R. v. Fernandez, 2010 ONCJ 627

Citation: R. v. Fernandez , 2010 ONCJ 627 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — GREGORIO FERNANDEZ Before Justice H. Borenstein Heard on October 6, 2010 and December 9, 2010 Reasons for Sentence released on December 17, 2010 Mr. M. Medeiros ........................................................................................................ for the Crown Mr. P.

Hatch ............................................................................. for the accused Gregorio Fernandez Borenstein J.: [ 1 ] This is the sentencing of Gregorio Fernandez, who was found guilty after trial of aggravated assault, assault with a weapon and possession of a weapon for purpose dangerous. All three offences arise out of a single incident. A fight occurred in a bar during which, Mr. Fernandez picked up a knife and stabbed his friend Graham McKellar. On consent, the two weapons offences are conditionally stayed pursuant to Keinapple .

This is my sentencing decision on the aggravated assault count. [ 2 ] Both counsel agree that Mr. Fernandez has served 124 days of actual pre-trial custody. Given that this offence occurred prior to the amendments to the Criminal Code , both counsel agree that Mr. Fernandez can and should be credited on a 2-1 basis for that pre-trial custody.

Accordingly, he has served the equivalent of 248 days in pre-trial custody, or almost nine months. [ 3 ] The Crown seeks a sentence of three years in custody less the pre-trial custody as well as a DNA order and a s. 109 order for life. [ 4 ] The defence seeks a sentence of one year less the pre-trial custody. [ 5 ] I will not repeat the facts of the offence. They are contained in my reasons for judgment released on June 28, 2010. [ 6 ] Suffice it to say that Mr. Fernandez and his friend Mr. McKellar were drinking in a bar. Mr. McKellar is a larger man and has struggled with mental health issues.

He has acted violently in the past. A male in the bar approached Mr. McKellar in the bar asking him if he sold drugs. Mr. McKellar began to assault that male and Mr. Fernandez tried to break it up that fight. Mr. McKellar turned and hit Mr. Fernandez. [ 7 ] Mr. Fernandez has one prosthetic eye and one eye through which he can see. When Mr. McKellar hit Mr. Fernandez, he struck him in his good eye. Mr. Fernandez became angry and picked up a large knife from the bartender’s station. He stabbed Mr. McKellar with the knife slicing Mr.

McKellar’s leather belt, two layers of clothing and penetrating his torso causing significant damage to Mr. McKellar. [ 8 ] Mr. Fernandez testified that he could not see and simply picked up the knife and swung it in front of him to get out of the bar. He claimed that he did not even know he had stabbed Mr. McKellar. I rejected that evidence. Mr. Fernandez gave a statement to the police indicating otherwise and I have found that he acted in anger. [ 9 ] That, in essence, was what happened in this case. [ 10 ] Mr. McKellar used crutches for about four weeks and bandages for several months as a result of the wound.

He was an uncooperative witness. No victim impact statement has been presented to the Court. Personal Circumstances of Mr. Fernandez [ 11 ] Mr. Fernandez is 39 years old. [ 12 ] He was born in the Dominican Republic. He completed grade 12 in the Dominican Republic. He has two sisters and a brother. His family is supportive of him although they do not live in Toronto. I have not seen anyone in Court throughout the year and

half that these proceedings have taken. [ 13 ] In 1989, Mr. Fernandez married. His wife had a connection to Canada and he came here in 1993. Soon thereafter, he became a permanent resident. [ 14 ] In 2002, Mr. Fernandez took a trip to the Dominican Republic. As a result of a robbery, he was shot. He still has two bullets in his head and it was during that robbery that he lost his left eye. [ 15 ] Mr.

Fernandez separated from his wife and began drinking extensively. [ 16 ] His son told the author of the pre-sentence report many things, some of which were not admitted and form no part of my consideration. [ 17 ] Mr. Fernandez takes no issue with the following comments. His son told the author of the pre-sentence report that he has concerns for his father’s past and present drinking. His father does not know when to stop and, when he drinks, he becomes “loud, pissed off and can be violent toward others”. The son told the author that Mr.

Fernandez has never been violent toward him or his mother and that he has made recent efforts to cut down his alcohol consumption. [ 18 ] Mr. Fernandez told the author of the pre-sentence report that he does not drink to get drunk but admitted that he will have up to 12 beers in a sitting. [ 19 ] I have been advised that since he has been in custody Mr. Fernandez has taken two one-hour counselling sessions – one for substance abuse and one for anger management. Clearly, there remains a lot of work for him to do if he is going to battle his drinking. [ 20 ] As for employment, Mr.

Fernandez reported that he has worked in construction and will return to that once he is released from custody. He has also worked part time in a friend’s painting business. He has worked as a machine operator as well. [ 21 ] Mr. Fernandez has a criminal record. In 2006, he was convicted twice of impaired driving and was sentenced to 12 days in jail followed by probation on each occasion. In 2010, he was convicted of failing to comply with his recognizance and possession of narcotics and was sentenced to one day in custody plus probation.

In August 2010, he was convicted of another count of failing to comply with a recognizance and received a sentence of 30 days in jail. [ 22 ] Life has not gone well for Mr. Fernandez since the shooting in 2002. [ 23 ] The author of the pre-sentence report writes that counselling was tried in the past but Mr. Fernandez was not committed to it. From the comments throughout the pre-sentence report, it does not appear that Mr. Fernandez has any insight into his alcohol abuse or its connection to this or his other crimes.

Submissions of Counsel [ 24 ] The Crown submits that a sentence of three years in the penitentiary is the appropriate sentence in light of the case law and the aggravating factors. The Crown cites the following aggravating factors in support of its position: the nature of the attack, the fact that a large knife was used in a public place, the fact that Mr. Fernandez, even if provoked, chose to escalate the level of violence from a bar fight to one involving the use of a large knife, the predictable nature of serious injuries, the need for deterrence and denunciation.

The Crown submits that there is an absence of much by way of mitigation in this case. The Crown submits that Mr. Fernandez has no insight into the role alcohol has played in his life. He does not see it as a problem despite the role it has played in his crimes and his son’s comments to the author of the pre-sentence report. As a result, the Crown submits that Mr. Fernandez’ alcohol abuse and its connection to this crime make it an aggravating, not a mitigating, factor that does not bode well for the future. The Crown submits we cannot be confident that Mr. Fernandez is of low risk to re-offend.

Based on the case law presented, the Crown submits that a sentence of three years is fit and appropriate. [ 25 ] Ironically, the defence submits that the main mitigating factor in this case is the nature of the attack, and what distinguishes this case from many of the cases cited is that Mr. Fernandez was attacked by Mr. McKellar while trying to break up a fight. Yes, he went far too far and stabbed Mr. McKellar and should be convicted but one cannot ignore what was occurring at the time. Moreover, he did not bring a weapon to the scene. He picked up the knife at the time. [ 26 ] The defence submits that Mr.

Fernandez has never acted violently in the past although he himself has been the victim of violence. The defence submits that I should give no weight to the Crown’s submission that Mr. Fernandez is a risk to re-offend. The defence agrees that Mr. Fernandez shows little insight into his alcohol abuse and needs help with that but he has lived 39 years without perpetrating any violence other than this night when he was trying to break up a fight and was assaulted. [ 27 ] The defence agrees that alcohol was not mitigating in this case but submits that Mr.

Fernandez has to come to terms with his alcohol abuse for his own sake and, implicitly, for the long term protection of society. [ 28 ] The defence submits that a sentence of one year less the pre-trial custody would be a fit sentence in all the circumstances. [ 29 ] Let me turn to some of the most relevant case law advanced. [ 30 ] In R. v. Tusek , [1999] O.J. 3413 , the Ontario Court of Appeal dismissed a Crown sentence appeal and upheld a sentence of two years less a day plus three years probation following a guilty plea by Tusek to aggravated assault. Tusek was 19 years old and had no record.

He had also spent one year in pre-trial custody, which the sentencing judge and Court of Appeal viewed as equivalent to two years. Accordingly, the effective custodial portion of the sentence was four years followed by probation.

[ 31 ] Tusek was at a restaurant when some of his friends became involved in a fight with some other men. Tusek produced a knife and charged at the victim stabbing him 13 times including in the head, neck, shoulders, back and abdominal area. The injuries were serious. Tusek plead guilty. There are similarities in Tusek to the present case: a fight in a public place that the accused escalated to a stabbing. There are some mitigating features present in Tusek that are not present in the present case. Tusek was only 19. He had no criminal record. He pled guilty.

In my view, the attack committed by Tusek and the circumstances in which it occurred are far more aggravating than the case before me. While there are some similarities to be sure, the differences are far greater than the similarities. In fairness, the Crown is balancing those factors and is seeking a sentence of three years, which is less than the sentence imposed on Tusek. [ 32 ] Turning to the recent Ontario Court of Appeal decision in R. v. Chickekoo . Ms. Chickekoo, an aboriginal woman, was in an apartment drinking with friends. A fight broke out and Ms.

Chickekoo picked up a beer bottle and broke it over the head of another woman causing serious, life-threatening and permanently disfiguring injuries and chronic pain. A three-hour operation and over a hundred stitches were required. Everyone fled the apartment leaving the victim alone and unconscious in a pool of her own blood. Ms. Chickekoo was convicted after trial of aggravated assault. A pre-sentence report was prepared but failed to adequately address the factors mandated by the Criminal Code as it relates to aboriginal offenders. Ms. Chickekoo was sentenced to 18 months in jail. She appealed.

The Court of Appeal affirmed that sentence holding that it appropriately addressed the principles of denunciation and deterrence. [ 33 ] In R. v. Moriera , the 19 year old accused concealed a knife and went to the CNE fair, a very public place. A fight broke out. The victim taunted Moreira to fight and Moreira produced a knife he had concealed and stabbed the victim. He was found guilty after trial and was sentenced to 21 months’ imprisonment followed by three years probation. Moriera pled guilty and had no criminal record. Moreira brought the knife to the scene. [ 34 ] In R. v.

Morgan , the accused, with a criminal record and while on bail, was involved in a fight. He stabbed the victim in the head twice. He was sentenced to three and a half years’ imprisonment and that decision was affirmed on appeal. [ 35 ] That was some of the case law presented. Decision [ 36 ] The principles of sentencing are set out in

section 718 of the Criminal Code . In this case, like many cases, deterrence, rehabilitation and denunciation are all relevant sentencing principles in this case. [ 37 ] Given the violent nature of this offence, and the injuries sustained, denunciation and deterrence play a somewhat larger role in this sentencing than rehabilitation does; however, I think rehabilitation is still a significant factor in this case given Mr. Fernandez’s background and the manner in which this offence occurred. [ 38 ] While it is true that there are no crimes of violence on Mr.

Fernandez’s criminal record, he has certainly been around more extreme violence than most people. Not only was he shot in 2002, he told the author of the pre-sentence report that he was stabbed in the throat in 2007 while trying to break up a fight. No further details of that incident were provided. I do not know if alcohol was involved.

Those previous incidents of extreme violence are not aggravating factors; however, they do make me wonder why someone who has been around so much violence, whose own son says he gets aggressive when he drinks, continues to go to bars and drinks and becomes involved in violent encounters. If he had any insight, he would try to deal with his drinking and would certainly not go drinking with people who he knows can act violently. He has little insight although maybe this period of incarceration will begin to cause him to change. [ 39 ] Every case is different of course and every offender is different.

There is a range of appropriate sentences available but, in my view, the Chickekoo case is the most similar. [ 40 ] This case occurred in unusual circumstances. While bar fights are sadly not unusual, and there is a need to deter and denounce those who escalate bar fights into knife fights, obviously this case occurred in unusual circumstances. Not only did Mr. Fernandez not bring a knife to the scene, he was trying to stop a fight when he was attacked by the person who became his victim. That is no justification but that is the context.

Balancing all of the factors in this case, had there been no pre-trial custody, I would think an 18- month sentence followed by probation would be fit in this case. Bearing in mind the equivalent of nine months of pre-trial custody, I sentence Mr.

Fernandez to a further period of incarceration of nine months followed by three years of probation. [ 41 ] In addition to the statutory terms of probation, you will not possess any weapons as defined by the Criminal Code , have no contact or communication directly or indirectly with Graham McKellar, take and actively participate in any assessment of counselling your probation officer recommends and you are to sign all releases to enable your probation officer to monitor your compliance with this conditions, and finally, you are not to enter any bar or restaurant licensed to sell alcohol unless, while at that establishment, you have a blood alcohol concentration of zero and are not consuming any alcohol.

This term is meant to assist you in dealing with your obvious alcohol problem and the possibility that, if you drink, you not be in bars or restaurants. [ 42 ] There will be an Orders that you provide a sample of your DNA and a

section 109 weapons prohibition for life. Released: December 17, 2010 Signed: “Justice H. Borenstein”