COURT FILE NO.: CRIMJ(P) 359/17
DATE: 2019 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GARY HOFFMAN
Adam Bernstein and Theo Sarantis, for the Crown
Michael A. Moon and Nadia Klein, for the Accused
HEARD: September 30, 2019
REASONS FOR SENTENCE
J.M. Woollcombe J.
Overview
[1] On June 19, 2019, Mr. Hoffman was found guilty by a jury of manslaughter. He is before me for the imposition of a fit and just sentence.
Facts of the Offences
[2] After a guilty verdict by a jury, the sentencing judge must decide the facts upon which the offender is to be sentenced. The Supreme Court of Canada explained in R. v. Ferguson 2008 SCC 6 how this is to be done. The sentencing judge need not arrive at a complete theory of the facts, but must make those factual determinations necessary for the appropriate sentence. The Court set out the two principles governing this exercise at paras. 17-18:
17 Two principles govern the sentencing judge in this endeavour. First, the sentencing judge "is bound by the express and implied factual implications of the jury's verdict": R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge "shall accept as proven all facts, express or implied, that are essential to the jury's verdict of guilty" (Criminal Code, s. 724(2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 CanLII 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
18 Second, when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge "may find any other relevant fact that was disclosed by evidence at the trial to be proven" (s. 724(2)(b)). To rely upon an aggravating fact or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities: (ss. 724(3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 CanLII 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.)). It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as are necessary to deal with those issues.
[3] Some things are readily ascertainable from the jury’s verdict. First, the jury was satisfied beyond a reasonable doubt that Mr. Hoffman, either as a principal or co-principal, committed an unlawful act. The parties agree that the unlawful act was an assault on Mr. Hoffman. Second, the jury was satisfied beyond a reasonable doubt that the assault committed by Mr. Hoffman was dangerous, in that a reasonable person would have foreseen the risk of bodily harm from the assault. Finally, the jury was satisfied beyond a reasonable doubt that the assault committed by Mr. Hoffman caused the death of Mr. Kenyi, meaning that it contributed significantly to Mr. Kenyi’s death.
[4] What is not known from the verdict is the particular role Mr. Hoffman played in the group attack on Mr. Kenyi. Both counsel have made submissions respecting what facts I should find respecting Mr. Hoffman’s role. It is the facts as I find them to be that provide a gauge of his moral culpability.
[5] The challenge in this exercise is that the evidence as to what occurred in the minutes before Mr. Kenyi’s death was not consistent as between witnesses. Further, there were several witnesses whose evidence was internally inconsistent.
[6] Having carefully reflected on the totality of evidence at trial, I am satisfied that the following facts have been proven beyond a reasonable doubt.
[7] On the evening of September 24, 2015, 53-year-old Madad Kenyi was in a park near the Westwood Mall. It was at that park that he was severely beaten and died.
[8] Mr. Kenyi suffered injuries to much of his body, including abrasions and lacerations. Most of his injuries were to his head and upper body. He had a massive skull fracture and subscalp hematoma on the back of his head. His jaw was fractured. There were injuries to his upper back. The expert evidence of the forensic pathologist was that most of the injuries were from blunt force trauma. This could have been caused by a branch being used to hit Mr. Kenyi, or by punches or kicks or by a combination of these.
[9] The head injury, for which considerable force was used, would have led to bleeding on the surface of the brain. The brain would have swelled and been compressed, leading to Mr. Kenyi’s death.
[10] Mr. Hoffman was at the park that evening. He was there with a number of his friends or acquaintances, sitting on a hill that was above the path through the park.
[11] At some point during the evening, Mr. Kenyi, who was with his own friends, engaged with the group with whom Mr. Hoffman was sitting. Mr. Kenyi was intoxicated. Indeed, at the time of his death, Mr. Kenyi’s blood alcohol level was three times that which is permitted for driving. I find that Mr. Kenyi threw a beer bottle at Mr. Hoffman’s group. He appeared to be targeting Mr. Hoffman. I find, further, that Mr. Kenyi pulled a knife from his bag. Mr. Kenyi called Mr. Hoffman out for a fight. While there was some evidence that Mr. Hoffman also pulled out a knife, I found this evidence unreliable and cannot be sure that he did.
[12] The initial altercation dissipated. At some point after the initial interaction, Mr. Hoffman went to a wooded area on the other side of the path through the park. There, he obtained some sort of stick or tree branch.
[13] Shortly after this, a fight ensued. In that fight, Mr. Hoffman, along with at least two others, participated in a group attack on Mr. Kenyi. I accept that Mr. Kenyi was punched, as a result of which he fell to the ground and never got back up. I cannot be sure whether Mr. Hoffman was the person who threw that punch. But, I find that Mr. Hoffman was in the group that then surrounded Mr. Kenyi and beat him while he lay on the ground. Mr. Kenyi was hit with a branch, as well as punched and kicked in his upper body. This group attack caused Mr. Kenyi’s head injury, as well as other injuries that were seen on his body. He was not able to defend himself.
[14] I cannot be sure about everything Mr. Hoffman, personally, did during the attack. I am satisfied beyond a reasonable doubt that he obtained a branch from the woods. I am also satisfied beyond a reasonable doubt that he used that branch to strike Mr. Kenyi at least once. I cannot say whether this particular action is what caused Mr. Kenyi’s death. I am also satisfied beyond a reasonable doubt that Mr. Hoffman was an active participant in the joint attack, that included punches and kicks to Mr. Kenyi while he lay on the ground unable to defend himself. It was as a result of this group attack that Mr. Kenyi’s head was injured and it was as a result of that injury that he died. Finally, I am satisfied that Mr. Hoffman failed to seek any assistance for Mr. Kenyi and fled the scene after the beating and before the arrival of the EMS.
Circumstances of the Offender
[15] A book of sentencing materials was filed by the defence. From the reference letters filed and the Pre-Sentence Report, I have been provided with a considerable amount of information about Mr. Hoffman.
[16] Mr. Hoffman is 52 years old. Born in Jamaica, he moved to Canada with his mother and siblings when he was 13. He completed high school. He describes himself as close to his mother and seems to have a supportive family.
[17] Mr. Hoffman’s mother explains that he is the youngest of four siblings and describes him as a fine young man. She says that he assists with her transportation and care. She also describes him as remorseful for what happened.
[18] Mr. Hoffman was involved with a partner for between ten and twenty years and continues to have a healthy relationship with her. They have two children who are now ages 22 and 16. Mr. Hoffman describes himself as a good father and as close to his children. His former partner has provided a reference letter for him in which she describes him as kind and loving and as an excellent father who loves and supports his children. She also describes him as “an outstanding member of society”. He is not in a relationship now.
[19] Other friends and family have also provided positive letters of reference. Mr. Hoffman is consistently described as a person who is supportive and caring of his extended family. He is said to be generous, kind and devoted to helping others. He is described as being of good moral character and as a decent person. It appears from these letters that everyone who knows him is struggling to understand how he could have committed the offence for which he has been found guilty.
[20] Mr. Hoffman is not employed at this time and supports himself with social assistance. He keeps himself busy doing odd jobs. He has had numerous prior periods of employment within the construction and general labourer industry.
[21] Mr. Hoffman’s criminal records consists of:
a) September 11, 2000: Convictions for obstruct peace officer and possession of a weapon for which he received $200 fines on each and 1 year probation;
b) August 20, 2014: Conviction for assault for which he received a suspended sentence and 6 months probation;
c) November 3, 2014: Conviction for failing to comply with recognizance for which he received a $200 fine.
[22] The sentencing material filed by the defence includes an affidavit from Mr. Hoffman. He surrendered to police for this offence on September 27, 2015 and remained in custody for 151 days, until February 24, 2016. The parties agree that he should be credited for these 151 days on a 1.5 :1 basis, resulting in a credit of 227 days.
[23] While in custody at Maplehurst, Mr. Hoffman says that he was under a lockdown for 38 days. The Crown agrees that he should receive some enhanced credit for this in accordance with R. v. Duncan, 2016 ONCA 5255. The Crown submits that he could receive credit from ¼ to 1 day per day of lockdown. The defence says Mr. Hoffman should receive 38 days credit for this.
[24] In his affidavit, Mr. Hoffman says that when he was released from custody on bail on February 24, 2016, he was under a strict house arrest bail. He could not be out of his home except in the presence of one of his sureties. This bail remained in place until March 29, 2017, a period of 13 months.
[25] On March 29, 2017, the bail was varied such that Mr. Hoffman had a curfew from 9:00 p.m. to 6:00 a.m. He says that since his release, he has been unable to secure formal work. In part, he says that this is because the demolition and construction work that he does often begins at 6:00 a.m., a time before which he could not leave his home. Under cross-examination, however, he agreed that he had been able to work while on bail. He also agreed that the lost opportunity for work at the TTC could have been lost because of his criminal record, or the outstanding manslaughter charge, and that the same could be said about the position with the City of Toronto that he turned down.
[26] Mr. Moon submits that Mr. Hoffman should receive significant credit for the periods of time he spent on house arrest and stringent bail conditions that included a curfew.
Victim Impact
[27] Mr. Kenyi’s daughter, Mariam Kenyi, prepared and read a Victim Impact Statement at the sentencing hearing. In it, she spoke of the profound loss that she and her family have felt from Mr. Kenyi’s death. She describes him as “an amazing soul” who was kind, gentle and respectful. Ms. Kenyi speaks about the fact that she and her brothers have lost their father, and that Mr. Kenyi’s grandchildren have lost the opportunity to have a relationship with him. With his death, a brother, an uncle, a cousin and a best friend have been lost. She describes how she and her family all miss Mr. Kenyi’s hugs and smiles and the conversations with him that they will never again be able to have.
[28] There is no dispute that Mr. Kenyi’s death has caused significant grief and loss to those who were close to him. No sentence can ever compensate for that loss. Nor, of course, is this the objective or focus of sentencing.
Positions of the Crown and Defence
[29] The parties made submissions as to the appropriate range of sentence. They agree that the range of sentence for manslaughter is broad and that the appropriate sentence really depends on the moral culpability of the offender.
[30] The Crown says that I should find Mr. Hoffman hit Mr. Kenyi with a stick and that I could also find that he kicked him while he lay on the ground. Mr. Sarantis submits that the appropriate sentence for Mr. Hoffman is 7 to 8 years, less credit for pre-sentence custody. The Crown also seeks a DNA order and a s. 109 weapons order, ancillary orders to which the defence takes no objection.
[31] The defence position is that when Mr. Kenyi threw the beer bottle, Mr. Hoffman was entitled to respond with violence and that there is what Mr. Moon describes as a “strong flavour of self-defence present” in this case. Counsel says that Mr. Hoffman was over-zealous in his participation in the attack on Mr. Kenyi, but that it was not a premeditated attack, and that he is less culpable than Nathan Bell, who had no reason to attack Mr. Kenyi.
[32] Mr. Moon submits that Mr. Hoffman should receive enhanced credit for his pre-sentence custody and credit for onerous conditions of bail. In total, the defence says he should receive 18 months credit (227 days of pre-sentence custody, 38 days for lockdown credit and about a further 9 months for onerous bail conditions) The defence says that I should impose a further sentence of between 18 months and two years less a day, as well as a period of probation, thus keeping Mr. Hoffman in a provincial reformatory facility.
Analysis
a) The Statutory Principles
[33] Section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[34] Further, s. 718.1 of the Criminal Code provides that:
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
b) Sentencing Principles and the Appropriate Range of Sentence
[35] The jurisprudence suggests that denunciation and general deterrence are the paramount principles of sentence for manslaughter. The sentence imposed must reflect the gravity of the offence and the moral blameworthiness of the offender.
[36] Counsel have, helpfully, provided me with a number of cases in support of their positions. I have reviewed all of those cases and find the following to be of particular assistance in understanding the range of sentence that may apply for cases of manslaughter:
- R. v. Clarke, 2003 CanLII 28199 (ON CA), [2003] O.J. No. 1966: The Court of Appeal emphasized that the range of sentence for manslaughter “can vary immensely”. In this case, there were numerous aggravating features including that the victim was frail and vulnerable, was attacked in his own home, and stabbed with a knife seven times by someone he viewed as a friend. There was some provocation. The Court of Appeal reduced the sentence from 12 years to 9 years.
- R. v. Ma, 2010 ONSC 4803: The offender was one of five people convicted of manslaughter in connection with a group beating of the victim following an aborted drug transaction. The offender was 18 and admitted having kicked the victim five or six times during a group assault. He was sentenced to 9 years in jail.
- R. v. Hermiz, [2007] O.J. No. 1589: The offender pleaded guilty to manslaughter. Hill J. noted that the sentence imposed must “reflect society’s concern for the sanctity of life” and that ordinarily a lengthy sentence must be imposed. He noted that the principles that are predominant are usually denunciation and general deterrence. Hill J. acceded to a joint position of 8 years. Aggravating factors included that the offender carried and used a large knife, made no effort to extricate himself from the confrontation and fled the scene. At the same time, in mitigation were the facts that he was 18 years old, pleaded guilty, had no criminal record and expressed remorse.
- R. v Johnson, 2017 ONSC 3512: The 50-year-old offender struck his roommate around the face with numerous blows and then either punched or kicked him in the ribs. His ribs fractured and his spleen ruptured, causing him to blead to death. Describing the offence as a violent and cowardly attack that caused a painful and slow death, committed by an offender with a long, though dated record, the trial judge imposed an 8 year sentence.
- R. v. Croft, 2018 ONSC 4405: The accused was sentenced to 6 and one half years less pre-sentence custody for manslaughter. After the accused insulted his brother, the victim, armed with a baton, started fighting with the accused with what the trial judge characterized as “reckless abandon”, badly beating the accused. The accused was angry and stabbed his brother once and killed him. Described as a “broken man” who was remorseful, the trial judge noted that the accused had a criminal record and that, given the pre-sentence custody, there was no reason to impose a penitentiary sentence.
- R. v. Bengy, 2012 ONSC 4463: Mr. Modeste was sentenced to 5 years for manslaughter, less pre-trial custody. With others, he was involved in a fatal stabbing, after having been confronted by the victim. The accused had no criminal record and was a hard-working individual of previous good character. The trial judge found that his moral blameworthiness was at the lower range of the spectrum of blameworthiness for manslaughter.
- R. v. MacFarlane, 2012 ONCA 82: The Court of Appel considered the sentence imposed on a 21-year-old first offender who pleaded guilty to manslaughter. He and his co-accused beat the victim, and the co-accused then stabbed him, killing him. The Crown and defence jointly submitted that a four year sentence was fit, with a reduction for pre-sentence custody (which had been 599 days). The Court of Appeal found that the trial judge had erred in the way he dealt with the pre-sentence custody, but upheld as fit the sentence of 2 years less a day after deducting for pre-sentence custody.
c) The Sentence imposed on Nathan Bell
[37] Along with Mr. Hoffman, Mr. Blowes-Serrata and Mr. Nelson, Nathan Bell was charged of manslaughter.
[38] Mr. Bell pleaded guilty to manslaughter in the Superior Court on May 1, 2017. He admitted that he was part of the assault that took place, but I am advised that he did not admit, in the agreed facts on his plea, to having committed any specific acts. He has an extensive criminal record that has been provided to me. It includes, among other offences, assault with a weapon, three assaults and two robberies. He received a sentence of 5 ½ years.
[39] Mr. Bell’s sentence is of some relevance in determining the appropriate sentence for Mr. Hoffman. Mr. Bell is situated somewhat differently than Mr. Hoffman. He was not sentenced on the basis that he did specific things to Mr. Kenyi. He pleaded guilty and accepted responsibility. On the other hand, his criminal record is much more significant than that of Mr. Hoffman.
[40] In my view, Mr. Hoffman’s sentence should be higher than that imposed on Mr. Bell, notwithstanding Mr. Bell’s more significant criminal record. Mr. Hoffman does not benefit from the significant mitigating circumstance of having pleaded guilty and accepted responsibility. Further, unlike Mr. Bell, I have found that Mr. Hoffman obtained a tree branch and then used it as a weapon on Mr. Kenyi.
d) Mitigating and Aggravating Factors
[41] The mitigating circumstances in this case are the following:
- Mr. Hoffman has a supportive circle of family and friends who describe him as a kind and thoughtful person who has been a contributer to his immediate community;
- The offence was in no way pre-meditated and may have been in part as a result of Mr. Kenyi calling Mr. Hoffman out for a fight. I do not accept, however, the defence position that Mr. Hoffman was acting in self-defence, or anything resembling self-defence, when he partook in the group assault on Mr Kenyi.
[42] I find that the following factors are aggravating:
- Mr. Hoffman used a branch he retrieved as a weapon;
- Mr. Hoffman took part in a callous group attack on an individual who was intoxicated and incapable of defending himself;
- The group attack continued even after Mr. Kenyi lay on the ground defenceless;
- Mr. Hoffman chose to do nothing to seek assistance for Mr. Kenyi and appears to have left him on the path in the park to die;
- Mr. Hoffman has a previous criminal record.
e) Credit for pre-sentence custody
[43] As indicated, the parties agree that Mr. Hoffman should be credited for 151 days of pre-sentence custody on a 1.5 :1 basis, resulting in a credit of 227 days.
f) The Issue of credit for lock-down
[44] There is no dispute that Mr. Hoffman was subjected to the challenging conditions of protracted lockdown while incarcerated. The evidence before me is that he had 37 days of “full-lock-down” in which he was confined to his cell for the 6.75 hours when he would normally have been in the dayroom. He had one day of partial lock-down.
[45] When inmates are subjected to lockdown conditions, courts may give them enhanced credit for their time in custody. On the basis of the evidence before me, I will reduce Mr. Hoffman’s sentence by 20 days for the 38 days of lockdown.
g) The issue of credit for onerous conditions of bail
[46] As the Court of Appeal explained in R. v. Adamson, 2018 ONSCA 678 at paras. 106-107, while no statutory provision expressly requires consideration of time spent on stringent bail conditions as a mitigating factor on sentence, trial judges are authorized to consider this time and should explain how time spent on predisposition house arrest was considered in the imposition of sentence. There is, however, no formula setting out the specifics of how this time is to be credited. Rather, such factors as the period of time spent under house arrest, the stringency of the conditions, the impact on the offender’s liberty and the ability of the offender to carry out normal relationships, employment and activity may be considered.
[47] Mr. Hoffman spent 13 months under house arrest. In his affidavit, he said that the strict terms of his bail caused him to suffer emotional, physical and mental hardship.
[48] I accept that Mr. Hoffman’s initial house arrest bail caused him some personal hardship. For about 13 months, he could not leave his home unless he was with one of his sureties, which included his partner and his sister. I accept that this would have impacted on his ability to work and on his life more generally. He will receive 4 months credit for this time.
[49] After Mr. Hoffman’s bail was varied on March 29, 2017, he had a curfew from 9:00 p.m. until 6:00 a.m. During this time, the evidence before me is that he was able to obtain some employment, and that some of his job opportunities were likely lost because of the nature of the charges that he faced. I have little evidence before me that would warrant a conclusion that the terms of this release are a significant mitigating circumstance. While it is never easy to be on a form of release, the fact that one is on bail does not necessarily lead to a finding of credit being given as a result of hardship or deprivation. There is minimal evidence of any real hardship to Mr. Hoffman from his bail conditions once the house arrest term was loosened and a curfew was imposed. Moreover, had there been a difficulty with the curfew preventing him from work from 6:00 a.m., one would have expected that a bail variation would have been sought to accommodate his employment. There is no evidence before me that this ever happened.
[50] In all the circumstances, I accept that the curfew and long period of bail conditions had some negative impact on Mr. Hoffman. I will credit Mr. Hoffman with 30 days for the time he spent under a curfew since March 29, 2017. I include in this hardship the fact that he missed his father’s funeral, though I do that noting that the reason for his bail not having been varied to accommodate his attendance at the funeral is, in my view, not clear.
h) The Sentence to be Imposed
[51] In order to determine a fit sentence, I have considered the principles of sentence, the appropriate range of sentence, the principle of parity and the aggravating and mitigating circumstances.
[52] I do not accept the defence position that a fit sentence for Mr. Hoffman’s moral culpability is in the range of 3 ½ to 4 years. While I accept that the case law before me reveals a significant range of sentence, it seems to me that for an offender like Mr. Hoffman who partakes in this kind of brutal, senseless group attack, the moral culpability is much higher than would be reflected by a sentence in the range proposed by the defence. I decline to accede to Mr. Moon’s request that I impose a sentence that keeps Mr. Hoffman in the reformatory range.
[53] At the same time, I think the range proposed by the Crown is too high. The cases relied upon in support of the 7 to 8 year sentence have offenders who are in my view, more morally culpable in that their roles in causing death were more significant or the killings themselves were aggravated by other factors.
[54] In my view, a fit sentence for Mr. Hoffman is 6 and one half years, less the appropriate credit.
[55] As I have explained, Mr. Hoffman will receive credit of:
- 227 days credit for 151 days pre-sentence custody;
- 20 days credit for 38 days of lockdown;
- 4 months credit for 13 months of house arrest bail;
- 30 days credit for bail with curfew from March 29, 2017 until now.
[56] This means he will receive credit of 399 days from his 6 and one half year sentence. This leaves a total remaining sentence of 5 years and 149 days.
i) Ancillary Orders
[57] There will be a s. 109 weapons prohibition order made under s. 109(2)(a) for 10 years and under 2(b) for life.
[58] There will be a DNA order under s. 487.051(1) as manslaughter is a primary designated offence under s. s. 487.04.
Woollcombe J.
Released: October 18, 2019
COURT FILE NO.: CRIMJ(P) 359/17
DATE: 2019 10 18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GARY HOFFMAN
REASONS FOR Sentence
WOOLLCOMBE J.
Released: October 18, 2019