COURT FILE NO.: 21-287 AP
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
J. McKenzie, for the Crown
Respondent
- and -
ROBERT RACZ
D. Vago, for the Appellant
Appellant
HEARD: July 29, 2021
A.J. Goodman J.:
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice A. Leitch)
[1] The appellant appeals against the sentence imposed on February 11, 2021, by Leitch J. of the Ontario Court of Justice at Hamilton, Ontario.
[2] Following a guilty plea to assault causing bodily harm and a breach of recognizance, the appellant, Robert Racz (“Racz”) was sentenced to 12 months imprisonment followed by two years of probation.
[3] In the Notice of Appeal and written materials, the appellant raised various grounds of appeal. Fundamentally, Racz appeals the sentence on the basis that the judge failed to fully consider the immigration consequences of such a disposition, the relevant authorities, along with the insufficiency of reasons.
Positions of the Parties:
[4] Mr. Vago, for the appellant, submits that his client was sentenced by the trial judge to 12 months imprisonment and that this sentence is unduly harsh and falls outside of the range of sentences normally issued to offenders in similar circumstances.
[5] The appellant is a permanent resident of Canada, as well as a protected person from persecution in his home country of Hungary. The imposed sentence does not merely deny the appellant his liberty for 12 months, as would be the case with any other Canadian offender. The length of the appellant’s sentence also rendered him inadmissible to Canada pursuant to the Immigration and Refugee Protection Act (“IRPA”), and stripped him of his right to appeal an inadmissibility finding against him.
[6] The appellant says that the sentencing judge was aware of these immigration consequences at the time the 12-month sentence was imposed and the reasons for sentencing provide no justification for this added severity. Under the Criminal Code, R.S.C. 1985, c. C-46, the severity of punishment for offences committed by citizens and noncitizens does not vary and yet, the appellant was punished with a sentence that no Canadian citizen would contend with under the same circumstances.
[7] Moreover, the trial judge erred in that he failed to explain why he imposed a sentence of 12 months and did not address the range of sentence according to the jurisprudence. Mr. Vago submits that the judge’s sentence was demonstrably unfit in this case.
[8] Ms. McKenzie, for the Crown, submits the sentence imposed was reasonable, supported by the evidence, case law and free from legal error. His Honour heard submissions with respect to the immigration consequences and considered all of the relevant factors. It is the Crown’s position that the learned trial judge did not err in principle, overemphasize or fail to consider a relevant factor. The learned trial judge did not overemphasize the principles of general deterrence and denunciation, nor was the principle of rehabilitation neglected.
[9] Further, the learned trial judge did not impose a sentence that is demonstrably unfit given the facts of this case.
Background:
[10] The appellant did not take issue with the background information provided by the Crown.
[11] The trial judge was provided a copy of the video depicting the appellant’s assault on Pal Pintyi (“Pintyi”). It shows violent blows on an unconscious man. Pintyi is left half-naked and unconscious outside on the pavement on a January night. Racz left the unconscious Pintyi and went into the apartment building to retrieve a jacket. He then cavalierly walked by the still unconscious man and left without rendering any aid. Civilians then ran to Pintyi’s assistance and brought him a blanket. Pintyi sustained facial fractures and missing teeth.
[12] The appellant has been in Canada since 2017 but has amassed a meaningful criminal record. At the time of the events giving rise to this matter, the appellant was on release for an assault against his wife. He was prohibited by court order from being at the address. The appellant has had three different sureties on various releases: his mother, his sister and a cousin. He has failed to abide by conditions on every release order.
[13] At the time of sentencing, the Crown took the appellant’s rehabilitative efforts and the acknowledged hardship of being incarcerated during the COVID-19 pandemic into account. The Crown reduced its position from the original upper reformatory range to 12 months imprisonment, which the trial judge acknowledged. In sentencing the appellant to 12 months custody, the trial judge also took into account those rehabilitative efforts, including alcohol and anger management counselling and volunteer work, but ultimately ruled that a conditional sentence would not adequately reflect the denunciation or deterrence required for this kind of extreme act of violence – such a sentence would endanger the community and not adequately reflect society’s opprobrium.
[14] At no time during the sentencing submissions or prior to passing judgment, did the appellant make it known that he had also been charged with breaching his release order on November 30, 2020 by associating with the victim, Pintyi, outside his home in the early morning hours, contrary to his house arrest term. Rather, the appellant allowed the sentencing to proceed on the basis that he had been both compliant and made great rehabilitative strides while on release.
Legal Principles:
[15] In the case of an appeal from sentence, the power of an appellate court to substitute a sentence for the one imposed by the trial judge is provided for in s. 687 of the Criminal Code:
[16] The Supreme Court of Canada has reiterated on many occasions that appellate courts may not intervene lightly when it comes to a review of a sentence imposed by a trial judge. Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law. Appellate courts are instructed to give substantial deference to the sentencing decisions of trial judges. Appellate courts should only interfere with a sentence if it is demonstrably unfit or if the trial judge has committed an error in principle, failed to consider a relevant factor, or erroneously considered aggravating or mitigating factors, and such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39, 41, 43-44, R. v. CAM, 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 90, R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163 at paras. 14-15.
[17] The presiding judge is best positioned to consider the constellation of factors relating both to the individual before the court and to the gravity of the offences. However, not every error is material: intervention is only required if it is apparent from the trial judge’s reasons that the error had an impact on the sentence. If an error in principle had no impact on the sentence, appellate intervention is only justified if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, at para. 26.
[18] Demonstrably unfit can be described as “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate”, or representing a “substantial and marked departure.” A demonstrably unfit sentence can occur as the result of an error in principle or failure to consider a factor, but these findings are not prerequisites: R. v. Rezaie, 1996 CanLII 1241 (ON CA), [1996] O.J. No. 4468, (1996), 112 C.C.C. (3d) 97 (C.A.) at para. 21.
Application of the Legal Principles to this Case:
[19] This appeal essentially turns on an analysis of the trial judge's reasons for sentence, and consideration of the collateral immigration consequences. I have reviewed the reasons for judgment as a whole, the transcripts, along with the submissions made on the record.
[20] Much of appellant counsel’s submissions before me focused on the case law and the appropriate range of sentence for the offence of assault causing bodily harm as opposed to aggravated assault. While persuasive, I am sitting as an appeal judge and my role is not to substitute what I might believe is the appropriate disposition, rather whether the sentencing committed an error or imposed a sentence that was demonstrably unfit and warrants appellate intervention.
Sufficiency of Reasons:
[21] The trial judge’s reasons were not intended to be, nor have I read them, as a verbalization of the entire process engaged in by the trial judge in reaching his conclusion on sentence.
[22] The sufficiency of reasons does not constitute a free-standing ground of appeal. Similarly, trial judges do not have a free-standing duty to provide reasons in the abstract. The need for reasons arises from the particular circumstances of the case. Reasons must be read as a whole and in the context of the evidence, submissions, and live issues at trial to determine whether the reasons are adequate. Where the trial judge’s decision and its basis are clear from the record, a decision will not be overturned for insufficiency of reasons. The “mere failure to give reasons, without more, does not raise a question of law.” R. v. Sheppard, 2002 SCC 26 at paras. 35-37, 46.
[23] A functional approach governs appellate review of the sufficiency of reasons. The relevant inquiry is “whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 10. “An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review”: Dinardo, at para. 25. A judge need not review and resolve every inconsistency or respond to every argument advanced by counsel.
[24] In R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, the Supreme Court of Canada elaborated on the general principles to be applied when considering the sufficiency of reasons: Sufficiency of reasons should be judged in their entire context by what the trial judge has stated in the context of the record, the issues, and the submissions of counsel at trial: at paras. 37 and 38. At a minimum, it is required “that the reasons, read in the context of the record and the submissions on the live issues in the case, show that the [trial] judge has seized the substance of the matter.”: at para. 43.
[25] In my opinion, while brief, Leitch J. addressed the material issues related to the sentence including the submissions made with respect to the collateral immigration consequences and the applicability of a conditional sentence.
Alleged Misapprehension of Facts:
[26] The case law establishes that not all errors are material. If the error does not impact the sentence, appellate intervention is not warranted. Errors in detail that are peripheral to the reasoning of the judge do not allow for appellate intervention.
[27] At the sentencing hearing, there was an issue about the exact number of blows delivered by the appellant. However, to avoid confusion the learned trial judge asked for a video of the incident which was subsequently provided. In his reasons for the sentence, the trial judge stated the appellant ‘… assaulted him viciously and struck him some 20 times.” It is clear that the trial judge was not stating an exact number of blows. The exact number of strikes or punches was inconsequential to the sentence imposed because the recording viewed by the learned trial judge depicted the assault in its entirety. I agree with the respondent that the trial judge’s reference the number of blows is immaterial to the sentence.
[28] The appellant argues that the trial judge erred in finding that the victim had permanent injuries. It is true that the court was unable to determine the exact extent of Pintyi’s injuries due to his lack of participation in the proceedings. However, it was acknowledged that Pintyi’s injuries included facial fractures and lost teeth. There is no issue the victim suffered “significant bodily harm.” Again, the trial judge also viewed the video evidence. While facial fractures may heal over time, the Crown submits the loss of teeth is a permanent injury. I agree with Ms. McKenzie’s submissions that Leitch J. did not err when referencing his opinion as to the extent of Pintyi’s injuries, in the absence of medical evidence.
The Victim’s Lack of Cooperation throughout the Proceedings:
[29] The appellant submits that the trial judge speculated about the victim’s non-cooperation. Frankly, this ground is a non-starter. Any speculation on the part of the learned trial judge about why Pintyi chose not to participate is entirely peripheral to reasons for the imposed sentence. It is clear on the record that the trial judge did not impose a harsher sentence on the offender because of the lack of input from the victim.
The Mitigating Effect of the Appellant’s Guilty Plea:
[30] The appellant submits that the sentencing judge erred in principle by failing to sufficiently weigh the mitigating effect of the appellant’s guilty plea. The sentencing judge’s only references to the appellant’s guilty plea is a brief statement that he was obliged to plead guilty as he was in custody and there was video footage. The appellant says that the mitigating value of the guilty plea appears to have been completely disregarded.
[31] I do not agree. The trial judge was obviously aware of the guilty plea and acknowledged it in his reasons for sentence. He then stated that there were no facts in mitigation of the offence itself, but acknowledged that the rehabilitative steps undertaken since the appellant was released pending sentence shows he has the capacity for rehabilitation. I am persuaded that the reasons for sentence make it clear the learned trial judge was alive to the mitigating effect of the guilty plea.
Collateral Immigration Consequences:
[32] From counsel’s submission, it is obvious that this is the most important issue for this appeal.
[33] The appellant submits that the sentencing judge erred by failing to consider the immigration consequences that would flow from the appelant’s sentence. In other words, the sentencing judge erred by deciding on the fitness of the sentence without considering the relevant factor of the immigration consequences. As the judge failed to consider this relevant factor or failed to attribute sufficient weight to it, he is not owed the normal deference that is usually afforded to the sentencing decision. Counsel says that the sentencing judge was undoubtedly aware of the immigration consequences likely to flow from the appellant’s sentence, yet the reasons for the sentence do not address the added severity these consequences ascribed to the appellant’s sentence.
[34] In my review of the proceedings, at the time of the appellant’s guilty plea, it was clearly stated that counsel had canvassed the potential immigration consequences with him as part of the plea comprehension inquiry. At the time, the Crown was seeking a custodial sentence in the range of 18-20 months.
[35] The potential immigration consequences to the appellant featured prominently in the sentencing submissions particularly by the Crown and the defence.
[36] When discussing whether a conditional sentence would have the same immigration consequences for the appellant who, as a refuge may require a further finding of ‘dangerousness’ before a deportation order would flow, the learned judge stated: “Well, I’m guessing that if they had access to this whole sentencing proceeding, it would be a pretty short step.”
[37] The jurisprudence provides that collateral immigration consequences is a factor to consider but cannot reduce a sentence below the appropriate range given the gravity of the offence and the degree of responsibility of the offender.
[38] The appellant recognizes that where a guilty plea is informed and voluntary, immigration consequences alone will not justify imposing a reduced sentence outside of the range of sentences normally considered for an offence.
[39] I find that the immigration consequences were considered by the sentencing judge. However, on the totality of the circumstances, Leitch J. was of the opinion that a fit sentence for this offence was above the range sought by the defence to avoid any apparent immigration consequences. In this case, imposing a lesser sentence to avoid the collateral immigration consequences would reduce the sentence below the appropriate range given the gravity of the offence and the degree of responsibility of the appellant. There is no reason to interfere with that determination and deference is owed.
[40] Further, the appellant concedes that the sentencing judge was very alive to the immigration consequences in this case but submits a failure to provide a detailed report of the issue in reasons for judgment warrants a ground of appeal.
[41] I note that in in R. v. Morin, 1992 CanLII 40 (SCC), [1992] 3 SCR 286 at para. 20, the Supreme Court stated:.
…A trial judge must consider all of the evidence in relation to the ultimate issue but unless the reasons demonstrate that this was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was error in law in this respect.
[42] I am persuaded that the collateral immigration consequences were clearly considered and any failure to explicitly focus on such in subsequent reasons for judgment in this case does not arise to an error. Leitch J. came to the well-founded conclusion that this consequence was not a factor capable of overcoming other relevant features of the case favouring imprisonment, despite the potential loss of the appellant’s appeal rights and potential deportation.
Was the Sentence Imposed demonstrably unfit?
[43] The appellant says that the sentence is disproportionate to the offence of assault causing bodily harm. The appellant became involved in a consensual fight while under the influence of alcohol. There is no evidence to suggest that the assault was planned and the appellant has since taken full responsibility for his actions. The appellant has also made active strides toward his rehabilitation while previously released on bail. He successfully completed an extensive alcohol and anger management program as well as a 30-hour community service program during COVID-19. A sentence of twelve months imprisonment for the offence of assault causing bodily harm is harsh and excessive given all of the circumstances of the appellant’s case.
[44] I do not agree. The sentencing judge did not err by over-emphasizing the principles of general deterrence and denunciation over rehabilitation in respect of the appellant’s circumstances.
[45] The surveillance video entered as an exhibit at trial shows both the brutal assault on an unconscious Pintyi and the callous way the appellant walked by Pintyi as he lay half- dressed on the cold cement.
[46] I accept the submissions to the effect that the Crown’s initial position of 18-20 months is akin to an upper end assault causing bodily harm. This position was reduced to 12 months to accommodate the appellant’s rehabilitative efforts as well as to consider COVID-19 circumstances upon entering a plea of guilty to assault causing bodily harm. However, a recent breach of a court order stemming from Toronto was never brought to the Crown or the courts attention at the relevant time.
[47] Both parties provided authorities to the sentencing judge to support their respective positions. Of import, was the submission that there are broad sentencing ranges for convictions of aggravated assault and assault causing bodily harm, given the myriad of different circumstances befalling how these offences can be committed. The cases cited by the Crown further demonstrated a custodial sentence in the ranges sought, was well within this broad range of consideration for assault causing bodily harm. In other words, a 12-month jail sentence is clearly within the acceptable range of disposition for this offence.
[48] I accept that the judge was alive to the possibility of rehabilitation but concluded that there were no facts in mitigation of the offence itself. Leitch J. did not err in placing emphasis on the violent nature of the offence and the need to adequately address the sentencing objectives of denunciation and deterrence. Given the highly individualized sentencing process, the submissions of both parties and the appellant’s personal background, the judge ordered a sentence that was well within the reasonable range for this offence and offender.
[49] In sum, the 12-month custodial sentence was not demonstrably unfit even in light of the appellant’s personal circumstances. Absent an error in principle, the fact that an appellate court may have imposed a different sentence is not a factor to be considered.
Conclusion:
[50] While the sentencing judge could have expanded on his reasons, I find that the judgment, as a whole, is fair and reasoned as to why Leitch J. imposed a 12-month jail sentence for this offender. All points in issue raised by the appellant were addressed during sentencing submissions and the “pathway” taken by the learned sentencing judge to the result was clear, even if not in depth, during oral reasons.
[51] There is no basis to conclude that the sentencing judge did not adequately weigh the factors presented. On this record, I find that Leitch J. considered the live issues before him as presented by counsel, including the collateral immigration consequences. Trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by law and the appellant has failed to demonstrate an error in principle. The sentence is not demonstrably unfit and appellate intervention is not warranted.
[52] The appeal is dismissed.
A.J. Goodman, J.
Released: August 3, 2021
COURT FILE NO.: 21-287 AP
DATE: 2021-08-03
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
ROBERT RACZ
Appellant
REASONS FOR JUDGMENT
(On Appeal from the Honourable Justice A. Leitch)
Released: August 3, 2021