arguing.
[9] The evidence of Olga Thompson’s friend Margaret Stevens was that she had seen bruising on Ms. Thompson on occasions before March 31, 2014, shortly after Olga Thompson was together with Hadi Sarraf, and that she had driven to his house to pick up Olga Thompson when she called late one night indicating that she felt threatened.
[10] Photographs depicting injuries to Olga Thompson, and medical records from her visit to a hospital emergency room on March 31, 2014, were made exhibits at the trial. Dr. Alex Pyper completed a report indicating that Olga Thompson had a hematoma at the superior aspect of her right forehead, and swelling, bruising and a linear longitudinal abrasion of the right portion of the anterior aspect of the left lower leg. X-rays also revealed a comminuted fracture of the patella.
[11] The photographs depict injuries to Ms. Thompson including a gash or cut on her shin, and extensive bruising. The medical records also indicate that Olga Thompson had sustained a fractured patella.
[12] Ms. Thompson testified that the injuries have diminished her ability and pleasure at walking, which had previously been one of her favourite activities. Her Victim Impact Statement indicates that the events, and the injuries she sustained, have had a significant impact upon her life.
[13] On the evidence as a whole, I found that on March 31, 2014, Hadi Sarraf willfully struck Olga Thompson down, causing injury to her right knee that required a cast for a lengthy period of time. Thereafter, he kicked her in the shin, hit her in the head with a sandal, and kicked her in the ribs, resulting in a gash, bruising, and fractured ribs. I found that the gash on her leg constituted wounding, and the injury to her patella maiming, within the meaning of s. 268 of the Criminal Code.
[14] I am also found with regard to the “historical” assaults that in 2013 he threw keys at her, on another occasion kicked her in the knee, and on another occasion hit her in the head. These assaults resulted in bruising to Ms. Thompson’s face.
Evidence at sentencing hearing
[15] In addition to the evidence heard at the main trial, the evidence on sentencing included a Pre-Sentence Report completed April 13, 2017, the Victim Impact Statement of Olga Thompson, and the report of a psychiatrist, Dr. Yedishtra Naidoo, dated December 6, 2017, which had been prepared pursuant to a s.22(1) Mental Health Act order for an assessment.
[16] In R. v. Lenart (1998), 1998 CanLII 1774 (ON CA), 39 O.R. (3d) 55 (C.A.), the Court of Appeal for Ontario has confirmed that s.22 Mental Health Act assessment reports may appropriately be considered in the context of sentencing.
Analysis
[17] Hadi Sarraf has a criminal record for convictions for assault in 1981, failing to remain at the scene of an accident in 1984, and three convictions for tax evasion in 1989. I consider this record to be dated, and have not factored it into my assessment of sentence.
[18] The position of the Crown was that Mr. Sarraf should be sentenced to imprisonment for 18 months (comprising 16 months for the aggravated assault charge, and two months consecutive on the assault charge), to be followed by probation for three years, plus several ancillary orders including an order to provide a DNA sample, and a prohibition order under s. 109 of the Criminal Code for 10 years.
[19] Mr. Sarraf, who had been represented by counsel at trial but chose to represent himself at the sentencing hearing, did not respond to the Court’s invitation to make submissions on the sentence proposed by the Crown, or regarding his health or other relevant sentencing factors, but rather indulged once again in a baseless and obnoxious ad hominem bout of criticism of Crown counsel, making wild accusations of criminality on her part. The Court has thus not received any useful submission from the Defence perspective as to an appropriate balancing of the sentencing factors regarding Mr. Sarraf in this case.
[20] Mr. Sarraf expresses no remorse for his actions, and appears to have little insight into his own character or the causes of his current situation. According to the psychiatrist’s report, Mr. Sarraf lacks empathy and continues to denigrate the victim Ms. Thompson as “a fat German cow who only thinks about herself.” In the interview with the probation officer for the pre-sentence report, he labelled her as a “fat, ugly and dirty person.”
[21] It is apparent from his defiant attitude and continuing non-compliance with court orders regarding assessments that Mr. Sarraf has repeatedly attempted to stall for the past 12 months to avoid responsibility and to delay being sentenced.
[22] The aggravating factors in this case are the following:
a. The extent of the physical injuries sustained by the victim Olga Thompson;
b. Ms. Thompson’s age ( 77) and physical condition;
c. The impact upon Olga Thompson’s enjoyment of life; and
d. The nature of the assaults as essentially domestic abuse.
[23] The mitigating factors are scant. Two that would naturally arise for consideration are Mr. Sarraf’s age (he is currently 81), and his mental and physical health. However, on the facts of this case, these are not straightforward factors, and require some additional consideration.
[24] I start with the factor of age. On initial consideration, the proposition that a person aged 81 should be sentenced to a custodial sentence naturally gives one pause. It would seem appropriate that advanced age may be considered as a mitigating factor; however, it is not generally independently dispositive on sentencing. If advanced age is considered to be mitigating, it is almost always in conjunction with the ill-health of the offender.
[25] In R. v. W. (A.G.), (2000), 2000 CanLII 5641 (ON CA), 130 O.A.C. 78 (C.A.), the Court of Appeal considered the decision of the trial judge to impose a suspended sentence in the case of an accused convicted of incest and indecent assault. The Court of Appeal found that the trial judge properly considered the advanced age and deteriorating health of the accused as mitigating factors. However, it is clear that the assessment in that case turned on the strong evidence about the very fragile health of the offender.
[26] In R. v. McCrystal (1992), 55 O.A.C. 167 (C.A.), the Court of Appeal allowed an appeal of a custodial sentence by a 71-year old accused in light of his health concerns. Similar concerns were raised by the trial judge in R. v. D.(D.), 2004 CarswellOnt 8838 (S.C.), aff’d [2005] O.J. No. 4804(C.A.), in relation to a 77-year old offender. In both cases, however, it is clear that the courts were primarily concerned with the fragile health of the persons being sentenced.
[27] In R. v. J.(O.) (1990), 94 Nfld. & P.E.I.R. 31 (Nfld.Prov.Ct.) at paras. 3-4, the offender was 80 years old but did not present any evidence of ill health. While the trial judge noted the age of the accused as a mitigating factor, he did not attach great significance to this factor as “it would only condone elderly men sexually abusing their daughters.”
[28] In R. v. Bullyment (1979), 1979 CanLII 2922 (ON CA), 46 C.C.C. (2d) 429 at para. 49, the Court of Appeal for Ontario suggested that the age and state of health of the accused were more properly considerations of the Parole Board than the appellate court as the sentence given was proportionate to the gravity and magnitude of the offence.
[29] In R. v. Boyes, 2013 ABPC 105, [2013] A.W.L.D. 3785, at paras. 20-21, the Court considered whether old age can be a mitigating factor on sentencing, concluding that
“…old age when combined with physical health problems can be mitigating…
However, in this case, the accused is in relatively good health and cannot be said to be so elderly as to not withstand a penitentiary term of imprisonment. Therefore, her age is not a mitigating factor.”
[30] However, in R. v. E.(M.), 2012 ONSC 1078, 100 W.C.B. (2d) 610 at para. 68, Hill J. observed that advanced age ordinarily merits some consideration as a mitigating factor both because the older a person is the harder it is to serve a sentence, and the less is that person’s life expectancy in prison.
[31] I conclude that the weight of jurisprudence in Canada currently supports the view that, while the advanced age of an offender may appropriately be considered as a mitigating factor on sentencing in some measure, it is not dispositive absent evidence of some significant health concerns and does not preclude consideration of a custodial sentence where that would otherwise be appropriate.
[32] Mr. Sarraf did not present any evidence of ill-health as a mitigating factor on sentencing, nor did he advance it as one that should be taken into account by the Court. Moreover, during the sentencing submissions, I specifically asked Mr. Sarraf to comment on his health concerns, and he assured me that he “was fine.”
[33] In the present case, the psychiatrist’s report indicates that Mr. Sarraf is being treated for hypertension, high cholesterol and diabetes. However, there is nothing to indicate that these pose a risk to his health beyond that suffered by a great many persons in Canada, of various ages. As Crown counsel pointed out in her sentencing submissions, there are medical facilities available at custodial institutions in Ontario, and inmates may receive such medical attention, including prescribed medications, as is required.
[34] On the evidence before me on sentencing, it thus does not appear that Mr. Sarraf suffers from health conditions that should preclude consideration of a custodial sentence in his case. This case, on its facts, would appear to fall into the category of cases where age alone is not sufficiently mitigating to preclude consideration of a custodial sentence.
[35] Absent such health concerns founded in evidence before the Court, if an offender such as Mr. Sarraf is sufficiently vigorous to commit aggravated assault on his girlfriend, then he is vigorous enough to serve a reasonable period of imprisonment. Advanced age may have some mitigating effect on the length of the sentence, but by itself is not enough to preclude a custodial sentence altogether.
[36] I turn to the second factor, the potential mitigating effect of mental health issues.
[37] Fitness to stand trial is not an issue in this case. Neither is there any evidence that Mr. Sarraf should be considered not criminally responsible within the meaning of s.16 of the Criminal Code because he suffered from a mental disorder that rendered him incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
[38] Mr. Sarraf did exhibit some odd behaviour in court, which prompted some concerns about his mental health. This consisted primarily in his repeated harangues regarding Crown counsel at trial, and his insistence on wearing barrister’s robes in court, notwithstanding that he is not a lawyer, and that he was repeatedly instructed by the Court not to do so.
[39] In consequence, the Court made two orders for examination pursuant to s.21 of the Mental Health Act, which Mr. Sarraf did not comply with. Ultimately, this led to an order for admission being made under s.22(1) of the Mental Health Act. Mr. Sarraf was assessed at the Forensic Assessment Unit of St. Joseph’s Healthcare in Hamilton.
[40] He was diagnosed by Dr. Naidoo with Paranoid Personality Disorder; Narcissistic Personality Disorder; Delusional Disorder, persecutory and grandiose type; and Possible Minor Vascular Neurocognitive Disorder.
[41] What should be the mitigating effect, if any, of these diagnoses?
[42] Courts have seemed to consider similar diagnoses as both aggravating and mitigating factors, depending on the circumstances.
[43] In R. v. Harding, [2009] O.J. No 682, (S.C.) at paras. 15-19, the accused’s diagnosed narcissistic personality disorder was not considered a mitigating factor in his aggravated assault charge.
[44] In R. v. D.D., 2017 ONSC 3829, at paras. 33 and 37-39, in a sexual assault case the fact that the accused likely had narcissistic personality disorder was treated more as a mitigating factor than an aggravating.
[45] In R. v. Ahmad, 2017 ONSC 6972, at paras. 34 and 44, in a criminal harassment case the Court drew on a psychiatric report which indicated that the accused had a narcissistic personality disorder, and specifically a sense of entitlement, as an aggravating factor.
[46] Dr. Naidoo’s psychiatric assessment does not include any suggestion that Mr. Sarraf should not be sentenced to a custodial sentence. Neither is there anything that leads me to conclude that the diagnosed conditions should have a significant mitigating effect, either with respect to the conduct which led to his convictions, or to his present circumstances. As described by Dr. Naidoo, they are essentially “characterologic deficits.”
[47] Dr. Naidoo concludes that, given Mr. Sarraf’s lack of cooperation, a formal diagnosis of Probable Minor Vascular Neurocognitive Disorder is not possible at this time. I have not been presented with evidence of any significant cognitive impairment or health concern that should preclude a custodial sentence.
[48] Dr. Naidoo’s risk assessment does cause me significant concern. Dr. Naidoo indicates that, “based upon my review of the available collateral records, discussion with his family, my meeting with and observing Mr. Sarraf and speaking to treatment staff at our hospital it is my opinion that Mr. Sarraf is at a high risk for future violence. The violence is most likely to be impulsive, directed toward a significant other, and is likely a long-standing risk that is secondary to his chronic characterologic deficits.” Dr. Naidoo observes that Mr. Sarraf’s long-standing denial of his actions and glorification of his accomplishments indicates he is manipulative and lacks remorse for his aggressive behaviour.
[49] Dr. Naidoo summarizes his assessment at p.12 of his report:
“Mr. Sarraf’s long-standing narcissistic and paranoid personality features have more recently predisposed him to delusions about his being a lawyer and paranoia about the role of the Crown. Due to vascular risk factors, he may also have a neurocognitive disorder that can make his violence more indiscriminate, more frequent and more impulsive.”
“Mr. Sarraf is at a high risk for re-offence primarily due to aspects of his long standing personality disorder…”
“Given the long-standing nature of Mr. Sarraf’s character impairments, his permissive attitudes towards violence and bullying, the lack of remorse he exhibits for his actions and his lack of insight into the utility of treatment to prevent worsening of his impulsive violence, it is unlikely that he will benefit from mental health treatment.”
[50] Dr. Naidoo goes on to make a number of recommendations to reduce Mr. Sarraf’s risk for future violence, including antipsychotic medication for paranoia and aggression, regular follow-up by a physician, and insight-oriented psychotherapy. However, there is nothing to indicate that it would not be possible to appropriately pursue these in a custodial environment. Or, indeed, that if Mr. Sarraf were not sentenced to a custodial sentence, that he would choose to pursue them of his own accord outside a custodial environment.
[51] I have carefully canvassed the sentencing precedent cases provided to me by the Crown, including R. v. Tourville, 2011 ONSC 1677; R. v. Maslakovic [2000] O.J. No 4247 (S.C.); R. v. Bell, 2015 ONCJ 62; and R. v. Gouin [1998] O.J. No. 3530 (Ont. Ct. Gen. Div.). I conclude from these that the appropriate range for sentence on facts similar to the present case runs from 18-24 months. The sentencing position taken by the Crown is consistent with these precedents.
[52] A conditional sentence is not available on a conviction for aggravated assault: s. 742.1 of the Criminal Code.
[53] I have carefully considered all of the sentencing purposes and principles elaborated at ss. 718, 718.01, 718.1 and 718.2 of the Criminal Code. I have also considered the sentencing precedents and the relevant aggravating and mitigating factors in this case. Having done so, it is apparent that the dominant sentencing considerations in this case should be denunciation, general and specific deterrence, and protection of the public by separation of the offender from society.
[54] Pursuant to s. 718.2(a)(ii) of the Criminal Code, it is an aggravating factor on sentence that the offender, in committing the offence, abused the offender’s spouse or common-law partner. I consider on the facts of this case that the nature of Mr. Sarraf and Ms. Thompson’s relationship was sufficiently analogous to this that it should be treated as a case of domestic abuse.
[55] Denunciation and general deterrence are engaged by the serious objective gravity of the offence of aggravated assault (punishable by up to 14 years imprisonment) and the nature of this particular offence as one of domestic abuse. This conclusion is buttressed by the subjective gravity of the facts of this case, including the injuries inflicted upon Ms. Thompson and the conduct of Mr. Sarraf. Specific deterrence and protection of the public are particularly engaged by the assessment of Dr. Naidoo that Mr. Sarraf is at a high risk for future violence.
[56] Given Mr. Sarraf’s age, his lack of insight and remorse, and Dr. Naidoo’s assessment that it is unlikely that Mr. Sarraf will benefit from mental health treatment, rehabilitation is not a prominent factor in sentencing in this case.
[57] Given Dr. Naidoo’s risk assessment, I consider it particularly important that there be a period of probation in this case involving close supervision of Mr. Sarraf.
[58] I have given some weight to Mr. Sarraf’s age as a mitigating factor but, as explained above, do not consider that it should preclude the imposition of a custodial sentence that the facts of this case otherwise clearly call for.
Sentence
[59] Mr. Sarraf is therefore sentenced as follows:
a) On the offence of aggravated assault at Count 1, to a term of imprisonment for 18 months, to be followed by three years of probation, with the conditions specified below;
b) On the offence of assault at Count 2, to a term of imprisonment of 4 months, to be served concurrently;
c) Following release from custody, there shall be a term of probation for three years, the conditions of which include:
i. Keep the peace and be of good behaviour;
ii. Appear before the Court when required to do so;
iii. Notify the Court or your probation officer in advance of any change of name or address or of any change of employment or occupation;
iv. Report within 48 hours of release from incarceration to a probation officer and thereafter as directed by your probation officer;
v. Reside at an address approved by your probation officer;
vi. Actively participate in any assessment, counselling, evaluation, or treatment that may be directed by or arranged by your probation officer;
vii. Sign any waivers, consents or releases necessary to monitor compliance with this and any other condition of your probation order;
viii. Participate in any outpatient assessment, counselling, evaluation or treatment in relation to mental health issues that may be directed or arranged by a mental health professional, their designate, or an equivalent program approved by your probation supervisor;
ix. Do not possess any weapons of any kind, including firearms or crossbows;
x. Do not travel outside Canada without the written permission of your probation supervisor.
[60] As the offence of aggravated assault is a primary designated offence, pursuant to s. 487.051 of the Criminal Code, a sample of bodily substances shall be provided for the purpose of forensic DNA analysis.
[61] During the incarceration and period of probation, Mr. Sarraf is to abstain from communicating, directly or indirectly, with Olga Thompson, or any member of her family, other than in the context of any ongoing civil litigation, and then only through her counsel.
[62] There shall be a s.109 weapons prohibition order for ten years in respect of any firearm, other than a prohibited firearm or restricted firearm, and any cross-bow, restricted weapon, ammunition and explosive substance, and for life in respect of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition.
[63] There will be a Victim Fine Surcharge of $400, payable forthwith.
Gibson J.
Released: December 22, 2017
CITATION: R. v. Sarraf, 2017 ONSC 7668
COURT FILE NO.: 91/15
DATE: 2017-12-22
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
HADI AMIR SARRAF
REASONS FOR sentence
GIBSON J.
Released: December 22, 2017