COURT FILE NO.: CR-21-103
DATE: 2022 10 24
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Lubomir Mikan
Ms. V. Reid, for the Crown
Mr. D. Hotz, for Mr. Mikan
HEARD: October 24, 2022
REASONS FOR DECISION ON SENTENCING
CONLAN J.
I. The Convictions
[1] On October 18, 2022, Mr. Lubomir Mikan entered guilty pleas to several counts on the amended Indictment dated October 17, 2022.
[2] Mr. Mikan’s jury trial was about to begin. The jury had been selected but no evidence yet presented, and the trial judge and the parties requested that this Court conduct a final pretrial, which was done. The guilty pleas followed that pretrial conference.
[3] The charges that Mr. Mikan has now been found guilty of are:
count 2 – point a firearm, contrary to section 87 of the Criminal Code;
count 3 – aggravated assault, contrary to section 268 of the Criminal Code;
count 5 – being the occupant of a motor vehicle knowing that there was a firearm inside the vehicle, contrary to section 94(1) of the Criminal Code;
count 6 – possession of a loaded prohibited firearm, contrary to section 95 of the Criminal Code; and
count 7 – unauthorized possession of a firearm, contrary to section 117.01(1) of the Criminal Code.
II. The Facts
[4] Mr. Mikan and the victim, Ms. Maragoudakis, were long-term domestic partners. On January 1, 2021, New Year’s Day, they were in a hotel together near Grimsby. Alcohol and drugs were consumed. While the victim was driving the couple back to the Halton area, the two argued about a woman named Jane. Once at Burlington, still inside the vehicle, there was a call made to Jane, more arguing, and ultimately a shooting.
[5] Mr. Mikan, while the subject of a prohibition order under section 110 of the Criminal Code, brandished a homemade firearm, pointed the gun at the victim, and shot the victim in the face. The bullet struck the victim’s jaw area. She suffered a massive injury, and her life was endangered as a result of the shooting. Surgery was required, and the victim has lasting injuries to this day.
[6] It was a cowardly act. It is only a fluke that the victim did not die. She is obviously a strong woman and a survivor. The photos of her facial injury, initially and over time since, are graphic and just plain awful to look at.
III. Victim Input
[7] Several victim impact statements have been filed, authored by Ms. Maragoudakis and members of her family.
[8] Those statements are eloquently written and speak to the terrible consequences of Mr. Mikan’s criminal actions on that New Year’s Day.
[9] Permanent disfigurement, pain and suffering, sleeping problems, anxiety, PTSD, loss of self-esteem, memory problems, and a total sense of despair on the part of the victim, all at the hands of this offender.
[10] Imagine how the victim’s siblings feel as well, including the victim’s twin sister. To have to watch a loved one eat through a tube and suffer devastation in so many ways, physically, emotionally, and financially. It is the whole family that has been traumatized by the despicable conduct of Mr. Mikan.
[11] This Court is appreciative of the bravery and commitment of the victim and her family in attending here today and in making their feelings known to the Court.
IV. The Circumstances of the Offender
[12] Mr. Mikan is 54 years old. His employment history has been as a machinist; his talents were obviously misplaced when he built the crude firearm that he used to shoot the victim in the face.
[13] He does have a fairly lengthy prior criminal record which includes convictions for domestic violence.
[14] The criminal record entries that are most relevant to today’s proceeding are:
-convictions for assault and fail to comply with probation from 2007, where the victim was Mr. Mikan’s former partner, for which Mr. Mikan received 90 days in custody on top of 28 days of presentence custody, plus other ancillary orders; and
-convictions for assault with a weapon (a hockey stick), simple or common assault, and mischief under $5000.00 from 2013, where the victim was Ms. Maragoudakis, for which Mr. Mikan received 4 months in jail on top of 10 days of presentence custody, plus probation, plus other ancillary orders.
[15] Tragically, Mr. Mikan lost a young daughter to cancer many years ago. Much of his criminal history was accumulated after that loss of his child.
V. The Positions of the Crown and the Defence
[16] Counsel are agreed, and I concur, that Mr. Mikan receive credit for the equivalent of four years of presentence custody.
[17] The twenty-one months of jail time actually served have been entirely during the COVID-19 pandemic, with the consequential lockdowns included. As well, Mr. Mikan had virtually no family visitation during the duration of his presentence custody, including by his mother (who is here today) and his grandchild (who was born while the offender has been incarcerated).
[18] The Crown’s position is four more years of imprisonment from today, an effective sentence of eight years in custody.
[19] The position of the defence is one more year of imprisonment from today, an effective sentence of five years in custody, or alternatively an additional 18 months in custody, an effective sentence of 5.5 years of imprisonment.
[20] There are ancillary orders sought by the Crown, none of which is opposed by the defence.
VI. The Sentence of the Court
[21] The Court will impose the sentence that was discussed with both counsel during the pretrial conference, which conference was conducted in the courtroom and in the presence of Mr. Mikan.
[22] In my view, the chief principles of sentencing in this case are denunciation and specific and general deterrence.
[23] The guilty pleas, though late, are highly mitigating in this case. They avoided what would have been, and was in fact scheduled to be, a lengthy jury trial. They avoided the painful experience of the victim having to testify and be subject to cross-examination. They brought finality and certainty to the proceeding. They are a sign of remorse, and the words spoken today by the offender included an apology to the victim and her family.
[24] The aggravating features include the related criminal history for domestic violence, the re-victimization of Ms. Maragoudakis specifically, and the sheer extent and seriousness of the injury and trauma sustained by the victim.
[25] The forfeiture order for the weapon and ammunition has been signed by me today.
[26] This Court imposes upon the offender a primary DNA order (that shall attach to the aggravated assault conviction), a section 109 firearms and weapons prohibition order for life, and a section 742.21 non-communication order while in custody with regard to Pagoni (Peggy) Maragoudakis, Kathy Kaczmarski, Maria Sheldrake, and Leah Maragoudakis.
[27] The Court waives the victim fine surcharges in light of the significant presentence custody and the further substantial period of imprisonment yet to be served.
[28] In terms of the further period of imprisonment, sentencing is a highly discretionary and individualized exercise. To fashion a sentence that is reflective of the facts and the moral blameworthiness of the offender is a difficult task.
[29] No penalty that this Court can impose will turn back the clock for the victim and her family. I wish that was possible.
[30] The sentence of the Court is as follows:
aggravated assault, section 268 – 6.5 years’ imprisonment, less presentence custody of 4 years, for a net sentence of imprisonment from today of thirty (30) months;
point a firearm, section 87 – thirty (30) months in custody, concurrent;
unauthorized possession of a firearm in a motor vehicle, section 94(1) – twelve (12) months in custody, concurrent;
possession of a loaded prohibited weapon, section 95 – twenty-four (24) months in custody, concurrent; and
possession of a firearm while prohibited, section 117.01(1) – twenty-four (24) months in custody, concurrent.
[31] The global net sentence from today is thirty (30) months’ imprisonment.
[32] I thank both Ms. Reid and Mr. Hotz for their helpful submissions on sentence.
[33] I wish the victim and her family some peace in the days and years ahead.
[34] I will now ask both counsel if there anything else that they would like me to address.
Conlan J.
Released: October 24, 2022
COURT FILE NO.: CR-21-103
DATE: 2022 10 24
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
Lubomir Mikan
REASONS FOR DECISION ON SENTENCING
Conlan J.
Released: October 24, 2022