COURT FILE NO.: CR-16-10000282-0000
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW YARMOLUK
Lisa Jacek, for the Crown
Laurence Cohen, for Mr. Yarmoluk
HEARD: January 26, 2018
s.a.Q. akhtar j.
[1] Matthew Yarmoluk was convicted, after trial by jury, of Aggravated Assault contrary to s. 268 of the Criminal Code.
[2] On 13 September 2014, a fight took place outside the C Lounge bar on Wellington Street in downtown Toronto. Eventually three sets of young males would become involved leading to serious injuries for two men and criminal charges for another.
[3] Prusoth Palendran had been part of a group celebrating a friend’s birthday inside the bar. This group, all of Sri Lankan heritage, was ejected after an altercation with a male who tried, without permission, to use a hookah paid for by Mr. Palendran and his friends.
[4] Outside the bar a fight broke out between Mr. Palendran’s friends and another group of white males. This skirmish left Mr. Palendran unconscious on the ground. Nicholas Laramee, and his two friends, Ante Gavron and Conor Fox were walking home from a ping pong club in downtown Toronto, when they came across the fight and saw an unconscious Mr. Palendran being set upon by a group of men as he lay defenceless on the ground.
[5] Mr. Laramee, concerned for Mr. Palendran’s well-being, entered the fray. As Mr. Laramee was running into the mêlée to assist Mr. Palendran, Mr. Yarmoluk kicked him in the knee and he fell to the ground. Mr. Yarmoluk and two other males proceeded to kick and punch Mr. Laramee who curled himself into a fetal position to protect himself. Mr. Gavron intervened to save his friend, pinning down Mr. Yarmoluk and another assailant.
[6] Police arrived and arrested Mr. Yarmoluk whilst Mr. Laramee was taken to hospital to have his injuries treated.
[7] As a result of the attack, Mr. Laramee suffered the following injuries:
(i) Laceration to hand requiring 5 to 6 stitches
(ii) Torn ACL in left knee
(iii) The partial tear of MCL in left knee
(iv) Half disc popped out of left knee
(v) Three fractured bones in right foot
[8] Having been convicted of the offence, Mr. Yarmoluk now stands to be sentenced.
Victim Impact Statement
[9] Mr. Laramee provided a Victim Impact Statement outlining the effects of the offence.
[10] There is no doubt that the injuries sustained as a result of the assault will haunt Mr. Laramee for the rest of his life. He was forced to undergo two separate surgeries to correct the damage to his right foot and a separate surgical operation to treat his injured knee.
[11] Mr. Laramee explained that prior to the incident he was an athletic individual and the injuries have dealt a devastating blow to his sporting and day to day activities. He continues to endure pain in both legs when involved in physical activity. Further, his abilities as a student have been deprecated due to his inability to study for long periods without having to deal with pain. Emotionally, he has difficulty trusting new people and becomes paranoid when surrounded by unfamiliar people.
Positions of the Parties
[12] Ms. Jacek, for the Crown asks for a sentence in the range of 18 months to 2 years. She says the circumstances of the offence warrant a substantial sentence which demands both denunciation and deterrence. She points to the fact that this was an unprovoked attack upon an individual who was only drawn into events because of an unselfish desire to assist another victim of assault. Ms. Jacek points out that not only did Mr. Yarmoluk strike out at Mr. Laramee when he first saw him, he continued the assault after Mr. Laramee had himself fallen to the ground and was defenceless.
[13] Mr. Cohen, for Mr. Yarmoluk, does not dispute the seriousness of the injuries but argues that Mr. Yarmoluk’s actions were uncharacteristic behaviour of a young man with no criminal record. Mr. Cohen asserts that Mr. Yarmoluk’s conduct was borne out of stupidity rather than malice and submits that an offender of Mr. Yarmoluk’s relatively young age and good record should receive either a suspended sentence or a 90 day intermittent sentence.
Personal Circumstances of Mr. Yarmoluk
[14] Mr. Yarmoluk is now 32 years of age, single with no children. He completed his high school degree before obtaining employment with a number of different companies as a sales and marketing representative. In 2007, Mr. Yarmoluk returned to full time education initially enrolling in a Music Business Management programme before transferring to a Sports Administration course. He did not complete either course and left college without obtaining a further educational degree or diploma. Since then he has been employed in a number of casual jobs, the most recent being a position assisting his mother with her cleaning company.
[15] Mr. Yarmoluk has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and is receiving treatment. His doctor told the author of the Pre-Sentence Report (PSR) that Mr. Yarmoluk had been suffering from ADHD “all his life.” There is no doubt that Mr. Yarmoluk’s involvement with the justice system has also left a mark, with Mr. Yarmoluk becoming increasingly withdrawn and feeling a sense of embarrassment and upset by the criminal process.
[16] Mr. Yarmoluk’s parents remain supportive of his efforts to rehabilitate himself. His father, David Yarmoluk, a former police officer, submitted a letter outlining the impact that the conviction has had both on Mr. Yarmoluk and his family.
[17] In the PSR, Mr. Yarmoluk acknowledged that he was involved in the build up to the offence, after consuming a large amount of alcohol and becoming intoxicated. He expressed remorse for his actions and acknowledged the consequences to the victim.
[18] In court, Mr. Yarmoluk continued to express his regret over what happened to Mr. Laramee and the difficulties the victim will continue to face in life.
[19] Finally, Mr. Yarmoluk expressed his desire to get his life back on track and “better” himself.
What is the Appropriate Sentence?
[20] Both sides have provided case law in support of their respective positions.
[21] The defence precedents do indeed demonstrate that a non-custodial sentence or a sentence of intermittent imprisonment is available for offences involving aggravated assault where the injury was serious. However, I find these cases unhelpful to the case at bar.
[22] Some involve First Nations offenders where the principles enunciated in R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, are applied. For example in R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277, an aboriginal offender was given a suspended sentence after pleading guilty to breaking a beer bottle over the victim’s head. A majority of the Court of Appeal for Ontario upheld the sentence, whilst Watt J.A. would have allowed the appeal substituting a sentence of 12 months imprisonment.
[23] Other cases put forward by Mr. Cohen were resolved, as was Peters, by way of guilty plea such as R. v. Veenhof, 2011 ONCA 195, and R. v. Lloyd, 2017 ONCJ 435. In another case, R. v. White, 2014 ONSC 2878, a suspended sentence was imposed where the offender stabbed the victim. However, this was a case where the offender had been the victim of a domestic assault and had sustained serious injuries before retaliating to commit the offence.
[24] None of the case law provided by the defence are, in my view, apposite to this case.
[25] Ms. Jacek provided the court with a number of precedents more closely fitting the facts before this court.
[26] In R. v. Atkinson, [2016] O.J. No. 7005, a 26 year old first-time offender was sentenced to two years less one day for his role in an assault that took place after an altercation in a bar. As in the instant case, the victim was taken to the ground and then assaulted by the offender and a group of friends whilst he lay in a fetal position on the ground. He suffered serious injuries to his face and head. The court emphasised the principles of denunciation and deterrence.
[27] In R. v. Lewis, 2016 ONSC 3266, the offenders, again youthful with no criminal record, were sentenced to two years less one day imprisonment, with probation and community service, after participating in a group attack which left the victim with a brain injury. The court imposed the sentence even after finding overwhelming positive background factors such as academic and work histories, family support; and noting the fact that the commission of the offence was entirely out of character.
[28] In R. v. Boughan, 2014 ONCA 360, the court upheld a sentence of 12 months imprisonment where the offender participated in a group attack which left the victim with serious injuries.
[29] Finally, R. v. Rai, 2013 BCSC 1826, like Atkinson, bears a significant similarity to the instant case. A 24 year old offender with no criminal record was sent to prison for two years less one day after committing an aggravated assault on a “good Samaritan” who had been attempting to defuse a potentially violent situation between two groups of males outside a nightclub. The court found the offender to be intoxicated after spending an evening celebrating his birthday in a downtown nightclub. When the victim intervened to avoid a fight between two groups of males, the offender struck him in the eye causing a rupture which left him permanently blind in his left eye.
[30] In sentencing Mr. Yarmoluk, I remind myself of the objectives specified in s. 718 of the Criminal Code. This type of offence cries out for a need to denounce and deter Mr. Yarmoluk’s conduct. I am mindful of denunciation and deterrence as well as the requirement to ensure assistance for rehabilitation and promote a sense of responsibility and acknowledgement of harm done to victims and society.
[31] This offence was serious. Mr. Laramee was a young man drawn into a fight between two groups because of his concern over the welfare of Mr. Palendran, who had been assaulted and continued to be set upon as he lay stricken on the ground. Mr. Laramee’s act of compassion was perversely rewarded with an act of violence as he was taken to the ground by Mr. Yarmoluk’s kick. It may well be the case that the injuries sustained by Mr. Laramee arose because of that single strike, as Mr. Cohen argues but I have no conclusive evidence that this is the case.
[32] Even if I did, that would not take away from what happened next. The single most aggravating feature of the assault was Mr. Yarmoluk’s kicking and punching of Mr. Laramee whilst he lay injured on the ground and curled up in a fetal position to protect himself. Mr. Yarmoluk was joined in this attack by two other unknown males and this malicious and cowardly act could have led to even greater injuries being inflicted on Mr. Laramee who was saved only by the intervention of his friend.
[33] In the circumstances of this case, the sentence suggested by Ms. Jacek, is more than reasonable.
[34] However, as is often repeated, sentencing is a highly individualised process, tailored to the distinct features of the case and the offender.
[35] In terms of mitigation features, I have already referred to a favourable pre-sentence report and family support. Mr. Yarmoluk’s personal background and the need to cope with ADHD in his day to day activities are further factors I take into account as mitigation. I was also impressed by Mr. Yarmoluk’s demonstration of remorse at the conclusion of the sentencing submissions. In many ways, Mr. Yarmoluk’s actions were an act of stupidity fuelled by alcohol which I suspect he regretted a very short time thereafter.
[36] Balancing these factors, I conclude that the appropriate sentence in this case is one of nine months imprisonment.
[37] While I appreciate that this is at the low-end of the sentencing range, I find that it provides denunciation and deterrence whilst at the same time encourages the prospect of rehabilitation. The effects of incarceration, even at a shorter length, will have serious implications for a first time offender in Mr. Yarmoluk’s position. This length of imprisonment will be complemented by a three year period of probation during which Mr. Yarmoluk will perform 150 hours of community service.
[38] Mr. Yarmoluk will also be prohibited from possessing firearms and weapons for life pursuant to s. 109 of the Criminal Code and provide a DNA sample pursuant to s. 487.051 of the Code. Finally, there will be a $200 payment as a result of the Victim Fine Surcharge.
S.A.Q. Akhtar J.
Released: 7 March 2018
COURT FILE NO.: CR-16-10000282-0000
DATE: 20180307
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MATTHEW YARMOLUK
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.