COURT FILE NO.: CR-20-50000345
DATE: 20220623
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MARVIN HERNANDEZ-VIERA
J. Frost, for the Crown
S. Reid, for Mr. Hernandez-Viera
HEARD: June 16, 2022
REASONS FOR SENTENCE[^1]
SCHRECK J.:
[1] Marvin Hernandez-Viera tried to kill Taya Amankwah by shooting her in the abdomen while she was in the parking lot of an apartment building. Why he did this is unclear. Fortunately, Ms. Amankwah survived, although she suffered permanent nerve damage and now has post-traumatic stress disorder.
[2] Following a judge-alone trial, Mr. Hernandez-Viera was convicted of attempted murder (Count 1), possession of a loaded prohibited or restricted firearm without being the holder of a licence (Count 4), wearing a disguise with intent to commit an indictable offence (Count 7), and occupying a vehicle in which there is a firearm (Count 8).[^2] He must now be sentenced.
[3] Mr. Hernandez-Viera is 25 years old. He has had a difficult life. He grew up witnessing domestic violence inflicted on his mother by his father. His family lived in a neighbourhood plagued by serious violence. He did not have a positive educational experience, having been diagnosed with attention deficit disorder (“ADD”) at a young age. As a person of Hispanic origin, he experienced systemic racism. Although he is relatively young, Mr. Hernandez-Viera is not a first offender. He has a criminal record that includes convictions for several serious offences, including armed robbery and firearm offences.
[4] For the reasons that follow, Mr. Hernandez-Viera is sentenced to a term of imprisonment totalling 10 years, five months and one week, or 125.25 months. He is entitled to a credit of 23 months and one week, or 23.25 months, for time spent in presentence custody. The sentence to be served is therefore eight and a half years, or 102 months.
I. FACTS
A. The Offences
[5] The facts of the offences are set out in detail in my reasons for judgment, reported as R. v. Hernandez-Viera, 2022 ONSC 289. Briefly, on August 29, 2019, Ms. Amankwah and her sister were in the parking lot of an apartment building where they had just visited someone. A man wearing a hood and a bandanna covering his face got out of a vehicle parked in the lot, ran up to Ms. Amankwah, and shot at her several times. He then returned to the vehicle and quickly drove away. Ms. Amankwah was struck in the abdomen and the foot. She was immediately taken to the hospital and eventually recovered, although she suffers from permanent nerve damage and post-traumatic stress disorder.
[6] The police investigated and gathered a significant amount of circumstantial evidence that demonstrated that Mr. Hernandez-Viera was the person who shot Ms. Amankwah. His reasons for doing so are unknown. The two of them had been friends, but had fallen out a few months prior to the shooting, apparently because Ms. Amankwah had not repaid a $300 loan from Mr. Hernandez-Viera.
B. The Offender
(i) Background
[7] According to a Pre-Sentence Report (“PSR”), Mr. Hernandez-Viera is 25 years old. He was born in Toronto to refugees from El Salvador. Growing up, he frequently witnessed his mother being the victim of violence at the hands of his father, who was an alcoholic. The neighbourhood where Mr. Hernandez-Viera grew up was plagued by violence and “shootings were a norm.”
[8] Mr. Hernandez-Viera was diagnosed with ADD at a young age and was placed in a special education class. He did not complete high school. While in custody, he enrolled in an education program through an organization called Amadeusz and is now about to obtain his high school diploma. The Manager of the Amadeusz Education Program described Mr. Hernandez-Viera as “a dedicated, capable, and engaged participant.”
[9] While Mr. Hernandez-Viera has worked on occasion in construction, his employment history is sporadic.
[10] Mr. Hernandez-Viera continues to enjoy the support of his family and members of his community, including his pastor.
(ii) Criminal Record
[11] In 2016, Mr. Hernandez-Viera was found guilty as a youth of using an imitation firearm in the commission of an offence and obstructing a peace officer, for which he received a disposition of 20 months of probation after being given credit for 137 days in predisposition custody.
[12] In 2018, he was convicted of armed robbery using a prohibited or restricted firearm as well as firearm possession offences. He was sentenced to imprisonment for five months followed by three years of probation after being given credit for three years and seven months of presentence custody. It would appear that Mr. Hernandez-Viera was still subject to this probation order when he committed the offences he is being sentenced for. He was also subject to a firearms prohibition order that was made at the same time.
[13] In 2019, Mr. Hernandez-Viera was convicted of dangerous operation of a conveyance, possession of a Schedule I substance, flight from police and possession of property obtained by crime over $5000. He was sentenced to imprisonment for 75 days and a period of probation. These convictions occurred after the offences for which Mr. Hernandez-Viera is being sentenced. As a result, I am not considering them as an aggravating factor: R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at paras. 60-61.
II. ANALYSIS
A. General Sentencing Principles
[14] Section 718 of the Criminal Code provides that 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….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal recently observed in R. v. Morris, 2021 ONCA 680, at para. 58:
Those objectives will not necessarily point toward the same sentencing disposition. The individualization of the sentencing process requires sentencing judges to prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.
[15] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 30.
B. Gravity of the Offences
[16] The gravity of an offence is a function of the type of offence and the circumstances in which it was committed. Assessing the gravity of the offence will require a consideration of a number of factors, including the blameworthiness of the requisite mens rea, the normative wrongfulness of the conduct, the harmfulness of the conduct and the penalties set out in the Criminal Code: Morris, at paras. 67-68; Friesen, at paras. 75-76. As a general rule, the weight to be attached to the objectives of general deterrence and denunciation will increase as the gravity of the offence increases: Morris, at para. 69. However, this does not mean that other objectives such as rehabilitation should become unimportant or be ignored.
[17] The gravity of the offences Mr. Hernandez-Viera committed is significant. The mens rea for attempted murder is the same as that for murder. The danger inherent in the possession and use of a loaded firearm is obvious: Morris, at para. 68. This is especially so where the offence took place in a public area: R. v. Wright, 2018 ONSC 4209, at para. 39; R. v. Hayles-Wilson, 2018 ONSC 4337, at para. 15; R. v. Brown, 2013 ONSC 4230, at para. 51; R. v. Ferrigon, 2007 CanLII 16828 (ON SC), [2007] O.J. No. 1883 (S.C.J.), at para. 25.
C. Degree of Responsibility of the Offender
[18] The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness in the context of the offender’s background, life experiences and personal characteristics: Morris, at para. 88; Friesen, at para. 91.
[19] As was noted in R. v. Forcillo, 2018 ONCA 402, 141 O.R. (3d) 752, at para. 129, “[t]he moral blameworthiness of attempted murder is always very high.” Indeed, there is no distinction between the moral culpability of a person who commits attempted murder from that of a person who commits murder: Forcillo, at para. 130. The only distinction is that in the case of the former, the offender has the good fortune of having been unsuccessful in his attempt to take the life of another person.
[20] Mr. Hernandez-Viera’s moral blameworthiness is increased by the fact that he was on probation and subject to firearms prohibition orders at the time he committed the offences.
D. Rehabilitative Potential
[21] Mr. Hernandez-Viera’s criminal record suggests that his prospects for rehabilitation are poor. Repeated convictions and time spent in custody do not appear to have led him to alter his behaviour. However, given Mr. Hernandez-Viera’s background, it is not surprising that incarceration by itself has not led him to adopt a more pro-social lifestyle.
[22] The support Mr. Hernandez-Viera has from his family and the fact that he has taken steps to further his education has led me to conclude that it is premature to give up on Mr. Hernandez-Viera. While his prospects for rehabilitation are far from overwhelming, I believe that there remains a glimmer of hope.
[23] It is important not to treat the sentencing objective of rehabilitation as something that benefits only the offender and which is therefore of less importance in cases involving serious offences, where the objectives of denunciation and deterrence are paramount. Most offenders, even those who are sentenced to long terms of imprisonment, are eventually released back into the community, and absent rehabilitation are more likely to commit further offences. Recently, in R. v. Bissonnette, 2022 SCC 23, at para. 48, the court, per Wagner C.J.C., stated:
… [T]he objective of rehabilitation is designed to reform offenders with a view to their reintegration into society so that they can become law‑abiding citizens. This penological objective presupposes that offenders are capable of gaining control over their lives and improving themselves, which ultimately leads to a better protection of society. M. Manning and P. Sankoff note that rehabilitation “is probably the most economical in the long run and the most humanitarian objective of punishment” (Manning, Mewett & Sankoff: Criminal Law (5th ed. 2015), at ¶1.155). Along the same lines, I would reiterate my comment in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, that “[r]ehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world” (para. 4).
It follows from this that where any rehabilitative potential exists, courts should do what they can to ensure its actualization.
E. The Appropriate Sentences
(i) The Principle of Totality
[24] Mr. Hernandez-Viera is being sentenced for several offences. All arise from the same course of conduct, that is, his decision to arm and disguise himself, wait for Ms. Amankwah in his vehicle, shoot her, and then flee in the same vehicle. In these circumstances, it is important that the total sentence that is imposed “must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender”: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18.
[25] There are different ways to give effect to the principle of totality: Friesen, at para. 157. In Ontario, courts often follow the process outlined in R. v. Jewell (1995), 1995 CanLII 1897 (ON CA), 100 C.C.C. (3d) 270 (Ont. C.A.), at pp. 14-15, and recently affirmed in R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at paras. 37-38, which is to first identify the gravamen of the conduct giving rise to all of the offences, determine the appropriate sentence to reflect the gravamen of the overall conduct, and then determine the sentence for each offence, including whether they are consecutive or concurrent.
[26] Many of the attempted murder sentencing authorities relied on by counsel involve multiple offences, but the range that is discussed usually relates to the total sentence. I will therefore begin my analysis by considering the appropriate sentence for the “gravamen of the conduct” when considering the range for attempted murder, then considering the appropriate sentences for the other offences, and finally determining what sentence should be imposed for each offence to give effect to the principle of totality.
(ii) Attempted Murder
[27] In Forcillo, at para. 131, the Ontario Court of Appeal affirmed the sentencing range for attempted murder of six years to life imprisonment that had been set in R. v. Tan, 2008 ONCA 574, 268 O.A.C. 385, at para. 35. The low end of that range was based on R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), where the accused had struck his estranged wife’s vehicle with his own vehicle in what was found to be an attempt to run her off the road and kill her, and was also applied in Forcillo, where a police officer attempted to kill an individual after justifiably shooting him in the execution of his duties. The high end of the range has been applied in cases involving severe and permanent injuries to the victim: R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Lieug, 1995 CanLII 1393 (ON CA), [1995] O.J. No. 2424 (C.A.); R. v. Mesgun (1997), 1997 CanLII 623 (ON CA), 36 O.R. (3d) 739 (C.A.); R. v. Brown, 2009 ONCA 563, 251 O.A.C. 264.
[28] Locating a particular case within the range depends on a number of factors. Two particularly aggravating factors in this case are that a firearm was used and that the offence was clearly planned. In R. v. Chevers, 2011 ONCA 569, 282 O.A.C. 388, at para. 8, the Court noted that “double digit prison sentences for attempt murder have been imposed in cases of planned executions involving the use of loaded firearms,” a description which captures the facts of this case.
[29] Another important factor is the extent of the victim’s injuries: Tan, at para. 39. In this case, I have not been provided with much information about the victim’s injuries other than that she suffered from nerve damage and has PTSD. Fortunately, this was not a case where the victim was paralysed, disfigured or significantly disabled. While this is not a mitigating factor, it is the absence of an aggravating factor.
[30] Mr. Hernandez-Viera’s criminal record is also an aggravating factor. He has previously been convicted of possessing a firearm as well as using a firearm to commit a serious offence, namely, robbery. He was sentenced for those offences less than a year before he attempted to murder Ms. Amankwah and was still on probation for them at the time, in addition to being subject to a firearms prohibition order. In these circumstances, it is difficult to escape the conclusion that Mr. Hernandez-Viera poses a significant and increasing threat to public safety.
[31] At the same time, as noted earlier, Mr. Hernandez-Viera is not completely without rehabilitative prospects. He was only 22 years old at the time he committed these offences. Since then, he has taken steps to complete his education and he has supports in the community.
[32] Having considered these various factors, in my view the appropriate sentence in this case is imprisonment for 11 years. For reasons that will become apparent, I will reduce that amount by three weeks, so that the total is 131.25 months.
(iii) Firearm Possession
[33] The following portion of the judgment in Morris applies equally to the firearm possession offences in this case (at para. 151):
Section 95 criminalizes a broad range of conduct. Mr. Morris’s actions fall at the “true crime” end of the spectrum of the conduct prohibited by s. 95. As this court and, more importantly, the Supreme Court of Canada have indicated, crimes like those committed by Mr. Morris call for denunciatory sentences. In most cases, penitentiary terms will be required.
Firearm possession offences such as this are all too frequent in this jurisdiction and pose a grave threat to the safety of the community. The court is required to denounce this type of conduct in the strongest terms: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 206, aff’d 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at para. 47.
[34] The usual range of sentence for firearm possession offences at the “true crime” end of the spectrum is imprisonment for three to five years, and even higher for those who have a record for similar offences: R. v. Graham, 2018 ONSC 6817, at paras. 38-39; R. v. Simonelli, 2021 ONSC 354, 478 C.R.R. (2d) 138, at para. 130.
[35] Given the aggravating factors in this case, including the fact that Mr. Hernandez-Viera has been convicted of similar offences in the past, in my view the appropriate sentence is imprisonment for five years.
(iv) Disguise With Intent
[36] The fact that Mr. Hernandez-Viera disguised himself obviously made it more likely that he would not be apprehended and demonstrates that the attempt to murder the victim involved a degree of planning. In my view, the appropriate sentence for this count is imprisonment for one year: R. v. Lawrence, 2020 ONCA 841, at para. 25; R. v. Deakin, 2021 ONCA 823, at para. 27; R. v. Lira, 2021 ONSC 8294, at para. 172.
(v) Knowingly Occupying a Motor Vehicle With a Firearm
[37] On Count 8, knowingly occupying a motor vehicle in which there is a firearm, the appropriate sentence is imprisonment for two years.
(vi) Achieving Totality
[38] As noted earlier, the appropriate total sentence is approximately 11 years. The total of the sentences I have identified for each count exceeds that by a significant amount. I can give effect to the totality principle by either making all of the sentences concurrent, reducing some of them, or some combination of the two. Given that all the offences arose from a single course of conduct, in my view the better course is to make all the sentences concurrent.
F. Credit for Presentence Custody
[39] Mr. Hernandez-Viera was in custody from the time of his arrest on September 3, 2019 until he was released on bail at the conclusion of the preliminary inquiry on September 4, 2020. He was subjected to numerous lockdowns while in custody, a large part of which was during the ongoing COVID-19 pandemic. Counsel agree in the circumstances that in addition to the usual credit in accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Hernandez is entitled to an additional credit because of the conditions of his presentence custody in accordance with R. v. Duncan, 2016 ONCA 754. Counsel agree that the total credit Mr. Hernandez-Viera should receive for this period is two years: one and a half years of “Summers” credit and six months of “Duncan” credit.
[40] “Duncan” credit is conceptually distinct from “Summers” credit in that it is a factor to be considered in determining an appropriate sentence rather than a deduction from the appropriate sentence: R. v. Marshall, 2021 ONCA 344, at paras. 51-52. As a result, and in order to comply with s. 719(3.3) of the Criminal Code, I will adjust the appropriate sentence to account for the “Duncan” credit (which is six months) before deducting any of the “Summers” credit. The appropriate total sentence is therefore 125.25 months.
[41] Mr. Hernandez-Viera was also detained between March 10, 2022 and the date of sentencing, about three and a half months. Counsel agree that the usual “Summers” credit applies to this period, entitling Mr. Hernandez-Viera to an additional five months and one week. The total “Summers” credit is therefore 23.25 months.
[42] The total sentence of 125.25 months less credit of 23.25 months leaves a sentence of 102 months left to serve, or eight years and six months.
III. DISPOSITION
A. Sentences
[43] For the foregoing reasons, Mr. Hernandez-Viera is sentenced as follows:
Count 1 (attempted murder): 125.25 months
Count 4 (unauthorized possession of prohibited firearm): 60 months
Count 7 (disguise with intent): 12 months
Count 8 (occupy motor vehicle with firearm): 24 months.
All sentences are to run concurrently.
[44] Mr. Hernandez-Viera is entitled to a credit of 23.25 months for 15.5 months spent in pre-sentence custody. The remaining sentence to be served is therefore 102 months.
B. Ancillary Orders
[45] Pursuant to s. 109(2) of the Criminal Code, Mr. Hernandez-Viera is prohibited from possessing firearms and other items described in s. 109(2) for life.
[46] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Hernandez-Viera is ordered to provide a sample of his DNA for inclusion in the national databank.
[47] There will be an order pursuant to s. 743.21(1) of the Criminal Code prohibiting Mr. Hernandez-Viera from communicating, directly or indirectly, with Taya Amankwah or members of her immediate family during the custodial period of his sentence.
C. Final Comment
[48] Mr. Hernandez-Viera, this is a significant sentence, but not when compared to what you would have received had the victim died. Had the bullet hit her a few inches higher than it did, you would have received a life sentence and would not have been eligible to apply for parole until you were 47 years old. As things stand now, if you make good use of your time in custody, you could be on parole before the age of 30. You still have your whole life ahead of you. But you have passed the point where any court is going to show you leniency if you are convicted of other offences in the future. Even being caught possessing a firearm is likely to get you a double-digit sentence, and if you use a firearm to commit a crime, the next sentence you receive will likely take up most of your productive adult years. The direction you take from this point is entirely up to you. Choose wisely.
Justice P.A. Schreck
Released: June 23, 2022
COURT FILE NO.: CR-20-50000345
DATE: 20220623
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MARVIN HERNANDEZ-VIERA
REASONS FOR SENTENCE
P.A. Schreck J.
Released: June 23, 2022
[^1]: An abbreviated version of these reasons was delivered orally in court. In the event of any inconsistency between those oral reasons and these written reasons, the written reasons should be taken as correct.
[^2]: Count 2 (discharge firearm with intent to wound or endanger life), Count 3 (aggravated assault), Count 5 (possession of firearm without being the holder of a licence) and Count 6 (possession of firearm knowing he was not the holder of a licence) are stayed pursuant to the rule against multiple convictions.