Court File and Parties
COURT FILE NO.: CR-20-50000099-0000 DATE: 20211015
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH ONYEACHONAM Defendant
Counsel: Justin Reid, for the Crown Jordan Weisz, for the defence
HEARD at Toronto: September 20, 2021
REASONS FOR SENTENCING
Low J. (Orally)
[1] Joseph Emeka Onyeachonam was convicted after trial by judge alone of aggravated assault on his intimate partner, Jawhara Mahamoud.
[2] On July 10, 2018 at approximately 12:33 p.m., the victim, Ms Mahamoud, was found with life threatening injuries in one of the first floor corridors at 101 Kendleton Drive in Toronto, a multi-unit residential building .
[3] The victim was deaf and mute. She was pregnant at the time. She was left lying on the floor naked and unconscious. She had been violently beaten by the offender who had kicked her down a flight of stairs, stomped on her, punched her and dragged her into a corridor. The offender then left her and went on with his own business. He went upstairs to a unit where he had been staying with a friend, changed his clothes, slipped past first responders, and made his way to a neighbouring building in the complex where he ate a bun on his way to another residential corridor where he was apprehended.
[4] Both Mr. Onyeachonam and Ms Mahamoud had been ingesting drugs and alcohol and had been doing so for several days.
[5] Ms Mahamoud suffered grievous injuries. Her head injuries were bilateral acute subdural and trace right sylvian fissure subarachnoid hemorrhage and significant peri-calvarial soft tissue injury/hematoma. Ms Mahamoud’s chest injuries were right sided 2nd to 5th rib fractures, left side 3rd and 4th rib fractures, pneumomediastinum and occult hemopneumothorax on the right and hemomediastinum. These injuries involve significant breaking of tissue and bleeding and constitute wounding. The injuries were life-threatening. The medical records indicate that on admission to hospital she had a Glasgow Coma score of 7. She had a laceration to the liver. She was treated in the intensive care until July 22 and remained in hospital until August 1, 2018.
[6] The court does not have a victim impact statement from her, but her sister made a statement disclosing that Ms Mahamoud appears now to be a changed person. The exact nature of the long- term sequelae, if any, of her brain and thoracic injuries is unknown.
[7] Mr. Onyeachonam was born in Nigeria in April 1986. He is now 35 years old. He immigrated to Canada in 2005 and is a permanent resident. Prior to emigrating, he had two years of university in Nigeria where he studied accounting. In Canada, he studied for 2 years at George Brown College. While enrolled at George Brown College he also worked as a bouncer. He was stabbed and had to be hospitalized. Because he was depressed and drinking heavily, he quit his college program and his job.
[8] Mr. Onyeachonam has had an alcohol dependency for many years and cocaine use since 2008. In 2010, he had a sports injury to his right knee which required surgery. As he got older, it caused more discomfort and he has chronic pain and muscle spasms. He is on a variety of medications for pain, high blood pressure and diabetes.
[9] Mr. Onyeachonam has had an unstable work history, his last employment being in 2015 through an agency. In 2016, he became homeless. He was also beaten by 4 people and robbed. He suffered broken eyebones that required surgery. He began having nightmares and panic attacks, and was addicted to crack cocaine. He reported to the author of the pre-sentence report that he has suffered from drug induced psychosis. This has not been medically confirmed, and in relation to the offence for which he is being sentenced, there is no evidence of mental illness as opposed to the inhibition loosening influence of alcohol and drugs.
[10] He reports a good relationship with his mother and sisters, but a more distant relationship with his father and brother. He reports being subjected to corporal punishment as a child by his father. Mr. Onyeachonam has the support of his mother and sister. His mother considers him to be a very loving and hardworking person who needs to get his addictions under control.
[11] Mr. Onyeachonam has a criminal record. He has three theft convictions, a fail to provide a breath sample, one assault with intent to resist arrest, a conviction for uttering a threat, one fail to comply with recognizance and one fail to comply with probation.
[12] This sentencing will be Mr. Onyeachonam’s first penitentiary sentence. As a result of his immigration status, he will also be subject to deportation. The liability to deportation is a collateral form of punishment that, depending on the country and the circumstances to which the prisoner is to be deported, would tend to increase the penal burden. I am prepared to take judicial notice that Nigeria is such a country. In the circumstances, the sentence will clearly exceed 6 months, thus engaging the deportation liability. I am alive to this and I take it into account in determining the sentence. With respect to the jump principle, there is a vast difference in magnitude and gravity of the offence for which Mr. Onyeachonam is being sentenced here and the offences of which he was previously convicted.
[13] In this sentencing, the primary objectives are denunciation and general deterrence. Specific deterrence is also engaged as is rehabilitation. With respect to the latter two, I am persuaded that as substance abuse and the offence were inextricably linked, and as the offender has insight and motivation to deal with the substance abuse, there is potential for rehabilitation.
[14] Mr. Onyeachonam has expressed remorse both in court and prior to the sentencing. As he and the victim had been in an intimate relationship prior to the assault, I take the expression of remorse as genuine and have no reason to question his sincerity. This is a mitigating factor.
[15] Gaol records from intake at July 11, 2018 describe Mr. Onyeachonam as exhibiting bizarre behaviour, uncoordinated speech, lack of touch with reality, poor grooming and lack of coordination. Since then, however, Mr. Onyachonam has gained some insight into the genesis of his unlawful actions and appears to be serious about addressing his alcohol and drug addictions. He has taken a first step toward so doing by applying to the St. Michael’s substance abuse program. While in pretrial detention, he has completed some 15 programs offered within the gaol aimed at, inter alia, heightening awareness and coping skills.
[16] The other side of the coin, the fact that the victim was his intimate partner is a statutory aggravating factor. While protection by one partner of the other is frequently although not invariably a feature of an intimate relationship, Mr. Onyeachonam acknowledged that in his relationship with Ms Mahamoud, he had undertaken an obligation to protect her. He acknowledged that he betrayed that trust.
[17] That Ms Mahamoud was deaf and mute is a factor that in ordinary circumstances would have weighed as an aggravating factor in that her disability hindered her ability to get help. In the circumstances of this particular assault, however, her disability was not a relevant issue because of the other and even more aggravating factor that she was unconscious. However brutal the assault would have been with a conscious individual, this assault was the more shocking because it was perpetrated on an unconscious naked woman who had no ability to escape, to defend herself or to maintain even a modicum of human dignity.
[18] The Crown position is that a fit and proper sentence is:
• 8 years imprisonment less presentence custody credit of 4 years, 3 months, 14 days (up to August 20) with a go-forward sentence of 3 years, 8.5 months;
• lifetime weapons prohibitions under s. 109(2)(a) and s.109(2)(b);
• a DNA harvesting order;
• and an order under s. 743.21 prohibiting communication with Jawhara Mahamoud.
[19] The Crown concedes that a victim fine surcharge would cause undue hardship.
[20] The defence argues that a fit and proper sentence is 4 to 5 years less Summers credit for pretrial custody. Defence takes no issue with any of the ancillary orders sought by Crown. Those orders are either mandatory or appropriate here.
[21] Counsel have referred me to sentences arising from convictions for aggravated assault ranging from a low of 22 months (see R. v. De Niro, [2015] N.J. No. 135) upward to 10 years.
[22] In support of the argument that a five year sentence would be proper and fit, defence relies on R. v. Dockery, 2020 ONCA 278 where a 49 year old offender with an extensive and serious record committed an aggravated assault on an intimate partner with whom he had been in a relationship for about 6 months. The offender slapped the victim’s face, grabbed her by the hair, pushed her to the floor and stomped on her face, leaving her unconscious. The victim suffered serious facial injuries including a broken jaw which required surgery. The offender had been placed in care from the ages of 12 to 16 and had entered a guilty plea.
[23] I am also referred to R. v. Rowe, 2020 ONSC 6667. The offender attacked his estranged wife with a weapon causing a wound which required 40 stitches. The Crown sought a term of 5 years. There was no criminal record and little information about the offender was available to the court. He had no immigration status in Canada and the court found that he had absconded. The offender had shown no remorse or cooperation and was sentenced in absentia to a 4 year gross term.
[24] In R. v. J.B., 2012 ONSC 2996, the offender was 21 at the time of the offence. The offender had a youth and adult record and there was a history of abuse of his domestic partner. The offender had a deeply troubled youth marred by family breakdown, and parental violence and alcohol and substance abuse as a result of which he was removed from his family and taken into care. The offender kicked the victim, pushed her down, stomped on her head and dragged her by the hair pulling a clump of hair out of her scalp. The victim suffered a broken jaw and numerous cuts and bruises. There was an early guilty plea. The accused was sentenced to a gross term of three years.
[25] I am not persuaded, however, that there is any substantial parity between the facts and circumstances at bar and those in the cases upon which defence relies. Most significantly, there was no guilty plea by Mr. Onyeachonam, his victim had the particular disadvantage or disability of being unconscious, and the extent of injury that he inflicted was of greater gravity. Ms Mahamoud’s life was endangered, the extent of which is evidenced by the length of her stay in the intensive care unit at Sunnybrook hospital.
[26] In my view, the scenarios in R. v. Pitkeathly (1994), 1994 CanLII 222 (ON CA), 69 O.A.C. 352 and R. v. Langford, 2010 CarswellOnt 4280 (C of A) are more similar to the facts in the case at bar.
[27] In Pitkeathly, the offender and victim had been cohabiting for four months. They were out drinking and, while arguing on the drive home, the offender lost control of the car and crashed into a pole. The offender blamed the victim for the crash and inflicted a terrible beating on her, including kicking her in the face with his boots. The victim required numerous facial surgeries and was left permanently disfigured. The offender attributed the assault to his abuse of alcohol and drugs. There was a guilty plea and no criminal record. An 8 year sentence was upheld on appeal.
[28] In R . v. Langford, the complainant was the former intimate partner of the offender. The assault was unprovoked and included hitting the victim’s nose with his fist, dragging her by the hair, placing his booted foot on the throat and applying pressure, and hitting her with his steel toed boots on her face and body causing profuse bleeding. The victim was hospitalized for 7 days. There was no criminal record and no guilty plea. A 9 year sentence was upheld on appeal.
[29] Mr. Onyeachonam does not have the mitigative factor of a guilty plea, but I am, as indicated above, satisfied of his remorse. He has as well the added burden of liability to deportation. As further mitigation under R. v. Marshall, 2021 ONCA 344 there is the evidence of harsh conditions in the detention centre while awaiting trial during which time the gaol population dealt with the higher risks of congregate living during the COVID-19 pandemic and frequent lockdowns resulting from staff shortages at the Toronto South Detention Centre. He was out of custody from May 2020 to September 2020, but was taken back into custody on other charges. Crown acknowledges that in accordance with R. v. Barnett, 2017 ONCA 897 at 30 - 32, the period of detention post re-arrest may be attributed to this offence.
[30] According to gaol records, there were 501 days of full or partial lockdowns when Mr. Onyeachonam was in custody. Mr. Onyeachonam kept his own records of lockdown occurrences and according to him, there were 672 lockdowns as of August 20 plus another 25 to September 20. He does not distinguish lockdowns of brief duration from lockdowns of lengthy periods.
[31] In the absence of mitigative factors, I would have imposed a sentence of 8 years. In light, however, of the harsh gaol conditions resulting from chronic staff shortages at the Toronto South Detention Centre which together with the exceptional conditions caused by the pandemic resulted in the numerous whole or partial lockdowns, the collateral burden of immigration consequences, the genuine remorse and the potential for rehabilitation with the support of Mr. Onyeachonam’s mother and sister, and bearing in mind the principles of proportionality, parity and restraint, I am of the view that a fit sentence would be 7 years.
[32] There is to be credit against sentence of 687 days for the period July 10, 2018 to May 26, 2020, and 356 days for September 9, 2020 to August 30, 2021, the originally scheduled date for sentencing submissions and a further 46 days to October 15, 2021, date of sentencing. The total is therefore 1,089 days to be credited at the rate of 1.5:1 or 1633 days.
[33] Mr. Onyeachonam is sentenced to a gross term of 7 years. Against that there will be a credit of 4.47 years. Therefore the sentence remaining to be served is 7 years less 4.47 years which equals 2.53 years, or 2 years, 6 months ,11 days.
[34] There will be a lifetime weapons prohibition under s. 109(2)(a) and s.109(2)(b) of the Criminal Code, an order for harvest of DNA and under s. 743.21 of the Criminal Code, an order will issue prohibiting communications with Jawhara Mahamoud during the period of sentence.
___________________________ Low J.
Released: October 15, 2021
COURT FILE NO.: CR-20-50000099-0000 DATE: 20211015
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOSEPH ONYEACHONAM Defendant
REASONS FOR SENTENCING
Low J.
Released: October 15, 2021