R. v. Gomez Date:, 2017 BCPC 7

Citation: R. v. Gomez Date: 20170124 2017 BCPC 7 File No: 231712-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MARLON GOMEZ GOMEZ REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: M. Ruttan Counsel for the Defendant: J. Waddington Place of Hearing: Vancouver , B.C. Dates of Hearing: March 31, April 1, July 22, 2015; Jan. 27-28, April 22, Sept. 16, 2016 Date of Judgment: January 24, 2017

INTRODUCTION [ 1 ] In Reasons for Judgment found at 2016 BCPC 101 , I found Marlon Gomez Gomez (“Gomez”), acting as a co-perpetrator in concert with a group, guilty of assault causing bodily harm (“ACBH”) to Seyed-Pedram Hassan-Tash (“Tash”) and Ardesshir Kalantari (“Kalantari”) on March 23, 2013, contrary to s. 267 (

b) of the Criminal Code (the “ Code ”). [ 2 ] The Crown proceeded by Indictment. The maximum potential jail sentence is 10 years. A Conditional Sentence Order is not an available sentence. [ 3 ] Gomez was born in El Salvador and came to Canada in 2006. He is a permanent resident and not a Canadian citizen. Under the Immigration and Refugee Protection Act , S.C. 2001, c. 27, (the “ IRPA ”), Gomez faces significant deportation risks as he is a permanent resident and not a citizen of Canada.

ISSUE [ 4 ] To what extent should Gomez’s immigration status impact on the determination of what is a fit and proportionate sentence, taking into account: the circumstances surrounding the convictions; the personal circumstances of Gomez; and the principles of sentencing, including the mitigating and aggravating circumstances. BACKGROUND OF THE OFFENCES [ 5 ] On March 23, 2013, Gomez was with several friends drinking at a nightclub in Vancouver. Tash and Kalantari were also present.

Toward the end of the evening, Tash and Kalantari left with two female friends of Gomez. [ 6 ] Gomez also left and followed the Tash group towards the intersection of Richards Street and Hastings Street. There was a brief physical altercation between Tash and Gomez.

Gomez ran back to the nightclub. [ 7 ] Shortly afterward, Gomez and two of his male friends ran from the nightclub to the intersection of Richards Street and Hastings Street where they collectively and concertedly attacked Tash and Kalantari. [ 8 ] In my Reasons for Judgment, the injuries sustained by Tash and Kalantari were summarized at paras. 6 and 7 as follows: [6] Tash sustained serious injuries from the physical altercation, including: a broken jaw; a dislocated ankle; zygomatic bone fracture; and a broken nose. Surgical procedures were required to repair the jaw and the ankle.

He was in the Intensive Care Unit for two to three days, and in the hospital for a total of seven to nine days before being discharged. [7] As a result of the physical altercation, Kalantari also lost consciousness for a period of time. In addition to losing consciousness, he sustained contusions to his head, along with two broken front teeth. [ 9 ] The injuries sustained by Tash and Kalantari amounted to bodily harm. The level of violence was serious. In particular, Tash sustained severe injuries that were consistent with a collective and concerted attack by more than one individual.

VICTIM IMPACTS [ 10 ] Kalantari did not provide a Victim Impact Statement. He was contacted by the author of the Pre-Sentence Report (the “PSR”). He told the probation officer that as a result of the assault, he received a broken tooth that would cost him $5,000 to repair. He is interested in receiving restitution for this loss. He is not interested in receiving any trauma counseling. He would like a protection order to be part of any probation order. [ 11 ] Tash provided a Victim Impact Statement.

In his Victim Impact Statement, he described the impacts arising from the attack and his hospitalization including: stress, anxiety, insomnia, physical pain, nightmares, and hypertension. He experienced approximately 6 months of post-operative pain to his face and ankle from the surgical procedures. He has scars on his lower gum and right ankle. [ 12 ] Tash continues to experience nightmares and hypertension. His chin is numb due to nerve damage and he continues to have difficulty chewing food. PERSONAL CIRCUMSTANCES OF GOMEZ [ 13 ] Gomez was born on February 15, 1991, in El Salvador. He is 25 years of age.

He came to Canada with his mother in 2006 to escape threats to their lives as a result of political upheaval. [ 14 ] He has been in a common-law relationship with his spouse for approximately five years. They have two children, with the second child born in December 2016. Gomez’s spouse remains committed to him. [ 15 ] Approximately twenty letters of reference were filed on behalf of Gomez. Gomez is described variously in the letters of reference as a committed family man, hard-working and generous.

Several of the letters of reference described Gomez as being a passive individual and it was out of character for him to be violent. [ 16 ] Gomez’s employer filed a letter of reference confirming his full-time employment status. The employer describes Gomez as, “a hard worker, fast learner in the construction business, always on time ready for work with his tools to start the day, works very well with his peers and foreman, and we would like him to continue to work for our company for a long term.” [ 17 ] Gomez cooperated in the preparation of his PSR. He did not report any physical or mental health issues.

He described himself

as a social drinker. He admitted he was drinking alcohol at the nightclub on the night of the offences and he took things “too far.” He expressed personal surprise in relation to his actions that night. [ 18 ] He accepted responsibility for his actions and expressed empathy towards the victims. He told the probation officer that he felt “bad for the victims and is sad they were hurt.” He stated that he would like to apologize to the two victims. [ 19 ] Overall the PSR would be described as positive. POSITION OF THE PARTIES (

i) Crown [ 20 ] The Crown sought the imposition of a jail sentence of a range of 9 to 12 months.

The Crown position on sentence can be summarized as follows: • The attacks on Kalantari and Tash were both unexplained and unjustified; • Gomez was the principal co-perpetrator as he went back to the nightclub to recruit his two friends to attack Kalantari and Tash; • Some of the injuries sustained by Tash were inflicted when he was defenceless on his hands and knees on the ground; • Tash sustained serious and significant injuries requiring surgical interventions; and • Tash continues to suffer physically and emotionally as a consequence of the attacks. [ 21 ] The Crown provided the court with a Book of Authorities setting out a range of sentences for the offence of ACBH where the Crown either proceeded Summarily or by Indictment. [ 22 ] The Crown took the position that where the Crown proceeded by Indictment in cases where serious injuries were inflicted by an accused, the range of sentence in British Columbia was between nine months to two years: R. v.

Matonovich , 2007 BCCA 472 , at paras. 15 and 16 . [ 23 ] By way of ancillary relief, the Crown requested that Gomez be subject to a 10-year weapons prohibition pursuant to s. 109 of the Code and a DNA order pursuant to s. 487.051 of the Code . (ii) Gomez [ 24 ] Gomez sought the imposition of a Suspended Sentence or a jail sentence not to exceed 90 days to be served intermittently.

Gomez’s position on sentence can be summarized as follows: • He was young at the time of the assault; • He had been drinking alcohol at the nightclub which significantly impacted his judgment; • He is committed to his relationship with his spouse; • He is the father of two young children; • He is the primary wage earner for the family; • He has full-time employment and is highly regarded by his employer; • He is a person of otherwise good character and reputation, as reflected in the many letters of reference; • He is not a person of a violent disposition; • There was a positive PSR in which he expressed genuine remorse and empathy toward the victims; • He has no prior criminal record; and • He is a permanent resident of Canada and in light of the conviction for ACBH he faces significant deportation risks. [ 25 ] Gomez provided the court with a Book of Authorities setting out a range of sentences for the offence of ACBH.

The majority of the cases referenced by Gomez involved cases where the Crown proceeded Summarily rather than by Indictment. [ 26 ] The authorities relied upon by Gomez suggest a range of sentence for ACBH from a Conditional Discharge, a Suspended Sentence and a jail sentence not to exceed 90 days to be served on an intermittent basis. [ 27 ] Gomez noted that in R. v. Jones , [2014] B.C.J. No. 127, at para. 9 , the Supreme Court Justice on appeal found that the appellant caused serious injuries to the victim requiring surgery.

Based largely upon the particular circumstances of the appellant, the Court found the sentence of four months imposed at the trial level was unduly harsh. The Appeal Court imposed a Suspended Sentence coupled with a two-year probation order. [ 28 ] Gomez did not take issue with the ancillary relief requested by the Crown. ANALYSIS

(

a) Sentencing Considerations for Unintended Collateral Effects on Immigration Status (

i) Applicable Legislative Framework of the IRPA and the Code [29] Section 36 (1)(

a) of the IRPA provides: 36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (

a) having been convicted in Canada of an offence under

an Act of Parliament punishable by a maximum term of imprisonment of atleast 10 years, or of an offence under

an Act of Parliament for which a term of imprisonment of more than six months has been imposed; [30]

Section 64 of the IRPA provides: 64(1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident ifthe foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or internationalrights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term ofimprisonment of at least six months or that is described in paragraph 36(1)(

b) or (c). [31]

Section 267 (

b) of the Code provides: 267 Every one who, in committing an assault, … (

b) causes bodily harm to the complainant, is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years or an offence punishable on

summaryconviction and liable to imprisonment for a term not exceeding eighteen months. [32] Gomez has been found guilty of two counts of ACBH. There can be no question that a finding of guilt is synonymous with a“conviction”: Morris v. R., (SCC), [1979] 1 SCR 405, at para. 34. [33] Similarly, whether a Suspended Sentence is imposed, a jail sentence to be served on an intermittent basis is imposed or astraight time sentence is imposed, all would be consequences that would flow from Gomez’s convictions. [34] The objective maximum possible sentence pursuant to s. 36 (1)(

a) of the IRPA determines Gomez’s admissibility status, thustriggering his risk of deportation. The actual sentence imposed pursuant to s. 64 of the IRPA affects his ability to appeal any finding ofinadmissibility that may be made against him. [35] By application of s. 64 (1) of the IRPA, Gomez’s convictions for ACBH would fall under the category of “serious criminality.” [36] By application of s. 64 (2) of the IRPA, Gomez is prohibited from appealing a finding of inadmissibility if he receives asentence of six months or more in prison.

A prison sentence of six months less one day would leave open the possibility of Gomez beingable to appeal a finding of inadmissibility. (ii) Possible Dispositions and their Collateral Consequences on Gomez’s Immigration Status [37] Whether the Crown position on sentence prevails or Gomez’s position on sentence prevails, he will still likely face a RemovalOrder as he will be inadmissible on the ground that he has been convicted of offences of serious criminality.

Moreover, if Gomez isimprisoned for at least six months he would lose his right to appeal any finding of inadmissibility resulting in the imposition of anyRemoval Order. (iii) Implications Arising from R. v.

Pham, 2013 SCC 15 [38] In Pham, the core issue dealt with by the Supreme Court of Canada (the “SCC”) turned on whether a sentence otherwise fallingwithin the range of a fit sentence could be varied by an appellate court on the basis that the offender potentially faced collateralconsequences under s. 64 of the IRPA that were not taken into account by the trial judge. [39] At the trial level there was a joint submission that Pham be sentenced to two years in prison in relation to two serious drugoffences. [40] Pham appealed the sentence to the Alberta Court of Appeal (the “ABCA”) seeking a reduction by one day in relation to the two-year sentence.

At the time, a two-year sentence meant Pham would lose his right to appeal from a Removal Order made against him. Asentence of two years less one day would preserve his right of appeal. This collateral consequence was not raised by either counsel forPham or the Crown before the sentencing judge. [41] On appeal, the Crown conceded that the two-year sentence could be reduced by one day without disturbing the range ofappropriate sentences.

Notwithstanding, the ABCA refused to vary the sentence on the basis that such a reduction would inappropriatelyundermine the provisions of the IRPA. [42] The SCC allowed the appeal, holding that: “a sentencing judge may exercise his or her discretion to take collateral immigrationconsequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and thedegree of responsibility of the offender”: [para. 14].

[ 43 ] Collateral consequences relating to immigration may be relevant to sentencing depending on the particular facts of the case; the weight to be given to them should be determined having regard to the type and seriousness of the offence: [paras. 12 and 13].

The collateral consequences are described as a “relevant factor amongst many others related to the nature and the gravity of the offence, the degree of responsibility of the offender and the offender’s personal circumstances”: [para. 20]. [ 44 ] The collateral consequences of a sentence are “any consequences for the impact of the sentence on the particular offender”: [para. 11].

Their relevance flows from the sentencing principles of individualization, parity and rehabilitation: • Individualization: in determining a fit sentence, the judge should take into account “objective and subjective factors related to the offender’s personal circumstances”: [para. 8]; • Parity: similar offences committed in similar circumstances will attract similar sentences, but if the personal circumstances of the offender are different, different sentences will be justified: [para. 9]; • Rehabilitation: “[W]hen two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender’s rehabilitation”: [para. 11]. [ 45 ] The weight to be given to collateral consequences will vary from case to case and should be determined having regard to the type and seriousness of the offence: [para. 12]. [ 46 ] The SCC cautioned that inappropriate and artificial sentences should not be imposed in order to avoid collateral consequences, which may flow from a statutory scheme or from other legislation, thus circumventing Parliament’s will: [para. 15]. [ 47 ] The collateral consequences must not be allowed to skew the process either in favour of or against deportation.

Nor can those consequences lead to a separate sentencing scheme establishing a range of sentence options where deportation is a risk: [para. 16]. [ 48 ] The further a sentence falls outside of an established range to avoid collateral consequences, then the less likely it will remain proportionate to the gravity of the offence and the responsibility of the offender.

The closer the varied sentence is to the range of otherwise appropriate sentences, the more probable it is that the varied sentence will remain proportionate: [para. 18]. [ 49 ] “In sum, collateral immigration consequences may be just as relevant in sentencing as the collateral consequences of other legislation or other circumstances specific to the offender”: [para. 22]. [ 50 ] Pham was applied by the British Columbia Supreme Court (the “BCSC”) in R. v. Almotairi , 2013 BCSC 2132 . Almotairi (the “accused”) was found guilty of assault with a weapon and aggravated assault.

The maximum available sentence for assault with a weapon was 10 years in prison. The maximum available sentence for aggravated assault was 14 years in prison. [ 51 ] The victim and the accused had been friends but had a falling out in their friendship. Following the falling out, they met up at a social function. The accused was playing pool when the victim aggressively approached him on three occasions. On the third occasion he punched the accused in the face.

The accused reacted by thrusting his pool cue at the victim, hitting him in his eye. [ 52 ] The victim sustained a penetrating traumatic brain injury that required three surgeries to treat. He remained in the hospital for five months. In addition, the victim suffered nerve damage resulting in partial paralysis in his left arm and leg. The physical injuries will impact the victim for the rest of his life. As a result of the attack, he became clinically depressed.

He suffers from anxiety and has difficulty sleeping. [ 53 ] The accused was a native of Saudi Arabia and was a foreign national in Canada at the time of his conviction.

He came to Canada to further his education at Thompson Rivers University School of Business and Economics. [ 54 ] The accused had no criminal record and was described in letters of reference as a “role model and a leader.” In addition, he was described as a nonviolent individual who reacted on the spur of the moment when he was aggressively confronted by the victim. [ 55 ] As a foreign national convicted of offences of serious criminality, the accused was inadmissible in Canada by operation of s. 36 (1) (

a) of the IRPA . As well, if the accused was sentenced to a term of imprisonment of six months or more he would be prohibited from appealing any finding of inadmissibility and any Removal Order by operation of s. 64 of the IRPA . [ 56 ] The Crown took the position that the appropriate range of sentence was between 16 months and up to 6 years in prison. Given the aggravating and mitigating circumstances, the Crown submitted that two and a half years in prison was appropriate. [ 57 ] The accused took the position that a range of sentence is not binding upon the Court.

The accused submitted that his personal circumstances and the unique circumstances surrounding the case would support the imposition of either a Suspended Sentence or a prison sentence to be served on an intermittent basis. [ 58 ] The Court agreed that the range of sentences for aggravated assault was from a low of 16 months to a high of 6 years: [para. 27]. [ 59 ] The Court also noted that the range of sentences provides guidelines and not hard and fast rules at para. 28: 28 While the range of sentences is an important consideration, ranges constitute guidelines rather than hard and fast rules.

A judge can properly order a sentence outside the range as long as it is in accordance with the principles and objectives of sentencing. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred: R. v. Nesogaluak , 2010 SCC 6 at para. 44 . A recent example of a sentence for aggravated assault outside the suggested range is R. v.

Nakamura , 2012 BCSC 327 in which Romilly J., in a case concerning a youthful first-time offender, ordered a suspended sentence. [ 60 ] The Court noted that the accused had no prior criminal record and was not a threat to re-offend. The victim committed an unprovoked assault on the accused which resulted in the accused reactively jabbing the victim in the face. The accused’s conduct was

characterized as negligent or reckless: [para. 33]. [ 61 ] The Court further found that the accused’s immigration status was also a proper matter for consideration and applied the SCC decision in Pham , at para. 34 : 34 Mr. Almotairi's immigration status is also a proper matter for consideration. In R. v. Pham , 2013 SCC 15 , the Supreme Court of Canada held that the immigration consequences of a sentence can be taken into account by a sentencing judge. The relevance flows from the application of the principles of individualization and parity.

A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 62 ] Based upon all of the circumstances, the Court imposed a sentence of six months, which the Court conceded was less than the normal range.

It was clearly the intention of the Court that the accused would have the benefit of an appeal in relation to his immigration status if there was a finding of inadmissibility resulting in the imposition of a Removal Order. The imposition of a sentence of six months rather than six months less one day, with respect, would appear to have been an inadvertent oversight. SENTENCE TO BE IMPOSED [ 63 ] As found in my Reasons for Judgment, it was aggravating that Gomez was the principal co-perpetrator responsible for the serious assaults on Tash and Kalantari.

He was the one responsible for recruiting his two friends from the nightclub to join with him in committing the assaults on Tash and Kalantari. While I do not find that there was any planning behind the assaults, the consequences were significant. [ 64 ] While a weapon was not used during the commission of the assaults, nonetheless both of the victims sustained bodily harm. Of the two victims, it was Tash who sustained serious injuries. [ 65 ] After Tash fell to the ground, he was viciously kicked by Gomez in the face. Tash was defenceless.

Gomez and his co- perpetrators offered no assistance to either Tash or Kalantari. Rather, they fled the area of the attack when they heard approaching sirens. [ 66 ] The physical and emotional impacts arising from the attack will likely follow Tash for the rest of his life. [ 67 ] In light of the nature of the assaults, Gomez bears a high degree of moral culpability for his actions. [ 68 ] General deterrence and denunciation are the paramount principles that would apply in the sentencing of Gomez. [ 69 ] Specific deterrence is of lesser concern.

I conclude from the submissions of Gomez, and in considering the letters of reference in his support, that his behaviour on March 23, 2013, was out of character. His actions were likely influenced by the consumption of alcohol that evening. It is mitigating that he has never been in trouble with the law in the past and he is unlikely to reoffend in the future. [ 70 ] It is also a relevant mitigating circumstance that Gomez is a committed father to his young family. He is hard-working and has the strong support of his employer.

The many letters of support establish that, except for this incident, he has otherwise led a positive and law abiding life. [ 71 ] It is also a relevant consideration that Gomez will also have to deal with the stigma that comes with the convictions. He now has a criminal record. This was a relevant consideration in the BCSC decision in Jones , supra , at para. 42. [ 72 ] Gomez’s immigration status is also a relevant matter for consideration: Pham , supra, and Almotairi , ibid.

As a result of the ACBH convictions, he is inadmissible in Canada on the ground that he has been convicted of offences of serious criminality. A prison sentence of six months or more prohibits Gomez from appealing any Removal Order to the Immigration and Refugee Board (the “Board”). [ 73 ]

Part 4 of the IRPA governs the immigration and refugee appeal process.

That process is highly structured including: • The practice and proceedings before either the Immigration Board or Refugee Board are governed by specific rules: [s. 161]; • Any appellant has the right to be represented by legal counsel: [s. 167(1)]; • Both divisions of the Board are a Court of Record: [s. 174]; • Both divisions of the Board have exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction: [s. 162]; and • In the conduct of any inquiry, a judge is not bound by technical rules of evidence but rather shall consider credible or trustworthy evidence: [s. 182]. [ 74 ] It is apparent that the Board has expertise in determining immigration consequences on any appeal from a Removal Order following a conviction for an offence of serious criminality.

It is also apparent that the imposition of a prison sentence of six months less one day for an offence of serious criminality for a permanent resident will not necessarily result in a successful appeal from a Removal Order. [ 75 ] It is significant in considering the immigration consequences facing Gomez that he is the father of two children who are Canadian citizens. One child is a newborn. Since his birth, the older child has had the benefit of the love, affection, guidance and support of his father.

The consequences to this young child in potentially losing that love, affection, guidance and support could be significant.

[ 76 ] I am not satisfied that a Suspended Sentence or a sentence of imprisonment to be served on an intermittent basis would meet the fundamental purposes and principles of sentencing contained in ss. 718 through 718.2 of the Code . [ 77 ] I am satisfied that a fit and proportionate sentence is six months less one day to be served in a Provincial Correctional Facility.

I am recommending on the warrant of committal that Gomez serve that sentence at the Fraser Regional Correctional Centre, which would allow his family a better opportunity to visit him. [ 78 ] Upon his release from custody, Gomez shall be subject to a probation order for a period of two years. The conditions of probation are as follows: 1. The statutory conditions of probation shall apply including you shall keep the peace and be of good behaviour; 2.

You shall report in person within 48 hours of your release from custody to a probation officer at 275 East Cordova Street, Vancouver, BC, and thereafter as directed; 3. At the direction of your probation officer, you shall attend and complete to the satisfaction of your probation officer anger management counselling; 4. You shall have no contact or communication directly or indirectly with Seyed-Pedram Hassan-Tash or Ardesshir Kalantiri; 5. You shall not attend at any known residence, place of employment or education institution for Seyed-Pedram Hassan-Tash or Ardesshir Kalantiri; 6.

You shall not have in your possession any weapons as defined by s. 2 of the Criminal Code of Canada , including knives except for the immediate purpose of the preparation and consumption of food, or for lawful employment purposes; 7. You shall not have in your possession those items enumerated in s. 515 (4.1) of the Criminal Code of Canada . [ 79 ] Pursuant to s. 738 (1) (

a) of the Code , there will be a Restitution Order in the sum or $5,000 payable to Ardesshir Kalantiri through the Clerk of the Court to compensate him for his dental expenses. [ 80 ] The Victim Surcharge applies. You will have two months in which to pay the surcharge following your release from prison. [ 81 ] Pursuant to s. 109 of the Code , you are prohibited from possessing those weapons described in s. 109 (2) for a period of 10 years. [ 82 ] Pursuant to s. 487.051 (1) of the Code , you are required to provide a sample of DNA, as the convictions pertain to primary designated offences. The Honourable Judge G. Rideout Provincial Court of British Columbia