R. v. Nasitwitwi Date:, 2011 BCPC 327

Citation: R. v. Nasitwitwi Date: 20111007 2011 BCPC 0327 File No: 8848-5-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MUTAFELA MASITWITWI EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE T. GOVE Counsel for the Crown: G. Oh Counsel for the Defendant: J. Percival Place of Hearing: Vancouver , B.C. Date of Hearing: October 7, 2011 Date of Judgment: October 7, 2011 [ 1 ] THE COURT: Mr.

Nasitwitwi is before me on an Information in which he has pled guilty to Count 1 which is on the 27th of May, 2011, in Vancouver, in committing an assault upon Joseph Ghattas and Ali Asadimofrad used a weapon, a golf club. He is also charged and has pled guilty to Count Number 6 in which on the 18th of September, he breached his bail by being out past a curfew of 10:00 to 6:00. [ 2 ] The facts can be summarized as follows. Shortly after midnight on May the 27th, the two named complainants were working as doormen or security at a nightclub in the 1000 block of Granville Street.

There was apparently a lineup of people to get into the club. They were outside handling the line. [ 3 ] Mr. Ghattas, who is the one who was the most injured, saw the accused and the co-accused approach. They were carrying and drinking beer. They were on the street sidewalk. The accused was being aggressive with people in the line and, at one point, threw his beer can in the direction of Mr. Ghattas. Mr.

Ghattas and the other complainant then escorted the two accused away from the lineup no doubt to prevent there being any further trouble. [ 4 ] The two accused, including the accused before me, said that they were going to come back and get them and kill them. Five to

10 minutes later, the two accused did return to the location of the nightclub carrying golf clubs. They were, I am told, irons. [ 5 ] Mr. Caron, who was the co-accused, swung his club at Mr. Ghattas and missed. He was taken to the ground by Ghattas who then ended up on the ground and, at this point, the accused Nasitwitwi swung the club he was carrying hitting Mr. Ghattas in the arm, in the body, in the face. In fact, whilst hitting him in the face, the club broke. The accused ran. The police attended and both accused were arrested shortly thereafter. They were both intoxicated. [ 6 ] The victim, Mr.

Ghattas, was injured more significantly than the police realized. I have read the victim impact statement which I am going to read

part into the record and I daresay that had the Crown turned their mind to it at an earlier date, this might have been charged as an aggravated assault with a weapon. [ 7 ] Mr.

Ghattas says in his thorough impact statement, he said: As a victim of violent assault with a metal weapon while in progress of my job in an unprovoked and unrelated matter, immediately after the assault with the gold club iron that was swung in full force at my kidneys, ribs, back, left shoulder, left face, and head, that was subsequently swung so hard on my head that the shaft had broken on the last impact, I did and do suffer ongoing medication for pain, aggravation and complications to a previous traumatic brain injury, blurred vision, confusion, extreme pain, swelling to my face, headaches, migraines.

I was diagnosed with a severe concussion. I was found to have blood in my urine which required specialized treatment and seeing of specialists. I do have an accepted WCB claim activated as a result of this assault. I have lost the short-term ability to drive safely as a result of the blows to my head. I must cab or arrange rides to work and home. I have lost shifts in earning potential. My vision is blurred and I will be seeing an eye doctor. I will need multiple eye exams and some sort of corrective lenses. I have kidney bruising. I have several chipped teeth.

I have lost, smashed, my wristwatch struck by the golf club. I had my phone smashed in my pocket by one of the blows to my back and ribs with the golf club. I was bruised badly and left unable to work for a period of time. I will be seeing a massage therapist and physical therapist and chiropractor. [ 8 ] He goes on to say under "Mental Impact": We have seen acts of violence in our industry. They are a result from a situation in the venue or denial of entry. Very rare and troubling have I seen or encountered an assault this vicious, unprovoked, and completely unrelated to my duties.

They were not patrons at the venue and were not denied access. He and his friend were severely intoxicated in public and were roaming the streets with beer cans. They stopped at our front door and began taunting patrons and spilling beer on staff and creating a scene uttering threats. They both threatened to come back with weapons and did. Since returning to work, I am very cautious, uneasy, and nervous as the male was found to live in a fleabag hotel less than a block away from my primary workplace.

There will be more costs as a result of the assault with a weapon and I am uncertain if they will be covered by WCB. [ 9 ] He goes on to say that: As an 18-year veteran of the industry, I currently own a consulting company that works with the Bar Watch program, the Vancouver Police, and the City of Vancouver Liquor Board. I am working on establishing a Bar Watch academy. We collectively do our best to make the District 1 Granville Entertainment Area safe for patrons entering our venues.

Again, I am very concerned and bewildered by the men's level of violence to an unprovoked situation with weapons they had to return to their residence to retrieve. Their combined actions were so angry, alcohol-fuelled, and random while wandering around drunk. I am glad to a certain degree that it was I who got struck with a weapon to the head and body rather than a defenceless citizen simply walking on the sidewalk.

I am very unnerved and shocked why/how the men even drunk could have premeditated violent thoughts and carry through planning to return to victimize and assault brutally random people that simply were working and not bothering them. I can only hope part of the sentencing includes compensation at least the material items smashed with the golf clubs to my body, the watch and the phone. [ 10 ] At the time of the offence, the accused was on probation from Ontario for assault. Since the offence, he has been released on bail on a number of occasions.

He was apprehended and spent short times in jail before being released when found on five occasions breaching his court orders. He was found drunk in public, he was found out past his curfew, and he has been in custody now since September the 18th continuously due to one of those breaches. [ 11 ] The circumstances of the accused: I am told by counsel that he is 22 years of age and he wants to be a music producer. He is enrolled in the University of the Fraser Valley; that at the time of the offence, he was living at the Bourbon Street Hotel which I happen to know is at 50 West Cordova.

He has family that lives in the Lower Mainland. He has siblings. He has had a number of jobs. [ 12 ] He points out through counsel that he was intoxicated at the time of this offence. He says that he has followed the terms of his bail to have no contact with the co-accused and has had no contact and that he apologizes to the victim. [ 13 ] The Crown submission is that this is an appropriate case for a jail sentence of eight to 12 months followed by probation with certain terms. The defence submits that I ought to consider a conditional sentence order. She says that he has plans for the future.

He is enrolled in college and he wishes to move in that direction. He has been in custody for approximately 30 days and he has had his first experience of being in jail. [ 14 ] The aggravating factors here are, perhaps, quite obvious. He is on probation for assault at the time that this offence occurs. The offence comes about under circumstances where he has no prior involvement with the victim or any of the people working at this venue. [ 15 ] Really, I think one could say that his conduct was he was looking for trouble.

He becomes offended, I guess because the doormen moved him away from the lineup, and he and his co-accused state quite clearly that they are going to come back and kill the two doormen. [ 16 ] He may well have been intoxicated, the police say he was, but he was not so intoxicated to have a fairly comprehensive working mind because he does exactly what he says he is going to do. He does come back. He comes back with weapons, one could hardly imagine a more lethal weapon that is not a firearm than a golf iron, and uses that golf iron in a manner which one might have argued that

he was trying to kill him. [ 17 ] Another aggravating factor, of course, is the degree of harm that he did to this man who was simply doing his job. I have already recounted through his victim impact statement. [ 18 ] Since the offence, he has continued to be in the community, not following the terms of bail. Alcohol appears to be a problem. [ 19 ] There are mitigating factors.

He is young, he does have a limited record, he has pled guilty, and he does have plans for the future which include attending school. [ 20 ] This is the sort of case where in weighing the considerations on sentencing, the community requires protection. It requires protection through the deterrence of this man as well as the deterrence of others through a strong statement on the sentencing principles. Denunciation plays a role. [ 21 ] The appropriate sentence, in my view, for the assault is 12 months in jail. I will credit him with the one month that he has spent in pretrial custody.

On the breach charge, he is sentenced to the 30 days, one-month pretrial custody. [ 22 ] The jail sentence will be followed by a probation order of 18 months.

He is to keep the peace and be of good behaviour and the other statutory terms. [ 23 ] He is to report to a 275 East Cordova probation officer forthwith upon his release from custody and thereafter as directed. [ 24 ] He is to attend for counselling or such similar programs as directed by the probation officer and complete the counselling or programs to the satisfaction of the probation officer. [ 25 ] He is to have no contact directly or indirectly with the two named complainants as well as the co-accused. [ 26 ] He is not to possess any weapons as defined by the Criminal Code . [ 27 ] He is not to be in an area of the City of Vancouver bounded by Cambie Street on the east, Stanley Park on the west, Vancouver Harbour on the north, and English Bay and False Creek on the south unless in a motor vehicle in transit. [ 28 ] There will be the ancillary orders of a DNA order secondary on Count 1 and there will be a s. 110 weapons prohibition for five years. [ 29 ] Now, I have not dealt with restitution because I do not have any numbers and I do not know what Mr.

Ghattas' actual expenses were. So I do not really have any evidence. Mr. Ghattas might want to be advised to seek some legal advice with respect to a civil action. [REASONS FOR SENTENCE CONCLUDED]