r v. DANNI, 2015 QCCQ 7544

R. c. Surendrean 2015 QCCQ 7544 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC CITY OF MONTRÉAL "Criminal and penal division" N° : 500-01-110227-144 500-01-110228-142 DATE : August 28, 2015 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

DANNI SURENDREAN Accused ______________________________________________________________________ SENTENCE ______________________________________________________________________ [ 1 ] Mr Surendrean pleaded guilty to two counts of assault with a weapon, one count of uttering threats, and two counts of breach of a recognizance. The relevant facts can be briefly summarized as follows. On August 18, 2014, at 3 AM, the plaintiff, Mr Suhel Uddin, witnessed an argument between three men as he stood outside an open apartment window.

He decided to wake up Mr Kasongo, the building superintendent, who arrived and told the men to lower their voices. In answer to this, the accused, Mr Surendrean, threatened to stab the superintendent with a knife. When he was informed by the others that Mr Kasongo was the superintendent, this seemed to anger Mr Surendrean even further. He grabbed a knife from the kitchen and chased Mr Kasongo.

Mr Kasongo ran as he called 911 and was able to escape. [ 2 ] Mr Surendrean returned to the building shortly thereafter, where he punched Mr Suhel Uddin, who fell to the ground. [ 3 ] The police arrived at the apartment where they found Mr Surendrean in his bed, fully clothed. He was uncooperative upon his arrest and very aggressive, even once brought to the station. The police noted that he was considerably intoxicated. [ 4 ] The recognizance which was breached refers to a file which has since been resolved with a guilty plea.

Mr Surendrean was under court conditions prohibiting him from consuming alcohol and from possessing any weapons, both of which were thus breached during the incident of August 18. Evidence on sentencing [ 5 ] The Crown tendered the criminal record of Mr Surendrean which begins in 2009 with mischief and theft. In 2010, he served jail time for extortion, as well as failure to comply with a recognizance and with a probation order. At the end of 2010, he served 18 months for robbery and extortion and 15 days for failure to respect a recognizance.

In 2011 he was found guilty of obstruction, two counts of failure to respect a recognizance and one count of failure to respect a probation order. In 2011, at 20 years old, he was sentenced two years in the penitentiary followed by two years probation for armed assault. He was released in January 2013, a year and a half before he committed the present offenses, while still on probation. [ 6 ] Mr Cyrus Amin testified on behalf of the accused. He is a criminologist with a doctorate obtained in France in the field of “Pshychocriminologie”.

He has a deep interest in developing alternative sanctions for youthful offenders in need of support, therapy and adequate structure. In the present file, Mr Amin met Mr Surendrean in prison, hoping to glean some understanding of his problems. During his visits with Mr Surendrean, Mr Amin noted that incarceration was particularly difficult on Mr Surendrean. Mr Surendrean spoke to him of his problem with alcohol abuse, and his psychological difficulties caused by being surrounded by violent prisoners.

Mr Amin noted that Mr Surendrean feels considerable shame due to his actions in the present file, which he attributes largely to excessive drinking. Mr Amin also refers to the report, signed by Dr Bédard-Charette, a psychiatrist at Philippe-Pinel Institute, who evaluated Mr Surendrean last May. While that report concludes that this case does not present a

section 16 defense, it nevertheless does highlight certain mental health issues affecting Mr Surendrean. The psychiatrist concludes as follows: Nous retenons, compte tenu de la symptomatologie présentée par le sujet, un possible diagnostic de maladie affective bipolaire de type deux. Il est cependant pas impossible que Monsieur présente également un trouble explosif intermittent ou encore les stigmates d’un trouble déficitaire de l'attention avec hyperactivité.

On peut également reconnaître les stigmates de trouble de personnalité limite. [ 7 ] Indeed, while at the Philippe-Pinel Institute, Mr Surendrean was prescribed some mood stabilizing medication, which seem to have had some positive effect on him. The psychiatrist recommends that he continue to take medication and seek a psychiatric

counselling. [ 8 ] Mr Amin is hopeful that a specific treatment program, adapted to the needs of Mr Surendrean will help to curb future incidents of violence and allow him to develop strategies in order for him to become a law-abiding citizen, able to control his violence and free of substance abuse or dependency. When Mr Surendrean is released from jail, Mr Amin is prepared to assist him and his family in ensuring a meaningful follow-up with any treatment deemed necessary and appropriate. [ 9 ] Mr Surendrean testified as well.

He presented an impassioned plea requesting to put an end to his jail time as quickly as possible. He feels that he has learned his lesson, and that he is fully aware of the nature of his problems, linked to excessive alcohol consumption and to mental health issues. He deplores the violence surrounding him in prison, as well as the fact that he is not receiving any drug counselling or psychiatric help that he needs. Mr Surendrean expresses deep remorse and accepts full responsibility for his actions.

He finds strength in the solid support of his mother who he has let down, but who remains in every way prepared to assist her son. [ 10 ] Mr Surendrean also provided the Court with a seven-page handwritten letter, which appears to be a heartfelt acceptance of the errors he has committed in the past. He recognizes that his first periods of incarceration were not effective in helping him to remain on the right path. But he is convinced that he is finally ready and able to confront his weaknesses, make serious changes to his lifestyle, and become the person he so desperately feels he should and could be.

The possible diagnosis of type II bipolarity seems to explain a lot of issues that he has been confronting since a young age. As a teenager, he was not able to battle against the negative influences of his peers. He developed antisocial tendencies and fled his problems by turning to alcohol. He is now committed to doing whatever is necessary to stay away from alcohol.

Mr Surendrean certainly shows potential and he proudly notes that he finished his high school degree, despite being afflicted with an attention deficit disorder. [ 11 ] Mr Surendrean is well aware that the present crimes were committed after he served a two-year sentence. He was hoping to be on his way to cleaning up his life at that time. But without adequate treatment programs and proper structure, it did not take much before Mr Surendrean again turned to alcohol when faced with difficult situations.

He was extremely intoxicated at the time of the commission of the present offenses. [ 12 ] Mr Surendrean understands that at 24-years-old, the option to truly change and make something worthwhile of his life remains in his hands. In fact, he asks this Court for a second chance and he is determined that with the help of Mr Amin and the unwavering support of his mother, he will become an asset to society and prove that a person can change for the better, with enough self-motivation, determination, and support. The position of the parties [ 13 ] The Crown submits that two years would be an appropriate sentence.

Mindful of the general principle of the progression of sentences, but taking into consideration that the victims in the present file were not actually injured, the Crown does not seek a sentence beyong the last one served. Nevertheless, considering the serious record of Mr Surendrean, a penitentiary term is warranted. The Crown explains that in the present case the pre-trial detention to be deducted from the sentence should be counted as of October 2014.

In fact, the period between August and October was already computed when Mr Surendrean pleaded guilty to breaches of probation in an earlier file. [ 14 ] The defense understands the general principle requiring increased sentences, particularly for similar offenses. But he asks this Court to consider the particular situation of Mr Surendrean and his clear motivation to effectively deal with his mental health issues and alcohol abuse. The defense argues that no further jail time is warranted, and that the most effective sentence would be one with a meaningful structure and conditions in a probation order.

SENTENCING PRINCIPLES [ 15 ] The fundamental principles of sentencing are codified in sections 718 and following of the Criminal Code , which provide that the goal of sentencing is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society. This goal is met by the imposition of sanctions intended to meet one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and others from committing offences;

c) to separate offenders from society when necessary;

d) to assist in rehabilitating offenders;

e) to provide reparation for harm done to victims or to the community;

f) to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. [ 16 ] A sentence should be similar to sentences imposed on similar offenders for similar offences and the Court must take into account any aggravating or mitigating circumstances, mindful of the principle that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. [ 17 ] The sentencing judge must strive to tailor a sentence that reflects the objective gravity of the offence as well as the subjective responsibility of the offender.

Analysis [ 18 ] The aggravating circumstances in the present matter are most importantly the prior record of Mr Surendrean. It would appear

that the previous sentences he has received, particularly a 2 -year sentence in the penitentiary, have had little or no effect on his behaviour. The Crown understandably regards his last sentence which he received for a similar offense as a starting point for the imposition of this sentence. Indeed, because he was also on probation when he committed this offense, the sentence suggested by the Crown is by no means unduly harsh, and it also takes into consideration the fact that the victims in the present matter were not harmed. [ 19 ] The logic of the Crown’s position is sound.

Nevertheless, the Court is particularly influenced by the testimony and letter written by Mr Surendrean. His recent diagnosis suggesting that he is bipolar, and in need of medication to help control his behaviour goes along way to help Mr Surendrean begin to understand his repeated errors in the past and his difficulty effecting meaningful change to his behaviour. Mr Surendrean asks the Court for another chance.

Without purporting to take a ‘’chance’’ on Mr Surendrean, the Court is of the opinion that at this crossroads in his life, at 24–years-old, Mr Surendrean is truly prepared, perhaps for his first time, to engage fully and seriously in whatever programs and treatment that may be necessary for him to turn his life around. [ 20 ] It is based on these considerations that I am prepared to view the time served until now (that I calculate at 16.5 months using a ratio of 1.5:1) to be sufficient to meet the twin goals of deterrence and denunciation in the present case.

It is the Court’s opinion that taking into account time served, it is appropriate now to suspend the imposition of any additional sentence in a true application of section 731(1) (2) of the Criminal Code . FOR THESE REASONS, THE COURT: [ 21 ] Suspends the passing of the sentence for a period of three years . The probation order will include strict conditions intended to structure Mr Surendrean's release from prison, provide him with resources to improve his situation, and ensure that he presents no danger to the public.

With a view to imposing a sentence that seeks to encourage full rehabilitation of Mr Surendrean, I also urge the Crown to take the matter seriously and not hesitate to bring this file back to me should Mr Surendrean be incapable of complying with the probation order - in which case a lengthier prison term will be imposed. [ 22 ] The terms of the 3 year probation will be as follows: - The first two years will be with follow-up. He will be required to meet with a probation officer within 72 hours of his release from jail.

He will be required to meet with his officer as often as requested by the officer; - He will make an appointment with a psychiatrist within 7 days of his release from prison. He will meet with his psychiatrist as often as required.

He will follow any recommendations made by his psychiatrist including complying with treatment plans and/or medication prescribed; - He will enroll and follow through with anger-management therapy; - It will be forbidden for him to consume any alcohol or any drugs except with a valid medical prescription; - It will be forbidden for him to have in his possession any type of weapon or imitation thereof; - It will be forbidden for him to communicate directly or indirectly with Chowdhury Suhel Uddin and Tunda Kasongo. [ 23 ] Mandatory orders: - A mandatory order under

section 109 of the Criminal Code is imposed prohibiting the possession of any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a life; - A mandatory order under

section 487.051 is imposed, directing that he provide a sample of bodily substances required for the purpose of DNA analysis. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. M e Anne Gauvin Attorney of the DPCP M e Michel Aubin Attorney of the accused Date of hearing: July 3 rd , 2015