r v. Juan, 2015 QCCQ 12400

R. c. Gamarra Moran 2015 QCCQ 12400 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-090023-133 DATE: 3 December 2015 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Juan Carlos GAMARRA MORAN Offender _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] In the early hours of 19 May 2013, while intoxicated, Mr. Gamarra Moran broke into a dwelling occupied by his former spouse (G.V.G.), their children and her new companion (W.D.M.R.). He threatened G.V.G. A physical altercation ensued in which G.V.G. was struck in the head with a glass and suffered bodily harm. W.D.M.R. was also assaulted with a weapon. As a result, Mr.

Gamarra Moran pleaded guilty to four counts: break and enter and uttering threats, [1] assault with a weapon against W.D.M.R., [2] assault with a weapon against G.V.G., [3] assault causing bodily harm against G.V.G. [4] Mr. Gamarra Moran was earlier discharged on one count of aggravated assault and the parties agreed to conditional stays on two further counts. [ 2 ] The prosecution seeks a sentence of imprisonment for a term between twelve and fifteen months concurrent on the four counts.

This suggestion precludes the possibility of a conditional sentence on any of the offences because the count of break and enter carries a maximum of imprisonment for life and the remaining counts each carry a maximum of ten years. The defence proposes a more lenient disposition. Generally [ 3 ] As in the determination of any sentence that is fit and appropriate, and in the absence of a mandatory minimum sentence, there are two guiding points in this case.

T his decision must respect the principle of proportionality, and the other objectives of sentencing, while giving due consideration to the importance of individualised decision-making in accordance with the evidence. More specifically, a fit sentence in this case must be proportionate to the gravity of the offence and the degree of the offender’s responsibility for it. [ 4 ] Although the prospects of rehabilitation, enhanced responsibility and social reintegration are strong, the nature and gravity of the offences must also reflect objectives of denunciation and deterrence (general and specific).

This might have been achieved by a conditional sentence, especially as Mr. Gamarra Moran presents no danger to the victims or society. But a conditional sentence is not a viable option in this case. In my view, it is axiomatic, due to the principles of parity and totality, that a suspended sentence or a discharge would be inappropriate and disproportionate. Such dispositions might be appropriate in another case [5] but the four offences in question here are serious offences of violence that involve the personal integrity of the victims and the security of their home.

Only a term of imprisonment can satisfy the requirement of proportionality and the various objectives of sentencing. Removal [ 5 ] By any account, the submission of the prosecution is reasonable, perhaps even clement, that reflects an attentive examination of the circumstances and the prevailing jurisprudence. As Mr.

Gamarra Moran is a permanent resident, originally from Peru, [6] he is also exposed to removal or exclusion from Canada under the Immigration and Refugee Protection Act . [7] Section 36(1) of the Act provides that a person is liable to removal if he or she is convicted of an offence punishable by ten years or more or if he or she is sentenced for any offence to a term of imprisonment of six months or more. Further, section 64(2) of the Act provides that a person subject to exclusion or removal has no right of appeal against the order. Mr. Gamarra Moran [ 6 ] Mr. Gamarra Moran has no criminal record to date.

It appears that the offences to which he pleaded guilty were all part of a single and isolated event. The victim G.V.G. affirmed this several times. There is no evidence of a continuing problem of substance

abuse, although the events in question occurred while he was highly intoxicated. There is also no evidence that Mr. Gamarra Moran poses a danger to the victims or anyone else. Since these events he has found steady employment. He has found a steady and nourishing relationship. There are several members of his immediate family in Montréal, including his mother and siblings, and his relations with them are strong and mutually supportive. His relations with his former spouse are not only stable but good. This extends to her companion, with whom she has another child.

It also extends to members of G.V.G.’s family. [ 7 ] Mr. Gamarra Moran is fully involved in the lives of his children and to the greatest degree possible he is committed to their care, upbringing and financial security. The risk of recidivism is negligible to nil. Mr. Gamarra Moran has expressed remorse for his actions and there is every reason to believe that this expression is both sincere and enduring. The objectives of rehabilitation and an enhanced sense of personal responsibility have been substantially, if not entirely, achieved.

The pre-sentence report in this matter was prepared in July 2014 and the portrait in the present paragraph reflects developments and improvements since that time that were put into evidence. All the evidence suggests now that Mr. Gamarra Moran is not only a bon père de famille but a productive and law-abiding member of society. G.V.G. [ 8 ] G.V.G. testified at the hearing on sentence. She began by explaining that nobody, and certainly not the accused or defence counsel, had asked her to attend court.

She said that her children had spoken to her of the hearing and that she then decided on her own to attend the proceedings with the intention to speak to the court. She did and the substance of her testimony was striking. [ 9 ] G.V.G. said that the incident on 19 May 2013 was entirely out of character and indeed, that it was an aberration. She said that there had never previously been an incident of violence involving Mr. Gamarra Moran and any member of the family. She testified that relations within her family and his are close and remain so.

As for her relations with him, she has no fear or anxiety and she said that relations between her and Mr. Gamarra Moran are strong. She trusts him and relies on him for his contributions to the upbringing and welfare (in every sense) of the children. She said that his steady employment and a stable relationship at home have ensured a positive relationship with her family, his family and that of her companion. Finally, and in the clearest terms, she implored the court not to render a decision that could lead to the separation of Mr. Gamarra Moran from his children or his removal from Canada.

Never have I heard representations of the type or force delivered by G.V.G. Gravity and totality [ 10 ] Mr. Gamarra Moran pleaded guilty to one count of break and enter in the residence of his former spouse, and uttering threats therein. He also pleaded guilty to two counts of assault with a weapon, against his former spouse and her companion, and one count of assault causing bodily harm to his former spouse. These are four distinct serious offences that form part of one extended transaction. Taken alone, the offences of assault are serious.

Taken together, with the count of break and enter with threats, the objective gravity of all four offences is apparent and, in my view, would also exclude an intermittent sentence of ninety days or less. As with all cases, the sentence in this file must be consistent with the principles of parity among similar cases and totality in individual cases. [ 11 ] Break and enter in a dwelling, with threats, is a serious offence. The gravity of the offence is reflected in the maximum punishment of life.

There is no minimum sentence applicable here, but there can be no doubt that the violation of personal privacy and security that is inherent in such offences is a significant and aggravating element, as is the additional element of threats and the accompanying assaults. As in the circumstances of this case, the offence is not only a crime against property but in important ways a crime against the person.

The range of sentences for such offences is variable, and highly sensitive to the facts of individual cases, but terms of imprisonment are typical, if not the norm. [ 12 ] Counts 3 and 4 are distinguishable with reference to one element in each offence. They refer, however, to the same transaction and the same victim. Count 3 specifies assault with a weapon and Count 4 specifies assault causing bodily harm. The assault with a weapon was the assault that caused bodily harm.

Although the rule in Kienapple does not technically apply, the distinction between the offences is not sufficient to warrant a difference in the sentence for the two because it would amount essentially to double punishment for the same delict. With the agreement of the parties, I will enter a stay for this reason on Count 3, although I hasten to say that this stay cannot diminish a fit sentence on Count 4. This leaves in effect the necessity of a fit sentence on Counts 1, 2 and 4. Compassion and fitness [ 13 ] I am persuaded that Mr. Gamarra Moran sincerely regrets the offences to which he pleaded guilty.

I accept that this conduct was aberrant. I accept also that the chances of recidivism are remote. The defence proposes, essentially for reasons of compassion, a sentence that is more lenient than the sentence proposed by the prosecution. There is no doubt a place for compassion in the law of sentencing. This is one aspect of individualised and proportionate sentencing. But there are limits. No matter how compelling the circumstances might be, compassion cannot justify an unfit sentence. In this case, Mr.

Gamarra Moran pleaded guilty to four serious offences, each of which carries a maximum sentence of ten years or more. The offence of break and enter in a dwelling carries a maximum of imprisonment for life. The sentence of twelve to fifteen months that is proposed by the prosecution in this case already takes into account considerations of compassion. There are two specific reasons why a more lenient sentence would be unfit. The first is the objective gravity of the four offences, which is self-evident. The second is parity in sentencing.

In view of the gravity of these offences, a more lenient sentence than that proposed by the prosecution would privilege Mr. Gamarra Moran over offenders in comparable circumstances and would fail to acknowledge the seriousness of the harm done to the victims. For these reasons, I agree that the sentence suggested by prosecution is fit and reasonable, having regard to all of the objectives enumerated in the Code and recognised in the jurisprudence.

Collateral factors [ 14 ] While the Supreme Court has said in Pham that a sentencing court may consider collateral factors in determining a sentence, [8] it and the Court of Appeal have also made clear that such considerations cannot justify an unfit or disproportionate sentence. [9] In this case, Mr. Gamarra Moran is at risk of serious consequences under the Immigration and Refugee Protection Act . This risk is a function of the penalties provided for the offences in question under the Criminal Code and of the provisions of

section 36 of the Immigration and

Refugee Protection Act . This risk is thus an ineluctable consequence of the law enacted by Parliament by creating offences that carry maximum penalties of ten years or more. It is not a function of the sentence imposed by this court. Whether this risk will be realised is not a question that lies within the jurisdiction of this court. In an appropriate forum, and before the appropriate authorities, Mr. Gamarra Moran would have an opportunity to plead that in the circumstances of his case, he should not be subject to removal from Canada. But I repeat that this issue is not within the jurisdiction of this court.

Similarly, the principle of parity in sentencing does not allow me to privilege Mr. Gamarra Moran by giving effect to the sincere plea expressed in this court by G.V.G. The forum for such considerations is not here. ORDER FOR THESE REASONS, Mr. Gamarra Moran is sentenced to imprisonment for a term of twelve months on Count 1, six months on Count 2 and nine months on Count 4, all of which shall be served concurrently. As noted, there will be a stay on Count 3. There will be an order under

section 109 for a period of ten years. There will be an order for DNA. ____________________________________ PATRICK HEALY, J.C.Q. M e Catherine Hébert For the prosecution M e Manlio Del Negro For Mr. Gamarra Moran