Her Majesty the Queen - v. -, 2014 SKPC 211

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 211 Date: December 17, 2014 Information: 24460560 Location: Beauval, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Janos Papp Appearing: Derrel G. Brown For the Crown Robert L. Dick For the Accused DECISION M. F. Martinez , J Background Facts [ 1 ] On May 16, 2012, the accused, Janos Papp, was with his girlfriend of ten years and some of their friends at his cabin near Beauval, Saskatchewan.

They spent most of the day drinking and shooting various firearms for fun. [ 2 ] In the evening, Mr. Papp and his girlfriend went for a pleasure ride on two all-terrain vehicles ( ATVs ).

[ 3 ] At the Lac LaPlonge dam they encountered a group of seven twenty-somethings who were drinking and celebrating a birthday. Mr. Papp and his girlfriend stopped to chat with the young people for a short period and then departed. [ 4 ] Somehow, Mr. Papp left his girlfriend behind when she had trouble with her ATV. A couple of the young men who they met at the bonfire came over to help her. It seems that Mr. Papp’s girlfriend became so annoyed with what she perceived to be the incompetence of her helpers that when she finally returned to Mr. Papp’s cabin, she blamed her delay on the young men.

Incredibly, she falsely accused them of various transgressions including telling a very drunk Mr. Papp that they had raped her. [ 5 ] Not surprisingly, this information enraged Mr. Papp. He put a loaded handgun into his jacket pocket, grabbed a metal rod or pipe, mounted his ATV, and headed for the dam to exact retribution. [ 6 ] When Mr. Papp arrived at the bonfire, he drove his ATV into Emile Laliberte and Tedi Hood.

His ATV then tipped over onto its side and when he got up off the ground he waved around the handgun demanding to know why his girlfriend had been raped. [ 7 ] Emile Laliberte managed to get behind Mr. Papp and hit him on the back of the head with what was described as a log, knocking him to the ground. It is not clear exactly when it was that the handgun first fired — either immediately before or when Mr. Laliberte struck him. [ 8 ] When Mr. Papp hit the ground, the young men in the group swarmed him. They tried to wrestle the handgun from his grasp.

It was during this brief struggle that the handgun discharged again. [ 9 ] One of the bullets fired from Mr. Papp’s handgun grazed Tedi Hood’s cheek. [ 10 ] The young man who disarmed Mr. Papp, threw the handgun into the river and then joined his friends in laying a vicious beating on him. [ 11 ] That beating did not end until Mr. Papp’s friends came upon the scene in their vehicles. They blocked the access road and were carrying weapons that appeared to be sticks or broom handles. Fortunately, a physical confrontation between Mr.

Papp’s friends and the young people was averted when his friends learned that Tedi Hood had been shot and needed to go to the hospital. [ 12 ] As a result of these events, Janos Papp faced several serious criminal charges. [ 13 ] On March 19, 2014, the Crown re-elected to proceed by

summary conviction. The accused consented to the Crown’s re- election and entered guilty pleas to the following offences under the Criminal Code : • carrying a weapon for a purpose dangerous to the public peace contrary to

Section 88 of the Criminal Code , • in committing an assault on Tedi Hood used a weapon (a handgun), contrary to

Section 267 (

a) of the Criminal Code , and • in committing an assault on Tedi Hood and Emile Laliberte unlawfully caused them bodily harm contrary to

Section 267 (

b) of the Criminal Code . [ 14 ] Counsel made their sentencing submissions on July 23, 2014, and I reserved my decision until today. Sentencing Submissions The Crown’s Submission [ 15 ] Crown counsel submitted that Mr. Papp should be incarcerated for a period from six to 18 months. The Crown’s position is that a conditional sentence order (a jail sentence served in the community) is not in the public interest as it might be seen to be condoning

the use of firearms in settling arguments. However, Crown counsel conceded that a hybrid sentence of a shorter and intermittent custodial sentence followed by a longer conditional sentence order might be acceptable. In either case, the Crown submitted that the custodial or hybrid sentence should be followed by two years probation with some fairly strict conditions. [ 16 ] The Crown relied on the following cases which I summarize below: R v. Hoskin [1] , R. v. Thunder [2] , R v. Alkhatib [3] , and R v.

Middleton [4] . [ 17 ] In Hoskin the accused applied for leave to appeal a sentence of three years imprisonment for assault causing bodily harm after he plead guilty to shooting the victim in the hand with a loaded revolver he had used to threaten her and two others. Although, the description of events in the case is sparse, it is apparent that the accused intended to scare these people but did not intend to shoot anyone.

The British Columbia Court of Appeal denied the application noting that the accused’s own counsel had suggested the three year sentence and for this reason his appeal had no prospect of success. [ 18 ] In Thunder the Crown appealed a sentence of 30 days for possession of a weapon for a purpose dangerous to the public. In what the Court described as “an alcoholic stupor”, the accused fired a .22 magnum rifle so close to his common-law wife’s head that he nearly knocked her out and the bullet grazed the back of her head.

Although the accused had a good work history, no record of similar offences, and this incident was totally out of character for him, the Alberta Court of Appeal imposed a 9 month sentence, commenting that “This kind of lawless activity must be condemned.” [ 19 ] In Alkhatib the accused was convicted of break and enter, assault causing bodily harm, and assault with a weapon (a motor vehicle). The accused was leaving the scene of the break-in when the victim returned home. In his haste to escape, the accused struck the victim with his car causing severe and permanent injuries to the victim.

The accused had a limited criminal record. The judge refused to impose a community based sentence because he found that, in the circumstances, the offences should attract a sentence greater than two years and he was not satisfied that the public would not be endangered if the accused served his sentence in the community. As a result, the judge sentenced the accused to 30 days for the break-in followed by 18 months for the assault with a weapon.

The offence of assault causing bodily harm attracted a concurrent sentence of 18 months. [ 20 ] The Supreme Court of Canada’s decision in Middleton simply confirms that a conditional sentence order following a 90 day intermittent sentence is a legal sentence. The Accused’s Submission [ 21 ] Relying on the following cases, counsel for the accused agreed that a custodial sentence is appropriate but submitted that I should allow Mr. Papp to serve all of it in the community: R. v. Swenson [5] The accused appealed his conviction for assault causing bodily harm and his sentence of six months imprisonment.

The accused was a bouncer who, while breaking up a fight, forcibly removed the complainant from the licensed premises by grabbing him from behind in a one-armed choke hold, then dropping him on the pavement causing injuries to his face and teeth. The accused had no prior criminal record and was acting in the course of his employment when he injured the complainant. The Saskatchewan Court of Appeal dismissed the appeal on conviction and substituted a one-year suspended sentence. R. v. Boyko [6] The 19 year old accused had cut off another driver who then smashed the window of the accused’s vehicle.

The accused panicked, drove recklessly to escape the other driver, and in so doing, struck but did not injure him. This was a “one off” incident for which the accused was very remorseful. He had no criminal record. Of his own accord, he enrolled in personal counselling and further driver training. The trial judge refused to consider a conditional discharge although this decision does not say what sentence the judge did impose. In his appeal decision, Mr. Justice Barclay commented that the trial judge had overemphasized general deterrence and denunciation and

failed to adequately weigh other factors relevant to sentencing. He allowed the appeal and substituted a sentence of a conditional discharge. R. v. Owens [7] This was manslaughter case which the British Columbia Court of Appeal described as being at the low end of the manslaughter gradient. The accused was threatened by two dangerous and violent individuals who had beaten up one of his friends. They came after him in his yard. He retrieved a shotgun from his house to scare them. The individuals attempted to flee in a car.

The accused slipped on some ice and accidentally fired the shotgun through the driver’s side window killing the female driver and injuring a passenger. Aside from this tragic incident, the accused was of good character. The British Columbia Court of Appeal affirmed the trial judge’s three year suspended sentence with probation. R. v. Deane [8] Mr. Deane was a member of the Tactics and Rescue unit of the Ontario Provincial Police. He was deployed on a crowd control mission. The unit was met by a number of protesters. Some of the officers fired at vehicles that were attempting to scatter them.

As a result of the gunfire, one of the protesters was killed and Mr. Deane was convicted of criminal negligence causing death. The Crown submitted that only a penitentiary sentence was appropriate; whereas defence counsel submitted that if a sentence of less than two years was imposed, a conditional sentence order should be considered. The trial judge imposed a conditional sentence order of two years less a day as the public would not be endangered by the accused serving his sentence in the community. Analysis [ 22 ] As the Crown re-elected to proceed by way of

summary conviction before the defendant entered his plea, the maximum sentence for the firearms offence is six months imprisonment and 18 months for each of the assault charges. [ 23 ] As none of the offences attract a minimum jail sentence and the maximum sentence for any of the offences is not greater than two years, a conditional sentence order is an available sanction if I am satisfied that such a sentence would not endanger the community, and that the sentence would be consistent with the purpose and principles of sentencing described in the Criminal Code . [9] [ 24 ] The sentence I impose must satisfy one or more of the objectives listed in s. 718 of the Criminal Code .

Those objectives include denouncing the criminal conduct, deterring the accused and others from similar conduct in the future, separating the accused from society where that is necessary, assisting to rehabilitate him, and promoting a sense of responsibility in him and acknowledging the harm done to his victims. [ 25 ] In attempting to meet these objectives, the Criminal Code requires that I take into account any mitigating and aggravating factors related to the offence or to the offender and that the sentence should be similar to sentences imposed on other offenders in similar circumstances. [ 26 ] In arriving at my decision, I have considered several mitigating factors. [ 27 ] Although the defendant did not enter a guilty plea early in the process, he did do so not long after hiring his present counsel, who is the second lawyer on record for him. [ 28 ] Mr.

Papp is 57 years old. His relationship with his girlfriend ended immediately after this incident. He is gainfully employed and has worked in the Lloydminster area as an oilfield project manager for the past 14 years. He filed several supporting letters from friends who have known him for years. [ 29 ] The defendant does not have a criminal record. [ 30 ] At the sentencing hearing Mr. Papp was obviously remorseful, ashamed, and embarrassed about what he had done. His counsel filed Mr. Papp’s written apology letter, but more importantly, the defendant publicly and sincerely apologized to the

complainants and the members of the community who attended court that day. [ 31 ] An unusual, but nonetheless relevant mitigating factor is that the effects of the beating he sustained at the hands and feet of the complainants were more severe than the injuries he inflicted on them. [ 32 ] Tedi Hood has a permanent scar on his cheek where the bullet grazed him. According to his Victim Impact Statement, he had trouble sleeping for a few days after the incident.

Emile Laliberte did not suffer any serious or permanent injuries in the incident and, in his own Victim Impact Statement, like Tedi Hood, he described “having anxiety” as a result of this incident. [ 33 ] On the other hand, the victims and their friends inflicted significant damage to the accused’s left eye socket which, despite undergoing surgical repair, has left that part of his face permanently disfigured. In addition, the beating broke some of the wires holding his ribcage together following heart surgery he had undergone before this incident.

He required further surgery to repair that damage. [ 34 ] The offsetting aggravating factors are obvious and lie in the facts of this case. The accused was extremely drunk, intentionally drove his ATV into two people, wielded a loaded handgun to threaten and intimidate his victims, and injuring one of them with a stray bullet from that handgun. Conclusion [ 35 ] In my opinion, the paramount objectives of the sentence I impose are to denounce Mr. Papp’s reckless and dangerous conduct and to deter him and others from similar conduct. [ 36 ] I do not doubt that no matter what sentence I impose, Mr.

Papp is not a person who is likely to re-offend. For these reasons, specific deterrence of this defendant is not a significant sentencing factor. [ 37 ] Although no particular sanction is necessary to deter Mr. Papp from similar or other criminal conduct in the future, general deterrence remains an important consideration. However, as Mr.

Justice Lamer warned in Proulx , sentencing judges should be wary of “placing too much weight on deterrence when choosing between a conditional sentence and incarceration”, and then went on to say that “a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed” [10] . [ 38 ] Of all of the cases provided to me by counsel, the facts in Thunder are the most similar to the facts in the case before me.

In Thunder , the Alberta Court of Appeal imposed a nine month jail sentence where the very drunk accused discharged a .22 magnum caliber rifle near his wife’s head and injured her. The Court of Appeal imposed a nine month sentence in that case but I note that a conditional sentence order was not an option available to it the time. [ 39 ] In the circumstances of the case before me, I am satisfied that a custodial sentence from nine months to one year would be appropriate and proportionate to the seriousness of the offences and to Mr. Papp’s degree of responsibility.

The remaining question is whether I should allow the defendant to serve his sentence in the community. [ 40 ] I am satisfied that the community would not be endangered if he is allowed to serve his sentence in the community. [ 41 ] In the circumstances of this particular case and of this particular defendant, I believe that I can sufficiently denounce his criminal conduct and meet the broader sentencing objective of general deterrence through a lengthy conditional sentence order with properly crafted conditions. [ 42 ] For these reasons, on the s. 88 charge I impose a six month conditional sentence order with the following conditions in addition to the mandatory conditions.

Mr. Papp: • must abide by a 24 hour curfew (house arrest) for the entire six months of this order, except for employment purposes, medical

emergencies, to meet with his supervisor, to attend assessment, counselling, and treatment as required by other conditions of this order, to perform community service hours, or with the prior written permission of his supervisor • may leave his residence to attend to personal matters and to purchase groceries, on Saturdays, between the hours of 10 a.m. and 1 p.m. • may leave Saskatchewan in order to attend to the matters described in the previous exceptions to his curfew • must not contact Emile Laliberte or Tedi Hood • must not possess or consume alcoholic beverages or illicit drugs • must not attend any place where the primary purpose is the sale or consumption of alcohol • must attend for assessment and treatment for alcohol addiction for personal counselling as directed by his supervisor • must not possess any firearms or ammunition. [ 43 ] As for the remaining charges, I impose a global sentence consisting of an 18 month conditional sentence order to be served concurrently with the six month order.

The conditions of the 18 month order will be the same as for the six month order except that after the first six months Mr. Papp’s curfew will be from 10 p.m. until 7 a.m. for the following six months (with the same exceptions as during the house arrest period) and he must perform 100 hours of community service work in the first 12 months of this order. [ 44 ] The assault charges are primary designated offences under s. 487.04 (

a) of the Criminal Code and for that reason I authorize the taking of bodily tissue samples from Mr. Papp for the purpose of DNA analysis as required by s. 487.051(1) of the Criminal Code . Further, I impose a 10 year firearms prohibition under s. 110 of the Criminal Code . [ 45 ] Finally, I understand that the RCMP seized a couple of rifles from the defendant’s cabin and that they belong to his friend, Donald Chomiak. I order that the seized firearms must be returned to their lawful owner upon his presenting the appropriate licenses, permits, and registration documents. ______________________________ M. F. Martinez, J