R. v. Makhniashvili, 2011 ONCJ 772

COURT FILE No.: TORONTO DATE: 2011· 12 ·08 Citation: R. v. Makhniashvili , 2011 ONCJ 772 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — VAKHTANG MAKHNIASHVILI Before Justice R.

Rutherford Reasons for Sentence released on December 8, 2011 John Cisorio ........................................................................................................... for the Crown Calvin Barry ........................................................................................................ for the accused RUTHERFORD, J.: [ 1 ] On May 11, 2011 Vakhtang Makhniashvili pleaded guilty to 3 counts of aggravated assault. On May 13, 2011 I heard the facts and I found Mr. Makhniashvili guilty. On September 8, 2011 Mr. Cisorio for the Crown and Mr.

Barry for the defence jointly requested that I make an order pursuant to s.21(1) the Mental Health Act that Mr. Makhniashvili be subject to a psychological assessment. I made the order and the assessment was done. On October 20, 2011 I heard full submissions from counsel. I have reviewed all exhibits including a pre-sentence report, two psychiatric reports, photographs, medical reports of the victims and victim impact statements. I also heard from Sean Ure, Sonja Dodd, Delores Langer and David Langer, the victims of Mr. Makhniashvili’s crimes.

I adjourned the matter to December 8, 2011 for my reasons for sentence. CIRCUMSTANCES OF THE CASE [ 2 ] On September 14, 2009 Mr. Makhniashvili and his family endured a horrific tragedy. Their teenaged daughter Mariam left to go to school and never returned home. Mr. Makhniashvili and his family were naturally devastated and distraught by the disappearance of the girl. There was a very public and widespread police investigation into the matter. [ 3 ] Mr. Makhniashvili and his family resided at 20 Shallmar Boulevard, Unit 716, in the City of Toronto.

Sean Ure and his young family lived across the hall from the Makhniashvili family. On May 7, 2010 Mr. Ure, his family and a friend were socializing when Mr. Makhniashvili began banging at their front door. Mr. Ure opened the front door to find Mr. Makhniashvili in an agitated and angry state yelling about his missing daughter. He blamed Mr. Ure for her disappearance. Mr. Makhniashvili forced his way into the apartment and before Mr. Ure could stop him, Mr. Makhniashvili drew a large 6-7 inch butcher knife from his belt and began to stab Mr. Ure in the abdomen. Mr.

Ure sustained a further cut to the palm of his left hand. Ms Dodd opened the door from the room she was in when she heard the commotion. She was holding their baby at the time. She saw Mr. Makhniashvili proceed down the hallway with a knife in his hand. She was terrified for the baby’s safety. She locked and barricaded the bedroom door. Mr. Makhniashvili continued to wave the knife at Mr. Ure while screaming about his missing daughter. Everyone feared for their safety. A guest of Mr. Ure convinced Mr. Makhniashvili to leave the apartment. Upon exiting Mr.

Makhniashvili reached to the floor to retrieve the home made sheath he dropped when he entered the apartment. When Mr. Makhniashvili reached down for the sheath, the guest slammed the door on Mr. Makhniashvili’s hand and took the knife away. [ 4 ] Mr. Ure sustained significant injuries to his stomach and liver which required surgery. He was hospitalized for 6 days. [ 5 ] Mr. Makhniashvili was released on bail on May 10, 2010. David and Delores Langer acted as sureties for Mr. Makhniashvili. As part of the judicial interim release order Mr. Makhniashvili was required to reside with the Langers.

On June 7, 2010 the Langers relieved themselves as sureties because Mr. Makhniashvili was non- compliant with the rules and discipline of their household and was behaving in a strange manner. Mr. Makhniashvili was released again, this time with his wife acting as surety. Mr.

Makhniashvili was subject to many conditions. [ 6 ] On November 4, 2010 Mr. and Mrs. Langer were at their residence. They heard a knock at the front door. Mrs. Langer could not see who it was and asked her husband to answer the door. When Mr. Langer was about to answer he observed a man run to the side of the house. Mr. Langer looked out the window and saw a man standing on the driveway. Once Mr. Langer opened the door he recognized the man as Mr. Makhniashvili. Mr. Langer thought Mr. Makhniashvili required assistance and asked if anything was wrong. Mr. Makhniashvili immediately spun around and faced Mr. Langer.

Mr. Makhniashvili lunged at Mr. Langer stabbing him in the abdomen with a knife. Mr. Langer attempted to push the knife away but Mr. Makhniashvili kept pushing it into Mr. Langer’s abdomen. During the struggle not only did the blade of the knife make a deep cut into Mr. Langer’s abdomen but the blade of the knife also made a deep cut to Mr. Langer’s left hand. Mr. Makhniashvili pushed Mr. Langer to the front porch, dislocating and fracturing Mr. Langer’s shoulder. While Mr. Langer was on his back Mr. Makhniashvili continued to stab at him. Mr.

Langer used his feet to block the knife and consequently he suffered defensive wounds. Mrs. Langer arrived on the scene after hearing her husband scream. Mr. Makhniashvili turned to Mrs. Langer and began stabbing her arm with the knife. Mr. Makhniashvili repeated the words “she wrote that.” Mrs. Langer continued to kick at Mr. Makhniashvili in an attempt to get him to retreat. Mr. Makhniashvili moved away briefly but then turned towards them. Mrs. Langer picked up a loose tile on the porch and threw it at Mr. Makhniashvili. Mr.

Makhniashvili retreated to the sidewalk, turned to face them and threw the knife in the Langers direction. [ 7 ] Mr. Makhniashvili turned himself in to the police the same day of the stabbing. Before driving to the police station he called his wife and told her what he had done and told her he knew who was behind a newspaper article. Upon Mr. Makhniashvili’s arrest the police searched his vehicle and found a second knife located in the glove compartment. [ 8 ] Mr. and Mrs. Langer were transported to St Michael’s Hospital. Mr. Langer underwent immediate surgery for the stab wound to his stomach.

During the surgery it was discovered that the wall of his small intestine had been cut. Mr. Langer received 10 stitches between his left thumb and index finger. The cuts to his feet did not require medical intervention. He remained in the hospital until November 9, 2010. He was required to return to the hospital on November 24, 2010 where he underwent a further surgery for the shoulder injury. Two metal pins were placed in his shoulder as part of the surgical procedure. [ 9 ] Mrs. Langer underwent surgery for the stab wounds she received to her left forearm. There was significant arterial and nerve damage.

She also sustained many defensive wounds. She remained in the hospital until November 6, 2010. PERSONAL CIRCUMSTANCES OF MR. MAKHNIASHVILI [ 10 ] Mr. Makhniashvili is 51 years of age. He is married and has two children. He has no criminal record. [ 11 ] Mr. Makhniashvili and his family are originally from Georgia. He is an educated man. In Georgia he completed secondary school. He completed musical studies at the Tbilisi State College of Pop Music in 1982 and furthered his education at Tbilisi State University where he received his Doctorate degree in Philosophy and Sociology.

He taught music at the College of Pop Music and also played in a philharmonic orchestra from 1982 to 1990. I am told that Mr. Makhniashvili lectured at the Institute of Philosophy in Georgia and according to Ms Tabidze, Mr. Makhniashvili travelled to the United States on one occasion as a visiting scholar. Mr. Makhniashvili and his wife lived in the United Sates for a period of time and while there Mr. Makhniashvili continued to do research in the field of philosophy. He also studied English as a second language. [ 12 ] In 2003 Mr.

Makhniashvili and his wife Lela Tabidze made the difficult decision of leaving their children with relatives in Georgia to immigrate to the United States. Mr. Makhniashvili and his wife believed that immigrating to the United Sates would allow them to achieve a better life for themselves and their children. The children were 10 and 9 years old at the time. Mr. Makhniashvili and Ms Tabidze lived in California from December 2003 to May 2009. They kept in regular contact with their children. [ 13 ] Mr.

Makhniashvili did not find employment but continued to do research at the Centre for Process Studies at the Claremont School of Theology in California. Ms Tabidze obtained employment quickly in California. She worked as a care giver for elders. Not only did she support Mr. Makhniashvili and herself but money was regularly sent to Georgia to support the two children. [ 14 ] In May of 2009 Mr. Makhniashvili and Ms Tabidze immigrated to Canada. Mr. Makhniashvili looked for work as a skilled worker and as a private music teacher.

He attended a three week job search program at Woodgreen Community Centre that was geared to new immigrants. Unfortunately he was not successful in securing employment. Ms. Tabidze continued to financially support the family. [ 15 ] One month after arriving in Canada Mr. Makhniashvili and his wife sent for their children. The family lived together and spent time adjusting to their new life in Canada and their new life together as a family. According to Mr. Makhniashvili, Ms Tabidze and their son George everything seemed normal.

The children were happy to be reunited with their parents. [ 16 ] On September 14, 2009 everything changed. Mr. Makhniashvili’s daughter Mariam went missing and to this day has not been found. There was a very public and large scale police investigation and intensive search for the young teenager. Mariam’s disappearance, needless to say, devastated Mr. Makhniashvili and his family. Mr. Makhniashvili became completely consumed in trying to find his child. According to Ms Tabidze, Mr.

Makhniashvili spent the majority of his time searching Missing Persons websites on the internet and most, if not all, of his conversations were about finding their daughter. Mr. Makhniashvili, on his own initiative, walked through ravines while armed with a knife searching for his daughter. According to Ms Tabidze, this activity was unlike anything Mr. Makhniashvili had done in the past. Mr. Makhniashvili did not attend bereavement group meetings with his wife, preferring to deal with the tragedy on his own. In time the family became somewhat isolated from others and kept to themselves. Mr.

Makhniashvili began to further isolate himself from his family because he was solely focused on finding Mariam. He lost a significant amount of weight and was sleeping infrequently. [ 17 ] Both Drs. Gojer and Wilkie opine in their respective psychiatric reports that Mr. Makhniashvili’s behaviour prior to the commission of all of the offences, appears to have been driven by delusional thinking. The most likely psychiatric diagnosis for Mr.

Makhniashvili is that of Delusional Disorder. Delusional Disorder, according to the two experts, is a major mental illness where a person is deluded in a specific domain. In Mr. Makhniashvili’s case both experts agree it is in the persecutory domain. At page 22 of Dr.

Willkie’s report she points out the definition of Delusional Disorder, persecutory type from the DSM-IV-TR: “when the central theme of the delusion involves the person’s belief that he or she is being conspired against, cheated, spied on, followed, poisoned, or drugged, maliciously maligned, harassed, or obstructed in the pursuit of long-term goals, small slights may be exaggerated and become the focus of a delusional system.

The focus of the delusion (“querulous paranoia”) and the affected person may be engaged in repeated attempts to obtain satisfaction by appeal to the courts and other government agencies.” [ 18 ] Mr. Makhniashvili’s delusions appear to have been triggered significantly by the disappearance of his daughter. Dr. Gojer opines that Mr. Makhniashvili experienced profound grief and although Mr. Makhniashvili presented as stoic after the disappearance of his daughter, her disappearance severely impacted his perception of others. Dr.

Wilkie in coming to her conclusion points out that the Makhniashvili family, after Mariam’s disappearance, became more isolated from family and friends. Mr. Makhniashvili wanted to be self-reliant within his immediate family. This caused Mr. Makhniashvili to distrust others outside of the home. [ 19 ] He developed paranoid delusions about his former neighbours Mr. Ure and Ms Dodd. On the day of the stabbing of Sean Ure, Mr. Makhniashvili received a phone call from a media outlet asking if he knew anything about a body that had been found in a park. Mr. Makhniashvili became upset and decided to confront Mr.

Ure because Mr. Makhniashvili was convinced Mr. Ure was connected to the disappearance of his daughter. [ 20 ] Similarly Mr. Makhniashvili developed paranoid delusions about his former sureties, the Langers. Leading up to the stabbing Mr. Makhniashvili became distrustful of the Langers. His distrust focused on their interest in the disappearance of Mariam. At some point the Langers became concerned about Mr. Makhniashvili’s behaviour and they successfully applied to be relieved of their supervisory role on Mr.

Makhniashvili’s judicial interim release because they no longer believed they could properly supervise him in the community. Just days before Mr. and Mrs. Langer were stabbed, Mr. Makhniashvili’s son George went missing for 24 hours. George’s disappearance was reported in the media. Mr. Makhniashvili became upset about an

article written in the Toronto Star about him and his family. Mr. Makhniashvili wrongly believed the Langers were connected to the article. Two days after the

article was published Mr. Makhniashvili attended the Langers home and attacked them. [ 21 ] His delusions, according to the expert reports, all appear to have something to do with either the disappearance of the child and/or the dissemination of information about the Makhniashvili family. [ 22 ] Dr. Wilkie states in her report that Delusional Disorder is a mental illness that tends to have its onset later in life. She says often it can occur in one’s thirties and beyond. This illness can often remain hidden until there is a precipitating event. Dr.

Wilkie states at page 23 of her report: “The course of delusional disorder can be quite variable. The disorder may be chronic, although waxing and waning of the cognitive and emotional preoccupation with the delusional belief often occurs. In other cases, periods of remission may be followed by subsequent relapses, and in yet other cases, the disorder may remit within a few months, without subsequent relapse. A better prognosis may be suggested when a persecutory subtype is associated with a precipitating event; this may be the case with Mr.

Makhniashvili.” [ 23 ] Doctors Gojer and Wilkie both suggest that the standard treatment for Delusional Disorder of this kind involves both pharmacological and psychological treatment. Although persons diagnosed with this mental disorder often have limited insight into the nature of their mental illness and are not always complaint with taking medication, Mr. Makhniashvili told Dr. Wilkie he no longer has the paranoid thoughts he once held about the victims. He also told Dr. Gojer that he is willing to take pharmacological treatment.

VICTIM INPUT [ 24 ] On October 20, 2011 I heard statements from Sean Ure, Sonja Dodd, Delores Langer and David Langer. I have also read each of their victim impact statements. I have further reviewed medical reports pertaining to Sean Ure, David Langer, and Delores Langer. I have also viewed photographs depicting the many injuries suffered by Mr. and Mrs. Langer. [ 25 ] To say that these 4 people have been impacted by Mr. Makhniashvili’s actions is an understatement. Mr. Makhniashvili attended the residence of each of the two couples and viciously attacked 3 out of the 4 people.

Ms Dodd on May 7, 2010, thankfully uninjured, came out of a room where she was bathing her 7 month old son when she heard screams from her husband. She saw Mr. Makhniashvili holding a knife and saw her husband had been stabbed. [ 26 ] Mr. Ure stated he still sees Mr. Makhniashvili’s eyes when he tries to sleep. He feels fear when the doorbell to their home rings or whenever he hears a raised voice. [ 27 ] Mr. Ure had emergency surgery to repair intra-abdominal injuries. He was hospitalized for 6 days. Mr. Ure suffered a through and through stab wound injury to the left lateral segment of the liver.

He also suffered a full thickness injury to the anterior wall of the stomach. Mr. Ure suffered a further laceration to the palm of his left hand. This injury required 4 sutures. [ 28 ] The recovery was stressful and difficult because not only did he lose a lucrative contract but he was also unable to assist in the care of his infant son. He could not hold his child which left Mr. Ure feeling helpless and depressed.

Adding to the stress was the fact that he and his family decided to move from their apartment on short notice because they were afraid to remain living in the building because the Makhniashvili family was still there. [ 29 ] Sonja Dodd stated that she typically is a trusting citizen and always felt safe in her community; however the events of

May 7, 2010 changed things for her. She no longer feels secure in her home. She becomes afraid when there is an unexpected knock at her door. It reminds her of the terror she felt back on the day of the incident. Because of Mr. Ure’s injuries and his hospital stay, Ms Dodd was required to take unpaid leave from work for one week to stay home with the baby. This amounted to a $1,500.00 loss to the household income. [ 30 ] Delores Langer’s life has been changed significantly as a result of Mr. Makhniashvili’s actions. Mrs. Langer described herself as an outgoing person who loved to garden, cook and play sports.

She never shied away from physical activity. She was a chef by trade and worked in commercial and community kitchens. She can no longer continue with this kind of employment because she now has paralysis in her left hand and she has little strength in her left arm. She can no longer perform basic cooking tasks, play the sports she likes or work in her garden. She is concerned about driving because of her inability to properly grip the steering wheel. She requires her husband to help her dress each day and help her brush her hair. This is humiliating for Mrs. Langer.

She is afraid to be alone and is now afraid of the dark. Her sense of independence and self-sufficiency has been compromised. [ 31 ] Mrs. Langer suffers from chronic pain in her hand. Because of the through and through laceration on the left forearm, Mrs. Langer required surgery to repair tendons, to repair nerve damage and to repair the radial artery. She takes medication, however, she finds the constant pain in her arm interferes with her ability to relax and focus. She has never suffered in this manner in the past and consequently has become depressed.

This summer she was depressed to the point of requiring psychiatric care. [ 32 ] David Langer’s life has been similarly impacted. He was hospitalized for several days after undergoing abdominal surgery. Mr. Langer was required to return to the hospital on November 24, 2010 for further surgery to repair his dislocated and fractured shoulder. The second surgery terrified him because he was still recovering physically and emotionally from the first surgery. [ 33 ] Mr. Langer can no longer fully rotate his right shoulder. His stomach still aches in the area where Mr. Makhniashvili penetrated the knife. Mr.

Langer can no longer lift heavy objects and has difficulty gripping items, consequently Mr. Langer cannot do construction work or home repairs. He cannot continue in his private investigation business because of his lack of physical ability. His leisure time has also been compromised because he can no longer play tennis, volleyball and basketball. [ 34 ] Mr. Langer feels frustrated and angry that he was unable to protect his wife from Mr. Makhniashvili’s attack. He feels sad when he sees and hears his wife suffer in pain. Mostly he feels inadequate that he is now forced to rely upon others for support.

THE CROWN’S POSITION [ 35 ] Mr. Cisorio, on behalf of the Crown, submits that a period of incarceration in the range of 8-10 years is the appropriate sentence. Mr. Cisorio argues that general deterrence, specific deterrence and denunciation are the paramount sentencing principles to be considered in this case. The Crown argues that given the use of a weapon, the level of violence exhibited, the injuries sustained by three separate victims, the fact that Mr.

Makhniashvili was on bail at the time of the commission of two of the offences and the planning and premeditative nature of the offences, a significant jail sentence is required. THE DEFENCE’S POSITION [ 36 ] Mr. Barry, on behalf of Mr. Makhniashvili, agrees that a penitentiary sentence is required. He submits, notwithstanding the serious nature of the offences, in these particular circumstances a two year jail sentence followed by three years probation is the appropriate sentence. Mr.

Barry argues this sentence would adequately reflect general deterrence, denunciation and still consider the principle of rehabilitation. Mr. Barry argues that when Mr. Makhniashvili committed each of the three offences he was suffering from a mental disorder which came to light after Mr. Makhniashvili experienced a terrible family tragedy. Mr. Barry argues that not only is Mr. Makhniashvili remorseful for his actions, but more importantly he has some insight into his mental illness and is prepared to take the necessary pharmacological and psychological treatment to deal with the disorder. Mr.

Barry argues the Court must not ignore the principle of rehabilitation and ought not impose a sentence that is so crushing to thwart any efforts on Mr. Makhniashvili’s part to participate in rehabilitative programming. THE LAW [ 37 ] Both counsel have provided me with many sentencing authorities. Although I will not be referring to all of the cases, I have reviewed all of them. [ 38 ] The cases referred to me by the Crown and the Defence reflect a range of sentence which is fact and case specific.

This is not unusual because sentencing is an individualized function and a sentencing judge must take into consideration the unique factors of the specific case before her or him in order to fashion an appropriate sentence. [ 39 ] The Crown provided a number of cases where trial and appellate courts imposed penitentiary sentences for similar offences. I accept that penitentiary sentences are commonplace for the offence of aggravated assault. A number of cases provided by the Crown include sentences in the range of 3 to 5 years, substantially less than what the Crown is asking for.

While the Crown provided these cases to establish the necessity of imposing a penitentiary sentence, Mr. Cisorio nonetheless argued that the facts and

circumstances of the offences before this Court are particularly egregious and contain aggravating factors not present in the other cases,therefore, a sentence in the range of 8 to 10 years ought to be imposed. [40] In R v. Johnson [1998] B.C.J. NO.2924 (B.C.C.A.) the British Columbia Court of Appeal, in discussing the offence ofaggravated assault states that sentences at the lower end of the range tend to reflect “fight” situations in which an altercation escalatesand someone is injured as a result.

Sentences at the higher end of the range tend to reflect unprovoked assaults with a weapon against adefenceless victim. [41] In R v. Tusek [1999] O.J. No. 3413 (C.A.) a 19 year old with no criminal record stabbed a stranger in a restaurant. He had3 accomplices with him. The sentence of 4 years was upheld by the Court of Appeal but in so doing the Court commented that it was atthe bottom end of the acceptable range of sentence. [42] In R. v. Khan [1991] O.J. No. 1025 (C.A.) affirmed [1992] S.C.C.A. No. 346 Ms Khan was sentenced to 8 years for anunprovoked knife attack on a stranger at a subway station.

The offender suffered from a mental disorder and had a dated criminal recordfor crimes of violence. [43] In R. v. Craig 2005 BCCA 484 , [2005] B.C.J. No. 2180 (C.A.) Mr. Craig was convicted of aggravated assaulton a former domestic partner. He stabbed the victim in the abdomen. The victim also received cuts to her hands. He was sentenced to 2years but on appeal, the sentence was varied to 3 years. The Court of Appeal commented however, that a 4 year sentence would havebeen appropriate. [44] In R v. Armstrong 2003 BCSC 1057 , [2003] B.C.J.

No. 1667 (S.C.) the offender was convicted of 2 counts ofaggravated assault for repeatedly striking his bail supervisor over the head with a baseball bat. When his probation officer intervened,Mr. Armstrong struck the probation officer with the bat. Serious injuries were sustained by both victims. He had previous convictionsfor uttering threats. He had psychiatric issues for which he was receiving some attention but the Court found that Mr. Armstrongdemonstrated little remorse.

Due to the planned nature of the attack, the serious injuries sustained and the fact that the victims were partof the corrections system, the accused was sentenced to 8 years. [45] In R. v. Wu [1994] N.B.J. No.96 (C.A.) the offender was angry with the victim because the victim had previouslyassaulted and harassed the offender. Mr. Wu attacked the victim with a knife while he was sleeping attempting to blind him. The victimwas stabbed multiple times, leaving him with severe scarring, very limited use of his left hand and badly damaged legs and feet.

Mr.Wu, who had no criminal record, was sentenced to 9 years. [46] Mr. Barry, on behalf of the defence has referred me to many authorities reflecting sentences at the lower end of the rangeof sentence in aggravated assault cases. Mr. Barry argues that although penitentiary sentences are commonplace for aggravated assault,the Court must not lose sight of the unique circumstances of each case. He argues there are unique circumstances in Mr.Makhniashvili’s case; therefore, a low penitentiary sentence is appropriate. [47] In R. v. DeSilva [2010] O.J.

No. 4862 (S.C.J.) the offender was sentenced to 2 years less one day after pleading guilty toaggravated assault. He targeted his neighbour at a medical clinic and attacked him with a cane. The victim was struck multiple timesand received broken ribs, a broken hand, broken fingers and multiple bruises. The victim had been charged with sexually assaulting theoffender’s daughter. This angered Mr. DeSilva so he attacked the victim. The Court held that, notwithstanding the viciousness of theattack and the vulnerability of the victim, the appropriate sentence was 2 years less one day. The Court considered Mr.

DeSilva’s guiltyplea, a favourable pre-sentence report, his emotional state at the time of the offence and the fact that the offence was out of character forMr. DeSilva. [48] In R. v. Taghiev, [2004] O.J. No.5519 (S.C.J.) the offender was sentenced to 2 years less one day. The offender stabbedan acquaintance in the back of the neck over a minor dispute. The stabbing was planned. The victim sustained serious injuries. Theoffender had a criminal record, was very young and had a supportive family.

The Court found that although general deterrence anddenunciation were predominant sentencing principles, the offender’s youth and familial support allowed for a good possibility forrehabilitation and consequently the offender was sentenced to the maximum upper reformatory sentence. [49] In R v. Tourville 2011 ONSC 1677 , [2011] O.J. No. 1245 (S.C.J.) the offender and the victim were involved in afight in which the victim suffered multiple stab wounds. The offender had no criminal record.

He was aboriginal and after reviewing aGladue report, the Court found many of the systemic factors facing aboriginal peoples in conflict with the law were present in theoffender’s personal circumstances. Given this background, the Court took a restorative approach in fashioning the appropriate sentencewhile keeping in mind the severity and number of injuries sustained by the victim. The Court also held that the fight between theoffender and the victim was lawful until the offender used a knife. The offender was sentenced to 21 months in jail followed byprobation. [50] In R v. Deesasan [1996] O.J.

No. 489 the offender was sentenced to one year in jail. He stabbed the victim in theabdomen after an altercation on a public bus. The victim was hospitalized for several days. The offender was under a great deal of stressat the time because his wife had deserted him taking their child with her. At the time that the offender was being sentenced he hadcustody of the child. The Court found that although general deterrence was paramount, the offender was on the road to rehabilitatinghimself. PRINCIPLES OF SENTENCING [51] Criminal law is a system of values.

Section 718 of the Criminal Code of Canada codifies the fundamental purposes ofsentencing long recognized by the common law. Those purposes include the denunciation of unlawful conduct, deterrence both generaland specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims of thecommunity and promotion of a sense of responsibility in offenders and acknowledgment of the harm done.

[ 52 ]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that the sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also sets out various aggravating factors, which do not apply in this case. It requires that a sentence be similar to those imposed on similar offenders in similar circumstances, that the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

AGGRAVATING FACTORS [ 53 ] There are many aggravating factors in the case before me. Mr. Makhniashvili used a knife during the commission of each offence, inflicting serious injuries to all three victims. There was planning and pre-meditation to each of the three attacks. The assaults all occurred at or in the homes of the victims. Regarding the May 7, 2010 incident, Mr. Ure’s wife and 7 month old baby were present. The impact of Mr. Makhniashvili’s actions has had a tremendous impact on the lives of the victims. Mr.

Makhniashvili was on judicial interim release for violent offences at the time he committed further violent offences. The three offences were unprovoked and there was an element of surprise to the assaults. MITIGATING FACTORS [ 54 ] Mr. Makhniashvili pleaded guilty to the offences. The guilty plea is demonstrative of Mr. Makhniashvili’s remorse and full acceptance of his responsibility for his actions. Mr. Makhniashvili made a statement before sentence. He apologized to Sean Ure, Sonja Dodd, Delores Langer, and David Langer and to his family. I accept his remorse is genuine. Mr.

Makhniashvili suffers from a mental disorder. This illness appears to have revealed itself after the disappearance of Mr. Makhniashvili’s daughter. His mental illness played a

part in the commission of the offences. ANALYSIS [ 55 ] This is a very sad case that has had serious consequences for many. It is a case where a mentally ill man suffered a horrific event in his life and subsequently made decisions that lead to equally horrific consequences. [ 56 ] Mr. Makhniashvili is living every parent’s nightmare, the disappearance of a child. The effect on him and his family has been unbearable. They live with the loss each day. Unfortunately Mr. Makhniashvili, rather than seeking professional help to cope with the tragedy, chose to deal with the ordeal alone.

This proved to be devastating for Mr. Makhniashvili and others. What Mr. Makhniashvili required was psychiatric intervention to assist with grieving the loss of his daughter and to assist him in understanding his mental illness. His inability to cope appears to have lead to the serious attacks on Mr. Ure, Mrs. Langer and Mr. Langer. [ 57 ] The degree of violence used by Mr. Makhniashvili was significant. It was clear through his actions he targeted specific individuals and had a specific plan as to how he was going to assault them. On each occasion, Mr. Makhniashvili went to the victim’s homes armed with a knife.

This demonstrates the planning that went into his actions. He viciously stabbed three separate individuals causing permanent injuries to two of them. He caused emotional anguish to all the individuals concerned. Attacks of this nature emphasize how vulnerable people can be to unexpected attacks of violence when simply going about their daily business. Fear is created and people begin to worry. This is not how people should live in our community.

This is of concern to the Court and must be factored in when determining the appropriate sentence. [ 58 ] What is particularly aggravating in this case is the fact that all three of the offences were committed either at the front door or within the home of the victims. Society must feel confident that the sanctity of the home is respected. The home must be a place of peace, safety and security. Courts must, therefore, send a strong message to the community that this serious violation of space and peace will not be tolerated. [ 59 ] Mr.

Makhniashvili’s actions were reprehensible and I must ensure that any sentence imposed adequately address the principles of protection of the public, denunciation and general deterrence. Having said that however, I must also consider the principle of rehabilitation and not ignore Mr. Makhniashvili’s personal circumstances. Although rehabilitation is not the predominant sentencing principle in the case before me, it must be considered when looking at the mitigating factors surrounding Mr. Makhniashvili. [ 60 ] Mr. Makhniashvili is a 51 year old educated man. He pleaded guilty to three serious offences.

He provided an oral statement to the Court where he uttered a sincere apology to the victims of his crimes and to his family. I accept his remorse is genuine. He has no prior criminal record. He has a supportive family. After at least two psychiatric assessments it has been determined that Mr. Makhniashvili likely suffers with a mental illness known as Delusional Disorder. Both doctors agree that Mr. Makhniashvili was delusional at the time of the commission of the offences; therefore, I find that Mr. Makhniashvili’s mental illness played a contributing role in the commission of the offences.

Although his delusional thinking does not excuse his actions, it mitigates his state of mind at the time of the commission of the offences. [ 61 ] Although Mr. Makhniashvili has limited insight into his mental illness, Dr. Wilkie states that Mr. Makhniashvili advised her that he no longer has paranoid thoughts about the victims of the offences and Dr. Gojer states that Mr. Makhniashvili is not adverse to pharmacological treatment. This is encouraging because it demonstrates Mr. Makhniashvili may now be more inclined to be proactive in dealing with his psychiatric illness.

Both psychiatrists recommend a course of treatment for Mr. Makhniashvili and I am of the view that with appropriate psychiatric treatment and continued family support, Mr. Makhniashvili will learn to understand and live with his

mental illness in a healthy manner. I cannot ignore, when fashioning the appropriate sentence, the fact that Mr. Makhniashvili has some rehabilitative prospects. [ 62 ] As I initially expressed, this is a tragic case that has had devastating consequences for many. The level of violence exhibited by Mr. Makhniashvili was significant. It was planned, unprovoked, the victims were defenceless and the violence occurred in the victims’ homes. For those reasons the range of sentence suggested by the defence does not adequately address protection of the public, denunciation and general deterrence.

Equally, the range of sentence suggested by the Crown, in my view, does not adequately take into consideration the personal tragic circumstances of Mr. Makhniashvili, Mr. Makhniashvili’s genuine remorse or the fact that Mr. Makhniashvili‘s mental illness played a role in the commission of the offences before the Court. [ 63 ] For the above reasons and taking into account protection of the public, denunciation, general deterrence and rehabilitation, I sentence Mr. Makhniashvili to 6 years in the penitentiary.

Two (2) years in relation to the aggravated assault of May 7, 2010 and 4 years consecutive but concurrent to each other in relation to the aggravated assault of November 4, 2010. Mr. Makhniashvili has been in custody for 13 months; therefore, he is to be credited pre-sentence custody on a 1 for 1 basis. Mr. Makhniashvili will serve a total of 4 years and 11 months. [ 64 ] There will be an s.109 order. Mr.

Makhniashvili will be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), crossbow, restricted weapon, ammunition and explosive substance for life. [ 65 ] Further, pursuant to s.487.051(2), having regard to the circumstances of this offence and this offender, I am satisfied that the public interest in the protection of society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders justifies an order authorizing the taking of samples from Mr.

Makhniashvili for the purpose of forensic DNA analysis. Mr. Makhniashvili has not established that the granting of such an order would have a grossly disproportionate impact on his privacy and security of the person. Released: December 8, 2011 Signed: “Justice R. Rutherford” Justice R. Rutherford