COURT FILE NO.: CR-18-1038

DATE: 2019 11 20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

K. Athanas for the Crown

• and -

DAMIAN DULLAL

M. Mattis, for the Defendant

HEARD: November 1, 2019

REASONS FOR SENTENCE

SHAW J.

Circumstances of the Offence

1Mr. Dullal was convicted by a jury on June 21, 2019 with assault causing bodily harm contrary to s. 267 of the Criminal Code of Canada. Mr. Dullal was part of a group of four young men who assaulted M.C. at the Mount Pleasant Go Station in Brampton, Ontario on November 19, 2015. The assault, which was not provoked, occurred as M.C. walked through a tunnel at the Go Station.

2Videotaped surveillance of the assault was filed as evidence during the trial. M.C. identified himself in the surveillance. He did not know and could not identify any of the individuals involved with assaulting him, including Mr. Dullal. Mr. Dullal was identified by Constable C. Blaney who investigated the matter and took a statement from Mr. Dullal on January 14, 2016.

3M.C. was walking home when the assault occurred. The videotaped surveillance showed a group of four men walk towards M.C. Within five seconds, one of the men picked him up from behind and threw him to the ground. Within seconds, Mr. Dullal and two of the men began kicking and punching M.C. who was lying on the ground in a fetal position. One of the four men did not participate in the assault but stood off to the side. The assault was brief but violent. M.C. was then dragged around the corner to another tunnel and out of view of the camera. Shortly thereafter, the group of four men, including Mr. Dullal, was seen walking away leaving M.C.

4Paramedics were called to assist M.C. who sustained an injury to his head that required medical attention. He testified that he had five staples to treat his injury.

5Mr. Dullal chose to participate in the assault. He did not stand to the side as another young man did but was seen with two other men assaulting M.C. as he lay on the ground.

The Circumstances of the Offender

6A Pre-Sentence report was filed as evidence. Both Crown and defence counsel agree that it is, for the most part, a favourable report.

7Mr. Dullal had just turned 18 years of age at the time of the offence. He is now 22 years of age. He is a first-time offender. He has had no subsequent involvement with the criminal justice system.

8Mr. Dullal has three sisters ranging in ages of 21 and 25. His parents separated when he was three. He was raised by his mother, Joss Covenoho, who worked two jobs to support her four children as his father did not provide any support. He met his biological father when he was 14 and moved in with him briefly in 2014. He returned to live with his mother two months later and has had no contact with his father since.

9Ms. Covenoho reported to the author of the Pre-Sentence report that Mr. Dullal was neglected as a child given the amount of work she had to do to support her family. She indicated that Mr. Dullal was unable to participate in extra-curricular activities due to their financial struggles. At the age of 17 he was diagnosed with Anti-social Personality Disorder and Attention Deficit Disorder.

10Mr. Dullal completed grade 11. He left school to start working. He indicated that he did not like school. He has two credits remaining to complete his high school diploma. He admitted to being suspended on two separate occasions due to inappropriate language and truancy. He reported having average grades. He returned to an adult education program in September 2019.

11Mr. Dullal has worked for various temporary employment agencies at different factories. He has worked in restaurants and renovation companies. The longest period of employment was nine months. He is currently employed working full-time for an office furniture installation company. His employer confirmed that he had been employed since January 2019 and is making an annual salary of $38,000.

12Mr. Dullal uses marijuana periodically to help calm him down and to relax and sleep. He does not have any substance abuse issues. He reported that he does not have any hobbies but hangs out with people from the neighbourhood.

13In the Pre-sentence report, Mr. Dullal was described as being cooperative and forthcoming in his responses and appeared open to discussing various aspects of his life.

14Mr. Dullal’s mother indicated that Mr. Dullal has both positive and negative influences in his life. She described him as a quiet and loving person. She reported that he has a lot of friends due to his nature. It was reported that Mr. Dullal has a positive relationship with his siblings and mother. He currently lives with his mother and sister.

15Peel Regional Police Constable Blaney reported that Mr. Dullal was cooperative during his arrest and interview.

Position of the Parties

16The Crown acknowledges that there is a significant range in the sentencing for this type of offence from non-custodial to a sentence of penitentiary time. The Crown’s position is that based on the facts of this case, the range of sentence is 6 to 9 months followed by a period of probation.

17Defence counsel submits that the appropriate sentence is a suspended sentence followed by a period of two years probation.

18Crown and defence agree on a DNA ancillary order. While they both agree on a section 110 weapons ban, the Crown seeks a ten-year prohibition whereas the defence seeks five.

The Sentencing Principles

19The principles of sentencing are set out in sections ss. 718, 718.1 and 718.2 of the Criminal Code. The objectives of sentencing are deterrence, denunciation, separation of offenders from society, rehabilitation, reparation to the victims and promotion of a sense of responsibility for the harm to victims. In R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, the court found that proportionality is a guiding principle in sentencing. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Also of importance is the principle of parity, meaning that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Caselaw

20The Crown submitted one case for consideration. In R. v. Vitanza, [2003] O.J. No. 5805, the court sentenced the offender to a period of incarceration of four months followed by twelve months probation.

21In that case, the offender was 18 years of age at the time he committed the offence. The offence occurred in a public area. A large group of individuals were involved. The court found that the offender inflicted serious blows on the victim including winding up and kicking the victim in his head, which had the potential to cause life altering injuries. The injuries to the victim were substantial including bruising, lacerations and a fractured wrist. He was unable to pursue his normal activities for twelve months after the assault.

22The court found that an aggravating factor was that the offence was committed through the assistance of a group. The court also noted that it was an unprovoked assault and that the offender made a decision to pursue the assault when the opportunity arose to avoid further physical harm to the complainant.

23Defence counsel relied on R. v. Hunter, [2015] O.J. No. 253. In that case, the offender was convicted by a jury of aggravated assault. The offender smashed a beer bottle over the plaintiff’s face. The offender was raised in an unstable home environment and suffered a turbulent childhood. He had a criminal record. Since the offence he had married, had a child and was steadily employed. He was an admitted alcoholic.

24Aggravating factors were that there was no provocation, the victim was unarmed and the assault resulted in serious injury in the form of a permanent facial scar. Mitigating factors were that the offender had been gainfully employed for most of his adult life, was in a common law relationship and was a step-father. He had not consumed any alcohol since the offence. The court found the appropriate sentence was a suspended sentence followed by three years probation.

25In R. v. Garcia, [2014] O.J. No. 1527, the offender was convicted by a jury of assault causing bodily harm. The offender attempted to smother the complainant. She tried to call the police and he dragged her by the hair, stomped on her and attempted to choke her. He did not use a weapon or object in assaulting her.

26Aggravating factors were that it was a vicious and prolonged assault that resulted in injuries, the victim was a member of a vulnerable group and the offender had no family or any community connections to support him. Mitigating factors were that the offender had no criminal record, had led a difficult life, was born with a hearing disability, had limited English skills and lived a life of isolation. Due to his hearing disability and language barriers he was unable to get stable employment which resulted in an impoverished life and social isolation. The victim’s injuries were not severe or permanent. There were no fractures or open wounds that required sutures. The court found that it was an appropriate case for a suspended sentence followed by a period of probation. The court found the need for a specific deterrence was not an issue given the offender’s lack of criminal record and any evidence of general bad character. The sentence recognized the importance of general deterrence and protection of the public in that with a suspended sentence the accused could be brought back before the court and re-sentenced if he breached the probationary conditions. The court found that allowing the offender to remain in the community did not pose a great risk to the community given his lack of a criminal record and absence of evidence of a substance abuse or bad character. The court sentenced him to a two-year suspended sentence, with two years probation.

27In R. v. Adamson, [2017] O.J. No. 1454, the offender plead guilty to assault causing bodily harm. While at a bar the offender got into an argument which continued outside on the sidewalk. The offender threw a bottle of beer in the direction of the complainant and it struck him in the right side of his face and right cheek, causing a laceration. He was taken to the hospital and seven stitches were required. The offender expressed her remorse for her actions in court. She had no criminal record and had overcome significant difficulties in her life including addiction to cocaine. She had strong family support. The court also noted that she was a relatively youthful first offender and as such it was important to consider the principle of restraint.

28At para. 31 in Adamson, the court held that in a case involving assault causing bodily harm, denunciation and deterrence are paramount sentencing principles, but rehabilitation, particularly where the accused is a youthful first offender, must not be discounted or ignored and general deterrence and denunciation should not be over-emphasized.

Analysis

29Mr. Dullal is a youthful first-time offender and, as such, it is important to explore all other dispositions before imposing a custodial sentence. (R. v. Stein (1974), 1974 1615 (ON CA), 15 C.C.C. (2d) 376 (Ont. C.A.), at p. 377). Furthermore, when dealing with a first-time offender, the restraint principle requires that a sentencing judge consider all sanctions apart from incarceration and where incarceration must be imposed it should be for a short a term as possible. The principle of restraint also requires the sentencing judge to consider rehabilitation in determining the appropriate length of the sentence: R. v. Batisse, 2009 ONCA 114, [2009] O.J. No. 452 at paras. 32-34. In serious cases, and those involving violence, rehabilitation alone is not the determinative factor, and general deterrence and denunciation are also significant factors to be considered: Batisse at paras. 32-34.

30Where there is a strong chance of complete rehabilitation of a young offender, the suspension of sentence with the imposition of controls to bring about rehabilitation is a suitable method of protecting the public: R. v. Thompson, 1983 5099 (NS CA), [1983] N.S.J. No. 414, 58 N.S.R. (2d) 21, at p. 21 (N.S.C.A.)

31With these principles in mind, I now turn to Mr. Dullal as sentencing is unique to each individual.

32Assault causing bodily harm is a serious charge. The assault, while not involving a weapon, was swift and violent. It was also unprovoked. Mr. Dullal was part of a group and he chose to participate in the assault. Although M.C. did not present a victim impact statement, his evidence was that he was injured and required medical attention for the wound to his head.

33Mr. Dullal does not have a criminal record. He had just turned 18 at the time of the offence and had been diagnosed one year earlier with some mental health conditions. His mother admitted that he had a difficult childhood as she raised him as a single parent and she worked long hours to support her four children. Importantly, at this critical time in Mr. Dullal’s life, his family is supportive and he is currently living with his mother and sister. He is working full time and also attending adult education. Those are positive developments that should be encouraged.

34Mr. Dullal is at a crossroad in his life. In the Pre-sentence report, his mother expressed concern about Mr. Dullal having both positive friends and negative influences in his life. The group of young men he was with on November 19, 2015 clearly fall into the latter category. The author of the Pre-sentence report also indicated that when faced with a similar situation, should Mr. Dullal not recognize and address issues, that could contribute to re-offending behaviour.

35In my view, in balancing the factors of specific and general deterrence, denunciation and rehabilitation, the focus for Mr. Dullal should be on rehabilitation. A period of probation with strict conditions including counseling and rehabilitation programs will provide him with tools to gain insight into his choices and direct him on a path where he maintains the positive influences in his life. He was described in very positive terms by his mother and the author of the Pre-sentence report. He was described as cooperative, polite and forthcoming. These traits indicate that Mr. Dullal is an individual for whom rehabilitation is a realistic and achievable goal. There is a strong likelihood of complete rehabilitation for Mr. Dullal. In addition, he is working and going to school which are two accomplishments that should be encouraged.

36In these circumstances, the balance should shift heavily to the welfare of the offender. The value of probation is that it is a restraint upon the freedom of the offender through supervised control. Furthermore, a breach of probation will likely lead to a term of imprisonment. In my view, the interest of the public will, in the long term, be better protected by successful probation and rehabilitation of Mr. Dullal.

Aggravating Factors

37Aggravating factors are as follows:

(a) This was an unprovoked group assault on one individual;

(b) Mr. Dullal made a choice to participate in the assault;

(c) The victim sustained injuries that required medical assistance

Mitigating Factors

38Mitigating factors are as follows:

(a) Mr. Dullal is a youthful first-time offender with no criminal record;

(b) He has a supportive family with whom he resides;

(c) He is currently working full time and attending school;

(d) There are no substance abuse issues.

Conclusion

39In the Pre-sentence report, Mr. Dullal reported that he did not know the victim but expressed sympathy towards him. At the sentencing hearing when asked if he would like to address the court, Mr. Dullal stated that it was a stupid mistake.

40In imposing this sentence, I have considered the principles of sentencing and all mitigating and aggravating factors. While there is always some tension in the principles of sentencing, they must be balanced and consideration given to the unique circumstances of each offender. Given the circumstances of this case, although Mr. Dullal was part of a violent and unprovoked assault for which leniency might otherwise not be appropriate, I am of the view that the focus should be on restraint and rehabilitation. The transition from a young person to an adult, just months before this assault occurred, should not be marked by an immediate abandonment of rehabilitation as the primary goal in cases where the prospect of successful rehabilitation is real: R. v. Leask, 1996 17936 (MB CA), [1996] M.J. No. 586, 113 Man. R. (2d) 265 (Man.C.A.). There is no reason to believe that Mr. Dullal is now set upon a course of criminal activity as a pattern of his future.

41I sentence Mr. Dullal to a suspended sentence and two years probation on the following conditions:

(a) You will report in person as directed to a probation officer.

(b) You are not to have any association with anyone known to have a criminal record.

(c) You are not to contact or communicate in any way either directly or indirectly, by any physical, electronic or other means with the victim, M.C.

(d) You are not to attend at any place where you know the victim lives, works, goes to school, frequents, or any place you know him to be.

(e) You shall attend and actively participate in all assessments, counselling and rehabilitation programs as directed by the probation officer and complete them to the satisfaction the probation officer for anti-criminal thinking.

42Further, the following ancillary orders will be made:

(a) There will be an order authorizing the taking of such bodily substances as are necessary for the purposes of a forensic DNA analysis, pursuant to s. 487.051(1).

(b) There will be an order made under s. 110 of the Criminal Code which prohibits you for the next five years from owning, possessing or carrying any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance.

Shaw J.