Court File and Parties
Court File No.: CR-21-30000336-0000 Date: 2023-01-23 Ontario Superior Court of Justice
Between: His Majesty The King And: Saranraj Sivakumar, Defendant
Counsel: Joe Hanna and Andrea Mcphedran, for the Crown Adele Monaco and Michael Hayworth, for the Defendant
Heard: January 19, 2023
Justice: S. Nakatsuru (Orally)
Reasons for Judgment
[1]
Introduction
Over three years ago, in a Scarborough parking lot, Charankan Chandrakanthan tragically was killed at what should have been just a normal, regular, evening of young people, socializing, listening to music and some unwisely drinking a bit too much. The evening should have ended with everyone leaving and getting home safely. Instead, Mr. Chandrakanthan, or Charu as he is known by friends and family, never got a chance to return home.
2After a trial, a jury has found you, Mr. Sivakumar, guilty of manslaughter and discharge firearm with intent.
3The Crown seeks a sentence of 15 years before credit for pre-trial custody. The defence seeks a sentence of 10 years before credit for pre-trial custody and mitigation for harsh conditions of incarceration. When that is considered, the defence submits the sentence should be a further 3 years.
[4]
The Victims
Let me begin my reasons with the victims.
5It is hard for anyone who has not gone through a terrible experience like this, to truly feel the pain and understand the enormity of the loss of a son, sibling, relative, or friend in such a cruel way. But any one who has a beating heart cannot help but be moved by the statements made last Thursday by those who loved Charu. Let me assure you that your voices have been heard by me and the impact of your loss will be considered when I make this difficult decision. The seriousness and the long-lasting nature of the psychological and emotional impact of your crime, Mr. Sivakumar, is a significant aggravating factor. There was so much harm done, but I feel I must specifically mention the catastrophic effect of your crimes on Mr. Chandrakanthan’s father. While I do not mean this literally, nor should this be taken to mean your sentence is being increased because of it, I was struck by the fact that it was almost as if you were responsible for the loss of not just one, but two lives, given how Mr. Chandrakanthan’s father was affected, diminished, and, in the end, died from his deep sorrow caused by you.
6Then, of course, there is Charu himself. He is one victim whose voice has been forever stilled.
7As many have described it, this was a “senseless” killing. I too can make little sense of it.
8The parties have agreed that the jury’s verdict here means that you had the intent to murder Mr. Chandrakanthan, but a reasonable doubt arose from the evidence of provocation. This reduced what was second degree murder to manslaughter. Regarding Mr. Srikaran, the jury found you not guilty of attempted murder but guilty of discharging a firearm with intent to wound or endanger his life. This means you did not intend to kill Mr. Srikaran when a bullet you sent his way, grazed him.
9My fundamental task in sentencing you is to determine a just and fit sentence, a proportionate one, taking into account the gravity of the offence, the circumstances of its commission, and your moral culpability for it. It meets the objectives of sentencing. It considers the aggravating and mitigating factors. And it promotes the safety of our communities.
[10]
Aggravating Factors
The aggravating factors. Factors that make your offences more serious.
11There are a number of aggravating factors. You brought a loaded, illegal, firearm to a public social gathering. This was a deliberate choice you made. If you did not have that gun in the Gucci bag, none of this would have happened.
12You did not shoot just once. You shot multiple times: four times. At close range. With that firearm, you shot and killed Mr. Chandrakanthan. You shot and wounded Mr. Srikaran. Thus, you harmed more than one person. But, honestly, given your heedless behaviour and given the circumstances of the shooting, more persons could well have been harmed. Your conduct and this context increased the potential for even greater harm and death.
13You fled the scene and disposed of the firearm in some fashion. It has not been recovered. Thus, a dangerous illegal handgun remains unaccounted for.
14You have a prior youth record. But in my view, this is not that much of an aggravating factor given that it happened when you were a youth. But some parts of that offence of assault with a weapon remain disturbing. You were 17 years old. It happened in a washroom and had all the hallmarks of you and your friends bullying another boy. As that was happening, you pulled out a knife. The boy grabbed it and was cut. Although you only received probation, the youth judge warned you about the possible consequences of similar future behaviour. Yet here you are.
15Finally, as I have already mentioned, the impact of your crimes upon the family and friends of Mr. Chandrakanthan. As well, there is Mr. Srikaran and the others who were made to witness the violence that took place.
[16]
Mitigating Factors
I move now to the mitigating factors. Factors that make your offences less serious.
17You were relatively young. Twenty-two at the time of the offences. Twenty-six now. While you are not a first offender, as I noted, you only have one prior youth conviction.
18I accept that you had some trauma in your upbringing given your exposure to domestic violence.
19You have the support of family and friends. They paint a very different picture of you. Both the support and this other person that you are, shows that there is a prospect of rehabilitation. But only if that other side of you becomes the complete person who we will see when you walk out of prison some time in the future. Not the young man who brought a loaded gun to the M-spot and fired it multiple times.
20The harsh conditions you have endured during the many months you have spent in pre-trial custody is an important mitigating factor. Given the lockdowns, your placement within the institution for some fairly long stretches (though tempered by the fact that some were the result of your own behaviour), the droplet precautions and the other impacts of the pandemic and the problems you have had dealing with your back, these consequences should have a significant mitigating effect on your sentence. I will not quantify this mitigating factor exactly. I will just say that it lowers what your sentence otherwise would have been, recognizing, of course, that the lowering effect should not make your sentence disproportionate.
21Then there is the provocation. The legal effect of provocation is not spent by its reducing second-degree murder to manslaughter. It can still be considered on sentence. But in this case, it must be considered carefully. If one looks at the nature and degree of the provocation on the specific facts of this case, viewed through the lens of collective judicial experience, it was not particularly significant. I hasten to add, I do not question the jury’s verdict. I just point out that the nature of the provocation and your reaction to it, in the totality of the circumstances, does not greatly diminish your moral responsibility. It does somewhat. But not greatly.
22On the list of mitigating factors, I do not add meaningful remorse. The law recognizes that a plea of guilty is a significant sign of remorse and the acceptance of responsibility. It is a concrete step in the direction of true and lasting rehabilitation. That is missing here. This does not mean you get a greater punishment because you went to trial. But it does mean you do not get credit for a plea of guilty. Further, while you have expressed regret and have apologized, in my opinion, this most likely springs from your sadness about what has happened to your life due to the bad decisions you made on the evening of September 19, 2019. Not true remorse for the victims.
[23]
Sentencing Principles and Range
In considering how these aggravating and mitigating factors should play into your sentence, I have been helped by the recent decisions of Justice Schreck in R. v. Smith, 2022 ONSC 3800 and Justice Code in R. v. Wight and Hoo-Hing, 2022 ONSC 5137. These decisions analyze a body of case law and provides some guidance in establishing broad ranges of sentences for manslaughter using a firearm. It is important that my sentence is similar to other established sentences so that your sentence Mr. Sivakumar be fair and just. That said, the facts of each case are always unique. And these ranges are not rigidly set in stone.
24In my view, the appropriate range in this case is 12 to 15 years. It should be in the high category because of the aggravating factors I have pointed to.
25The primary sentencing principles here are denunciation and deterrence. Specific deterrence is relevant given the lack of remorse and the prior youth disposition, but to a lesser extent given I do not feel you will commit another offence likes these in the future. Lastly, rehabilitation has an important role given your relative youth. Put another way, regardless of my sentence, you will return to the community, and it is everyone’s interest that you return a rehabilitated man. A man who recoils at the thought of being in possession of a loaded firearm. A man who has learned to control himself when faced with provocative behavior. A man who is a responsible and peaceful member of society.
26Given your relative youth, the harsh nature of your pre-trial custody, the provocation involved, the positive supports for rehabilitation, and the fact that this will be your first sentence of incarceration ever, let alone a penitentiary one, I find that your sentence need not be as long as the Crown submits for the important principles of general deterrence and denunciation be met. I should use restraint in determining the length of the sentence given the mitigating circumstances.
27On the other hand, your lawyer’s position does not provide enough denunciation and deterrence. Gun violence plagues our city. It seems like it gets worse and worse. Gun violence makes us all afraid. Gun violence kills and maims. And that is what you did, Mr. Sivakumar. Kill. Deliberately albeit in response to provocation. A sentence of 10 years further lessened by the credit for harsh conditions that your lawyers argue for, simply does not adequately denounce this crime. It does not adequately deter others from bringing guns to such public gatherings and using them.
28Thus, the gravity of the offences is at the more serious end of the spectrum. Your moral blameworthiness remains high despite the provocation, especially given the deliberate actions you took that night. Taking account of all the proper factors and principles, I find that the fit and proportionate sentence is 11.5 years which takes into account the mitigation for harsh pre-trial conditions.
29Respecting the totality principle, the sentence for discharge a firearm with intent will be 6 years to be served concurrently with your manslaughter sentence.
30You have done 1,220 days of pre-trial custody. It is a long time. This pre-trial custody must be subtracted from your sentence since you have already done this amount of jail. The law affords greater credit than the 1,220 days you have done. Therefore, the pre-trial credit is 5 years and will be subtracted from your sentence.
[31]
Conclusion
In conclusion, Mr. Sivakumar, you will be sentenced to a further 6.5 years imprisonment.
32There will be a s. 109 order for life and a DNA order.
Justice S. Nakatsuru Released: January 23, 2023