R. v. Gajraj, 2013 ONSC 1401

CITATION : R. v. Gajraj, 2013 ONSC 1401 COURT FILE NO.: 897/11 DATE: 2013-03-08 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) C. Valarezo, for the Crown ) ) ) - and - ) ) ) Deodat GAJRAJ ) ) ) S. Wilson, for the Defendant ) Defendant ) ) ) ) HEARD: March 5, 2013 REASONS FOR SENTENCE Ricchetti, J. OVERVIEW [ 1 ] On December 17, 2012, a jury found Mr. Gajraj guilty of aggravated assault with a weapon on Mr. Thaher on September 4, 2009. The only real issue at trial was whether Mr. Gajraj intended to stab Mr. Thaher. [ 2 ] The matter comes before me today for sentencing. THE FACTS [ 3 ] Mr. Gajraj was 20 years old at the time of the events.

[ 4 ] Both men had been drinking prior to the incident. However, neither was drunk. [ 5 ] During a telephone call and some yelling at each other, Mr. Thaher and Mr. Gajraj agreed to meet at a local high school to fight. They met. The fight started. It was to have been a fist fight and it proceeded that way for awhile. [ 6 ] During the course of the fight, Mr. Gajraj pulled a knife from his pocket. He waived the knife around. The knife cut Mr. Thaher on his hand and Mr. Thaher was stabbed in his abdomen.

While disputed at trial, I am satisfied the evidence established beyond a reasonable doubt that the knife was withdrawn by Mr. Gajraj from his back pocket, pulled out, waived in front of Mr. Thaher and eventually used to stab Mr. Thaher. [ 7 ] Mr. Thaher’s wound in his hand was a very deep cut requiring stitches. [ 8 ] Mr. Thaher’s wound to his abdomen was very serious. It penetrated his costal margin to his ribs and cut his diaphragm. It was described as his inner gut material protruding through the wound. [ 9 ] The medical evidence established that the knife was twisted while in the abdomen.

However, I am not persuaded that the evidence establishes beyond a reasonable doubt that this twisting of the knife was intentional by Mr. Gajraj to inflict more harm on Mr. Thaher or unfortunately occurred during the struggle between the two persons. Regardless, the injury was exacerbated. [ 10 ] Mr. Thaher required stitches to his hand and to his abdomen. A drain tube form his abdomen was required for a day. Circumstances of the offender [ 11 ] Mr. Gajraj is a first time offender. He is single. [ 12 ] He was born in Guyana and arrived in Canada in November 2006 with his mother and brother.

He lives in Canada with his mother and brother. Both his mother and brother are supportive or Mr. Gajraj. His mother has been present during the trial. Mr. Gajraj also has the support of some friends who provided letters of support to the court. [ 13 ] Up until his arrest, Mr. Gajraj was employed as a machine operator and was described by his employer as being responsible and reliable. [ 14 ] Mr. Gajraj financially contributed to his mother's support and the acquisition of the mother's home. [ 15 ] Prior to his arrest, Mr.

Gajraj had also attempted to upgrade his language skills. [ 16 ] The Pre-Sentence Report was extremely positive. [ 17 ] Subsequent to this offence and while on bail for this offence, Mr. Gajraj was involved in another incident where he eventually pleaded guilty to accessory after the fact manslaughter and received three years. I raise this as it becomes significant to the credit for pre-sentence custody. [ 18 ] Both counsel agree that Mr. Gajraj has 53 days of pre-sentence custody as of March 5, 2013. Impact on the Victim and/or Community [ 19 ] A victim impact statement was filed by Mr. Thaher’s parents.

This incident has had a significant impact on their son’s life. [ 20 ] Mr. Thaher has subsequently suffered some medical or psychological issues, which his parents attribute to this incident. However, the evidence does not establish beyond a reasonable doubt that Mr. Thaher’s subsequent condition arose due to the incident. LEGAL PARAMETERS [ 21 ] Pursuant to s. 268(2), a person convicted of aggravated assault may be sentence up to 14 years imprisonment.

POSITIONS OF CROWN AND DEFENCE [ 22 ] The Crown submits the appropriate range is a period of incarceration of 2-3 years less pre-sentence custody. [ 23 ] The Defence submits that an appropriate range of sentence is 1-2 years less a day. [ 24 ] The Crown also seeks a DNA order and a S.109 lifetime ban on weapons. The Defence does not oppose these ancillary orders.

CASE LAW [25] A thorough review of sentences for aggravated assaults with a knife during a consensual fight was done by Justice Code inR. v. Tourville, 2011 ONSC 1677: [27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault.That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose awide range of sentences. At the bottom end is an exceptional case like R. v. Peters (2010), 2010 ONCA 30 , 250 C.C.C. (3d)277 (Ont.

C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravatedassault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar roomdispute, causing serious facial lacerations to the victim. The “Gladue report” disclosed a very difficult upbringing in a violent andabusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making realprogress in counseling for her substance abuse problems.

Some of these features are not dissimilar to the case at bar. [28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less aday. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where theaccused has resorted to excessive force. See: R. v. Chickekoo (2008), 79 W.C.B. (2d) 66 (Ont. C.A.); R. v. Moreira, (ON SC), [2006] O.J. No. 1248 (S.C.J.); R. v. Basilio (2003), (ON CA), 175 C.C.C. (3d) 440 (Ont.

C.A.). [29] All three of the above cases were arguably worse offences or worse offenders than the case at bar. In Chickekoo, supra, theAboriginal accused came from a similar background to Mr. Tourville but had a prior criminal record, including a conviction for assault.She caused “severe, life-threatening and permanently disfiguring” injuries to the head and face of the victim as a result of assaults with abroken beer bottle during a fight. In Moreira, supra, the accused was the aggressor who followed the victim on a public street inToronto, provoking a consent fight.

During the fight, the accused pulled out a knife and slashed the victim. He was in possession of theconcealed knife for the dangerous purpose of using it in a fight and he was convicted of these further possessory offences, in addition toaggravated assault. He was a nineteen year old first offender at the time of the offences but had gone on to commit a number of furtheroffences while on bail for which he received jail sentences.

In Basilio, supra, as in Moreira, the accused was convicted of being inunlawful possession of a knife for a dangerous purpose, in addition to aggravated assault as a result of using the knife in a fight outside abar. He stabbed the victim from behind, causing “life-threatening injuries” to the chest, diaphragm and liver. The accused did not retreatfrom the fight but swaggered about afterwards waving the knife.

It should be noted that the Court of Appeal described the two years lessa day sentence in Basilio as “lenient” and the eighteen month sentence in Chickekooas “the lower end” of the appropriate range. [30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involverecidivists, with serious prior criminal records, or they involve “unprovoked” or “premeditated” assaults with no suggestion of anyelements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J.

No. 1033 (C.A.); R. v.Vickerson (2005), (ON CA), 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A). [26] In the circumstances of Tourville, supra including the fact the accused was aboriginal, Justice Code sentenced the accusedto 21 months incarceration. [27] In R. v. Haly, 2012 ONSC 2302, Justice MacDonnell sentenced the accused to 36 months for an unprovoked attack with aknife. [28] In R. v.

Charles, 2011 ONSC 3034, Justice Allen sentenced the accused to 18 months for a violent, unexpected knife attack. [29] As can be seen from the cases, the range is very broad for these types of offences and where a fit sentence falls within thisrange is highly dependent on all the circumstances. MITIGATING AND AGGRAVATING FACTORS [30] The following are the aggravating factors;

a) The use of a weapon in a consensual fist fight;

b) The fight took place on a high school property late at night; and

c) The severity of the wound to Mr. Thaher. [31] The following mitigating factors are applicable:

a) No prior record;

b) Mr. Gajraj is youthful;

c) He has a supportive family and friends;

d) Up until this incident, Mr. Gajraj appeared to be a productive member of society with full time employment and seeking educationalupgrading;

e) The incident initially started as a consensual fight; and

f) Mr. Gajraj is remorseful for the injury he caused Mr. Thaher with the knife. PRINCIPLES OF SENTENCING [32]

Section 718 of the Criminal Code sets out the purpose and principles of sentencing. It provides: The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. [33]

Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility ofthe offender. [34] How the above principles of sentencing are to be applied was described by the Supreme Court of Canada in R. v.Nasogaluak, 2010 SCC 6 at paras. 42 and 43: For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and thegravity of the offence. In this sense, the principle serves a limiting or restraining function.

However, the rights-based, protective angle ofproportionality is counter-balanced by its alignment with the “just deserts” philosophy of sentencing, which seeks to ensure thatoffenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and theharm they caused (R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, at para. 81; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at pp. 533-34, per Wilson J., concurring). Understood in this latter sense, sentencing is a form of judicialand social censure (J. V. Roberts and D. P.

Cole, “Introduction to Sentencing and Parole”, in Roberts and Cole, eds., Making Sense ofSentencing (1999), 3, at p. 10). Whatever the rationale for proportionality, however, the degree of censure required to express society’scondemnation of the offence is always limited by the principle that an offender’s sentence must be equivalent to his or her moralculpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against theoffence and punishes the offender no more than is necessary.

The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is,subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in amanner that best reflects the circumstances of the case (R. v. Lyons, (SCC), [1987] 2 S.C.R. 309; M. (C.A.); R. v.Hamilton, (2004), (ON CA), 72 O.R. (3d) 1 (C.A.)).

No one sentencing objective trumps the others and it falls to thesentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relativeimportance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similaroffences.

The judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factorsensures that each case is decided on its facts, subject to the overarching guidelines and principles in the Code and in the case law. [35] In this case, there is no issue that denunciation and deterrence are the primary sentencing principles. [36] Mr. Gajraj’s young age and first time offender which attracts judicial restraint from imposing a lengthy period ofincarceration, particularly, where there is a real prospect of rehabilitation.

However, it is necessary to keep in mind that, in this case, Mr.Gajraj has already served a 3 year sentence. REASONS [37] In my view, the range of sentences in circumstances, where a stabbing occurs during a consensual fist fight, such as this, is inthe range of 18 months to 2 ½ years and perhaps as high as 3 years. The Court of Appeal's comments in Basilios and Chickakooas, suprasuggest a somewhat higher range than set out in Tourville. [38] Weapons are a serious issue in today's society. A fit sentence should clearly denounce any use of weapons and deter others

from using weapons. [39] Taking into account the circumstances above, I am not persuaded that Mr. Gajraj is at either end of the range. Given that thiswas a consensual fist fight with a number of friends around. There had been some prior drinking by both Mr. Thaher and Mr. Gajrajleading up to the fight. It went horribly wrong when Mr. Gajraj, for reasons known only to him, pulled this knife out. Mr. Gajraj swungthe knife around and eventually stabbed Mr. Thaher. The crowd, including Mr. Gajraj, dispersed quickly. [40] The fight initially was only using fists. However, it went horribly wrong when Mr.

Gajraj pulled out the knife. Unlike manycases, there was no prior stalking, no seeking to provoke a fight, no continued viciousness to use the knife repeatedly and cause furtherharm. Nevertheless, this was a very serious crime of violence by Mr. Gajraj to pull out and use the knife on Mr. Thaher. [41] The Defence submits that Mr. Gajraj's deportation is a factor to be considered. The Defence advises that Mr. Gajraj hasreceived a deportation order based on the conviction and sentence in the accessory after the fact manslaughter charge. Defence counseladvises that Mr. Gajraj will not oppose the deportation order.

I am not persuaded that Mr. Gajraj should receive a reduced sentencesimply because he will be deported upon serving the sentence. Recent Court of Appeal decisions make it clear that the sentenceimposed should be within the appropriate range given the circumstances. I am not persuaded that Mr. Gajraj's deportation as a result ofthe other conviction is a factor in this case. [42] In my view, 2 years less a day is a fit sentence in these circumstances. [43] The Defence seeks pre-sentence custody credit in the amount of 53 (now 55) days times two. In other words, a two for onecredit for time served.

This charge was laid before the Truth in Sentencing Act came into force. As a result, I agree that two for one ispotentially available to Mr. Gajraj without consideration to the restrictions set out in the Truth in Sentencing Act. [44] But the two for one credit is not automatically applied just before the charge preceded the Truth in Sentencing Act. [45] A very useful description of how pre-sentence custody was dealt with pre- Truth in Sentencing Act was described in R. v.Rezaie, (ON CA), [1996] O.J. No. 4468 (Ont. C.A.), where Laskin J.A. wrote at paras. 24 through 26 that: 24.

Section 721(3) of the Criminal Code provides:In determining the sentence to be imposed on aperson convicted of an offence, a justice, provincialcourt judge or judge may take into account anytime spent in custody by the person as a result ofthe offence.25. Although this

section is discretionary, not mandatory, in myview a sentencing judge should ordinarily give credit for pre-trialcustody. At least a judge should not deny credit without goodreason. To do so offends one's sense of fairness. Incarceration atany stage of the criminal process is a denial of an accused'sliberty. Moreover, in two respects, pre-trial custody is even moreonerous than post-sentencing custody. First, other than for asentence of life imprisonment, legislative provisions for paroleeligibility and statutory release do not take into account time spentin custody before trial (or before sentencing).

Second, localdetention centres ordinarily do not provide educational, retrainingor rehabilitation programs to an accused in custody awaiting trial.For these reasons, pre-trial custody is commonly referred to as"dead time", and trial judges, in deciding on an appropriatesentence, frequently give credit for double the time an accusedhas served.26 Still, this court and other provincial appellate courts haverejected a mathematical formula for crediting pre-trial custody,instead insisting that the amount of time to be credited should bedetermined on a case by case basis ... (emphasis added) [46] While many of the reasons for enhanced credit continue to exist, Mr.

Gajraj now remains in custody after January 11, 2013(the date when his incarceration on the accessory after the fact manslaughter sentence was served) but he now finds himself, not anaccused prior to trial serving time, but rather having been found guilty of the offence in December 2012. Equally important, Mr. Gajrajhad received bail on these charges and only came to be re-arrested on the accessory after the fact manslaughter charges. But for hisconviction and serving of his sentence on the manslaughter charges, he would not have been in custody pending sentencing.

These arerelevant factors to consider in determining the pre-sentence custody credit. See R. v. Codner, 2013 ONCA 138 [47] In these circumstances, and where the Defence has not provided any other evidence for enhanced credit, I exercise mydiscretion and award Mr. Gajraj 1.5 credit for the 55 days. The credit would be approximately 83 days. ANCILLARY ORDERS

[ 48 ] There shall be a DNA order under s. 487.04 of the Criminal Code . [ 49 ] There shall be a lifetime firearm prohibition under s. 109 of the Criminal Code . FINAL DECISION [ 50 ] Mr. Gajraj is sentenced as follows:

a) After receiving credit for pre-sentence custody: 21 months;

b) A DNA order;

c) A lifetime weapon prohibition order; and

d) Probation for two years upon his release on the statutory conditions and that Mr. Gajraj refrain from any contact with Mr. Thaher or his family or attending within 200 meters of their home. ___________________________ L. Ricchetti J. Released: March 8, 2013 CITATION : R. v. Gajraj, 2013 ONSC 1401 COURT FILE NO.: 897/11 DATE: 2013-03-08

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and – Deodat GAJRAJ Defendant REASONS FOR SENTENCE L. Ricchetti J. Released: March 8, 2013