Court File No. 16-00001931
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SEM GOLOV
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE I. ANDRE
on June 14, 2018, at BRAMPTON, Ontario
APPEARANCES:
A. Berg Counsel for the Crown
A. Esson Counsel for the Crown
L. Shemesh Counsel for Sem Golov
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
WITNESS
Exam. in-Ch.
Cr. Exam
Re- Exam
EXHIBITS
EXHIBIT NO.
PAGE NO.
Transcript Ordered
June 14, 2018
Transcript Required by
ASAP
Transcript Completed
November 18, 2018
THURSDAY, JUNE 14, 2018
R E A S O N S F O R S E N T E N C E
ANDRE, J. (Orally):
A jury found Mr. Sem Golov not guilty of second degree murder, but guilty of manslaughter in the death of William Maassen on July 7th, 2015.
The Crown seeks a sentence of nine years imprisonment, while the defence submits that a sentence of time served, which amounts to approximately four years is the appropriate sentence.
BACKGROUND FACTS: On August 7th, 2015, Mr. Golov fatally stabbed William Maassen in the back, in the back of a Mississauga plaza. Mr. Golov and Mr. Kryslak Galant had a chance encounter with Mr. Maassen in a ravine at the back of the plaza. Mr. Galant testified during the trial that Mr. Maassen and Mr. Golov had exchanged expletives and that Mr. Golov had pushed Mr. Maassen away.
Mr. Maassen later approached Mr. Golov and Mr. Kryslak Galant and appeared to be spoiling for a fight. Mr. Kryslak Galant then decided to leave the scene and rode away on his bicycle. While riding away from the scene, Mr. Kryslak Galant saw Mr. Golov repeatedly punch Mr. Maassen in the upper chest area. Mr. Maassen doubled up and clutched his stomach with both hands. Mr. Golov testified that he stabbed Mr. Maassen in self defence after he had unsuccessfully tried to stop Mr. Maassen from strangling him.
Mr. Golov testified that Mr. Kryslak Galant rode away from the scene. He remained at the back of the plaza to change his t-shirt, which was drenched with perspiration. After doing so, Mr. Maassen had approached him, grabbed him around the throat. Only then did he retrieve a knife that he was carrying and with his eyes closed, "wildly slashed", at Mr. Maassen.
Mr. Golov further testified that he did not intend to kill Mr. Maassen and did not know he had injured Mr. Maassen when he ran away from the scene of the stabbing. He testified further that had he known, had he knew that Mr. Maassen was injured, he would have rendered assistance to him and would have called 911. However, Mr. Golov conceded in cross-examination that while fleeing the scene, he saw blood on the knife with which he had stabbed Mr. Maassen, yet did not return to render assistance or call for help.
The forensic pathologist who conducted an autopsy on Mr. Maassen's body found four stab wounds in the upper chest area, all from, "In the front to the back". The fatal wound was located approximately one inch above Mr. Maassen's left nipple.
The police charged Mr. Kryslak Galant on August 27th, 2015 with Mr. Maassen's murder, then subsequently withdrew the charge. In his initial statement to the police, Mr. Kryslak Galant denied any knowledge of the incident and falsely indicated that he was with a friend on August the 7th, 2015. The police subsequently arrested Mr. Galant, Kryslak Galant's friend, they later charged Mr. Kryslak Galant with obstruct justice. Mr. Kryslak Galant then gave a second statement to police on October 2nd, 2015 in which he described what he had seen on August 7th, 2015.
During the trial, Mr. Kryslak Galant testified that he knew that if he'd be assisting the police in this case against Mr. Golov, the police would withdraw the charge against him.
In a closing address to the jury, defence counsel advised the jury to disregard Mr. Kryslak Galant's evidence given its integral inconsistencies, his prior inconsistent statements, his motivation to lie about what had happened and the fact that he was an unsavoury witness.
The Crown, in her closing address, submitted that much of Mr. Kryslak Galant's evidence in the trial was confirmed by submitted evidence, photographs, and by the testimony of Mr. Galant himself.
GOVERNING PRINCIPLES: A sentence for manslaughter conviction pursuant to section 236 of the Code can range from a non-custodial disposition to life imprisonment. The fundamental principle of sentencing under section 718.1 of the Criminal Code is that a sentence, "Must be proportionate to the gravity of the offence and the degree of responsibility of an offender." In R v. Nur, 2015 SCC 15 [2015] 1/SCR773 at paragraph 43, the Supreme Court of Canada made reference to the fact that sentencing is, "a highly individualized exercise, tailored", to reflect both the gravity of the offence but also the blameworthiness of the particular offender.
In R v. Nasogaluak, 2010 SCC 6 [2010] 1/SCR206 at paragraph 43, the Supreme Court noted the following:
No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case.
The Supreme Court of Canada also noted in Nasogaluak at paragraphs 42 to 43,
Whatever the rationale for proportionality, however, the degree of censure required to express society’s condemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary.
In R v. Ipeelee, 2012 SCC 13, 2012 SCC13 , in brackets at paragraph 38, the Supreme Court of Canada noted the following,
Despite the constraints imposed by the principle of proportionality, trial judges enjoy a broad discretion in the sentencing process. The determination of a fit sentence is, subject to any specific statutory rules that have survived Charter scrutiny, a highly individualized process. Sentencing judges must have sufficient manoeuvrability to tailor sentences to the circumstances of the particular offence and the particular offender. Appellate courts have recognized the scope of this discretion and granted considerable deference to a judge’s choice of sentence.
In R v. Lacasse, 2015 SCC 64, 2015 SCC64 () [2015] 3SCR1089, The Supreme Court of Canada noted that sentence ranges are not inflexible, while in R v. Foster 2018 ONCA 53, the Court of Appeal noted at paragraph 133 that sentencing ranges, "are primarily guidelines not ossified rules."
ANALYSIS: My primary function as a sentencing judge is to determine, pursuant to section 718.1 of the Code, what is a proportionate sentence in this case, having regard to the gravity of the offence and the degree of responsibility of Mr. Golov. This function necessarily involved the consideration of the aggravating and mitigating factors of the case and the applicable sentencing jurisprudence. However, prior to engaging in this analysis, I must make certain factor determination as a result of the jury's verdict.
The defence counsel submits that it is reasonable to conclude that the jury found that Mr. Maassen had indeed tried to strangle Mr. Golov, and that Mr. Golov had used excessive force in repelling the attach. She submits that Mr. Golov should be sentenced on the basis that he used more force than was necessary to counter Mr. Maassen's attack on him.
The Crown submits and the jury clearly rejected, that Mr. Golov's claims about having acted in self defence and should be sentenced accordingly.
APPLICABLE PRINCIPLES: Section 724(2) of the Criminal Code RSC 1985,c. C-46 provides that,
Where the Court is composed of a judge and jury, the Court
(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty; and
(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented by either party with respect to that fact.
In R v. Landry, 2016 NSCA 53, 338 CCC (3d) 162 at paragraphs 49 to 52. The Nova Scotia Court of Appeal set out the following guidelines for sentencing judges to make factual finding following a verdict, a jury's verdict:
The sentencing judge shall accept as proven all facts, express or implied, that are essential for the jury’s guilty verdict.
When the jury finding is ambiguous, the sentencing judge should not attempt to follow the logic of the jury. Instead, he or she must make their own independent determination as to the relevant facts.
The sentencing judge should only find those facts necessary to permit the proper sentence to be imposed.
The sentencing judge may not find as fact things that were rejected by the jury’s verdict.
Following a jury verdict, an accused is not entitled to be sentenced according to the most lenient view of the circumstances consistent with the jury verdict.
For any aggravating fact the sentence judge must be satisfied that the evidence is sufficiently cogent to enable him or her to find it proved beyond a reasonable doubt.
See also Ferguson v. the Queen 2008 SCC 6, [2008] SCJ 6; R v. Brown 1991 73 (SCC), [1991] 2 SCR518 at page 523.
FACTUAL FINDINGS: In my view, the jury rejected Mr. Golov's testimony that he acted in self defence. By logical extension they also rejected his testimony that Mr. Maassen had tried to strangle him. The verdict suggests that the jury concluded that Mr. Maassen had provoked Mr. Golov by calling him derogatory names and inviting him to a fight.
I am entitled to make my own factual findings that are necessary for a determination of a proportionate sentence in this case. I do not accept Mr. Golov's version of events as it relates to the actual stabbing for the following reasons: First, Mr. Golov's testimony about being strangled by Mr. Maassen is directly contradicted by the testimony of Mr. Krystak Galant who saw Mr. Golov repeatedly, "Punch Mr. Maassen in the upper chest area". While I have concerns about the credibility of Mr. Krystak Galant's testimony, the reliability of his evidence was bolstered by the pathologist's description of the stab wounds on Mr. Maassen's body.
More importantly, the injuries suffered by Mr. Maassen are, in my view, entirely inconsistent with Mr. Golov's version of events. The wounds were from the front of Mr. Maassen's chest to the back of his chest. There were no slashing injuries on Mr. Maassen's chest. I therefore find that Mr. Golov's account of what happened to be beyond belief.
Accordingly, I am not prepared to sentence Mr. Golov on the basis that he had used more force than was necessary to repel Mr. Maassen's attack on him. I also find that Mr. Golov had ample opportunity to leave the scene, just as Mr. Kryslak Galant had done before this tragic event. He could easily have run away from the scene before the stabbing, just as he did after the stabbing. Mr. Kryslak Galant and himself had been verbally accosted by the inebriated Mr. Maassen before the fatal encounter. Mr. Kryslak Galant had ridden away from the scene after sensing that there would be an escalation of the event. Rather than follow the lead of the younger Mr. Kryslak Galant, Mr. Golov chose to remain at the scene on the pretext of changing his t-shirt. His proffered reason for doing so runs counter to his testimony that he was fearful of Mr. Maassen.
I therefore find that the Crown has proven beyond a reasonable doubt that Mr. Golov was not acting in self defence when he stabbed Mr. Maassen.
I take note of the aggravating and mitigating factors. The aggravating factors are as follows: 1) Mr. Golov was carrying a knife, which he used to stab Mr. Maassen.
Mr. Maassen was unarmed and clearly inebriated. His blood/alcohol concentration was 180 milligrams of alcohol to 100 millilitres of blood.
Mr. Golov stabbed Mr. Maassen four times in the upper chest area.
While Mr. Maassen was heavy and approximately the same height as Mr. Golov, the latter, who worked in the construction industry, was younger and in better physical shape than Mr. Maassen.
Mr. Golov had a safe avenue of escape either to the east or the west of the area where he fatally stabbed Mr. Maassen.
Mr. Golov did not seek help for Mr. Maassen after the stabbing, neither did he offer any assistance to him.
Mr. Golov disposed of the knife and washed his clothes after he got to his home after the incident.
The death of Mr. Maassen has had a devastating effect on members of his family, particularly his mother and brother, both are whom have written poignant victim impact statements.
The mitigating factors are as follows:
Mr. Golov is a youthful first offender.
Mr. Golov was the victim of an incident in August of 2013, in which he suffered six stab wounds which required surgery.
Mr. Golov's brother was the victim of a shooting.
Mr. Golov has expressed remorse for the killing of Mr. Maassen.
Mr. Golov has a very supportive family.
While in custody, Mr. Golov successfully completed a number of correspondence courses run by a religious organization called The New Light Ministries.
There was an element of provocation by Mr. Maassen in this incident.
SENTENCING JURISPRUDENCE: The Crown relies on a number of cases involved in the offence of manslaughter to support its position that the appropriate sentence range for this type of offence is 8 to 12 years. I will provide a sampling of these cases relied upon by the Crown.
The main case relied upon by the Crown is the 2003 Court of Appeal decision in R v. Clarke, 2003 28199 (ON CA), 57WCB2D602; 2003 28199 where the Court reduced a 14 year term of imprisonment imposed by the trial judge to 9 years imprisonment. The appellant had stabbed the, "emaciated and frail" victim seven times in his rooming house with two of wounds proving to be fatal.
The Court of Appeal listed the following aggravating factors in this case:
(a) The extremely frail and vulnerable nature of the victim, who was defenceless against this armed attack;
(b) The victim was attacked in his own home;
(c) Although not in a position of trust, the appellant was looked upon by the deceased and others as a friend who provided some assistance and friendly care to the victim in the past and he abused this relationship by killing Daniel Cousins;
(d) The use of a knife during the commission of the offence;
(e) The brutality of the attack, resulting in seven stab wounds in the chest area, two of which could have caused the death, and some of which were inflicted with considerable force, as shown by the wound going through the breast bone and the pericardial sac into the pulmonary artery;
(f) The appellant wrapped the knife in paper and plastic and hid it in a plastic bag beside recycling boxes outside the building after the killing;
(g) The appellant waited at least 20 minutes before making an anonymous 911 call for medical help for his supposed friend, who was not killed immediately by the stab wounds;
(h) The appellant successfully diverted suspicion away from himself at the scene by purporting to care for the deceased’s welfare and suggesting possible routes which some unknown assailant may have taken into the building;
(i) The appellant characterized himself as flying into “pure rage” against a friend who had only slightly provoked him; and
(j) The devastating impact on the family of Daniel Cousins.
The Court of Appeal placed some weight on the fact that the appellant had adapted well to prison life, had done school work and other courses and the "Provocation factor" in its decision. See paragraphs nine and ten.
The Court of Appeal confirmed the sentence range for "aggravated manslaughter', in R v. Cleyndert, 71WCB2D (146) 2006 33851 at paragraph 4. Similarly, Justice Wein in this court applied the sentence range in R v. Medwid, 2009 OJ 1992 where the 18-year-old accused stabbed the victim and cut his throat while the accused was inebriated by imposing a sentence of 11 years in the penitentiary.
In R v. Reid 2012 Carswell Ontario 16997; [2012] OJ No. 6313, Fuerst J. noted at paragraph 53 that the, "various decisions referred to by Crown and defence counsels demonstrate that sentences as low as six years, and as high as 12 years in jail have been imposed in manslaughter cases where there are factors that significantly aggravate the offence."
DEFENCE CASES: The defence relies on the case of R v. Ibrahim, 2006 OJ No. 1134, where a taxi driver who fatally struck a skateboarder with his taxi received a four year prison sentence. The Court placed considerable weight on the accused's criminal record. The accused's strong family and communal ties, his remorse and prospects for rehabilitation.
In R v. Iozzo, 2004 OJ No. 3641 (SCJ), The 25 year old first offender who was convicted of manslaughter after fatally striking the victim with a bottle in the neck received a three year term of imprisonment. The Court considered the mitigating factors in the case, including the plea of guilty, the expression of remorse, compliance with strict bail conditions and the accused exemplary life before the incident.
In R v. Torrezao, 2018, Ontario Judgment 2198, (SCJ) Justice Sproat in this jurisdiction sentenced an offender who had been convicted by a jury of manslaughter to three years in prison. The Court found that the deceased had been the aggressor in numerous prior incidents in the neighbourhood. On April 27th, 2014 the then inebriated deceased was mistakenly dropped off at the home of the accused who emerged from his house and fatally stabbed the victim with a sword. The Court considered the following factors in determining the appropriate sentence, at paragraph 56:
a) Mr. Torrezao chose a lethal weapon
b) Relatively little force was used in the sense he jabbed the sword forward and then pulled it back
c) The 10 cm. wound was significant
d) There was no gratuitous violence or brutality
e) There was virtually no forethought or planning
f) The act was not complex
g) There was a history of prior threatening incidents directed at Mr. Torrezao and his family by Mr. Budhu and his associates
h) The act was over in a few seconds and
i) The element of chance was overwhelming in terms of bringing the two men into contact that night and in terms of the sword causing death as opposed to a much less serious injury.
R v. Corbett, 2015 OJ No. 5125 SCJ, a 28-year-old accused who had been convicted by a jury of manslaughter was sentenced to five years imprisonment less 14 months of pretrial credit. The accused had stabbed his former room mate to death during a shoving match. The trial judge noted that the following aggravating and mitigating factors at paragraph 23.
Aggravating factors:
Steven Corbett armed himself with a knife in his confrontation with Shawn McCan, M-C, small C, capital C-A-N, one word;
He caused the death of another human being;
He could have let Shawn McCan take the TV, he could have sued Shawn McCan in small claims court or taken the matter before the landlord and tenant board on issue of rent arrears;
He struck at Shawn McCan towards the upper body which would, of necessity, resulted in serious bodily harm;
He tried to hide the knife, albeit clumsily;
He made no effort to assist the victim after the stabbing;
He fled the scene. He was not there when the police arrived and hence unable to assist the police in identifying the victim;
He disposed of his clothing and the clothing of his daughter, on which there would have been blood and hence evidence;
He encouraged Ashley and her mother to lie to the police to direct suspicion away from himself.
The mitigating factors:
Although somehow it was after the event, Steven Corbett did surrender himself to the police;
He was 25 at the time of the offence, he is 28 now and he's young;
He has a minor criminal record mostly as a young offender, no convictions for crimes of violence and no involvement with the police since 2008;
He has always been gainfully employed;
There was an element of self defence in this confrontation with Shawn McCan which the jury rejected as a defence to the charge of second degree murder but which in my view mitigates the moral blameworthiness of the accused to a degree;
He had a positive relationship with his daughter Lily, although the evidence is that Steven Corbett was a good father to Lily in many ways, this must be tempered by his having her in an environment in which his girlfriend Catherine McKeon (ph) was trafficking in drugs, also he could have let Shawn McCan take the TV and dealt with the issue in the forums that are available to the public for resolving this kind of dispute, this would have avoided exposing Lily to the terrible events which occurred outside his residence while she was there. I offer the opinion that I do not think that should foreclose him having involvement with Lily for all time.
What is the appropriate sentence in this case having regard to the aggravating and mitigated factors and the applicable jurisprudence? The cases summarized are all fact specific. There are similarities between the facts in Clarke and this case, but the same thing could be said about the facts in Corbett and the facts in this case.
There are factors present in Clarke that are not present here. These include the special relationship between the accused and the victim, the considerable force used to stab the victim, and the seven stab wounds inflicted by the accused in Clarke. On the other hand, the accused in Clarke called for medical help for the victim although he delayed before doing so.
The aggravated and mitigating factors in Corbett are also similar to those in this case, however, there is no mention of the devastating effects of the accused action on the victim's family in Corbett. Furthermore, the Court in Corbett found that there "was an element of self defence in the accused confrontation with the deceased which the Court held mitigated the moral blameworthiness of the accused to some degree."
I am not prepared to arrive at such a conclusion in this case. On the other hand, Mr. Golov was a victim of a brutal stabbing in August 2013 in which he was stabbed six times. This unfortunate incident may reduce his moral blameworthiness for the offence, although I should note parenthetically that it cuts both ways. One would have thought that having been brutally stabbed, Mr. Golov would have extricated himself from the scene just as Mr. Kryslak Galant had done. He remained at the scene to change his shirt when he could have done so at any other location his decision to do so somewhat tempers his contention that he was fearful of Mr. Maassen.
In many respects this was a senseless killing of an inebriated man. The incident occurred because Mr. Golov was carrying a knife. He was not engaged in a struggle with Mr. Maassen and was not being overwhelmed by the victim. He could have avoided a confrontation had he chosen to do so. After the stabbing he fled the scene and threw away the knife. He then washed his clothes to avoid detection.
On the other hand, Mr. Golov is a youthful first offender who is gainfully employed at the time of the stabbing. He was a victim of a brutal attack one year earlier and suffered serious injuries as a result. That incident could have very well impacted his emotional state when confronted by Mr. Maassen.
Mr. Golov has significant community support and has done a number of courses while incarcerated. I also find that Mr. Golov has shown a great deal of remorse. Finally, there was a degree of provocation in this case which warrants some sentence mitigation.
In sentencing Mr. Golov, I am mindful that whatever sentence I impose will not have the effect of bringing Mr. Maassen back to life. However, having considered all the relevant factors, I find that a term of imprisonment of six years, less pretrial custody, is an appropriate sentence in this case. Mr. Golov has spent approximately 33.5 months in pretrial custody for which he will receive credit on 1.5 to 1 basis or approximately 50.5 months. He will therefore be required to serve an additional 21.5 months in custody.
ANCILLARY ORDERS: There will be a DNA order for life, manslaughter being a primary designated offence. There will be a section 110 order for life and three, there will be a victim fine surcharge, Madame Crown.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
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certify that this document is a true and accurate transcript of the recording
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Regina v. Sem Golov
in the
Brampton Court
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(Name of Court)
taken from Recording No.
3199_402_20180614_084150__30_ANDREI.dcr
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