) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 298

CITATION : R. v. Praljak, 2013 ONSC 298 COURT FILE NO.: 11-50000425 DATE: 20130114 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – MLADEN PRALJAK ) ) ) ) ) ) ) ) Cheryl Blondell and Michally Iny, for the Crown Douglas Holt and John Filiberto, for the Accused ) HEARD: November 30, 2012 REASONS FOR SENTENCE M. Dambrot J. : [ 1 ] Mladen Praljak was tried by me, with a jury, on an indictment alleging that he committed the first degree murder of his wife, Zdenka Praljak, on December 6, 2008. The jury found him guilty of second degree murder. I am now called upon to impose sentence.

The Homicide [ 2 ] The offender and the deceased were married for 32 years. In the spring of 2007, the offender commenced an extra-marital affair. He misled his lover into believing that his marriage was effectively over. The deceased learned of the offender’s infidelity in late October or early November 2008 and confronted the offender about it. The offender acknowledged his infidelity. From then on, his world began to unravel. Soon after, when she learned about his deception, the offender’s lover broke off the relationship.

Meanwhile, although the offender asserted that he wanted his marriage to continue, the deceased insisted on at least a temporary separation. A number of family meetings were held to attempt to resolve the situation, at which the offender was observed to be acting strangely. [ 3 ] On Friday, December 5, 2008, the offender spent the evening at a friend’s home. When the offender began feeling unwell, his friend called the deceased and asked her to pick him up.

Despite the fact that she wanted time away from the offender, the deceased agreed to pick him up. [ 4 ] At approximately 1:00 a.m. on December 6, 2008, the deceased’s mother, Mary Rendulic, who lived in an apartment one floor below her daughter and the deceased, heard them come into the home and proceed upstairs. She fell asleep sometime after 2:00 a.m. At about 5:00 a.m., she awoke to the sound of her daughter crying out for help. She ran upstairs and discovered her daughter lying on the floor in a pool of blood and saw the offender in the kitchen holding a large knife in his hand. Ms.

Rendulic asked the offender what he had done to her daughter. He replied, “What has she done to me?” Ms. Rendulic then ran back to her apartment and called the police. [ 5 ] At 5:03 a.m., an emergency radio call regarding a stabbing at the Praljak residence involving two “patients” was transmitted. Police officers and paramedics began arriving at the residence at 5:07 a.m. They discovered the deceased and the accused each lying in a pool of blood inside the residence, apparently in critical condition. They also observed blood splatter on the walls and blood on the furniture.

Some of the emergency personnel attended to the accused, who had obviously attempted to commit suicide after his encounter with Ms. Rendulic. There was a large knife with blood on it by his left hand. Other emergency personnel attended to the deceased, who was conscious but was in significant distress. She was bleeding profusely and moaning in pain. She had a large wound on her side under her arm, several large cuts to her face, cuts to her neck and cuts to her hands. The wound to her side was very large and deep, approximately three to four inches long. Fatty tissue and musculature were showing through.

One of the wounds to her face was a three to four inch deep laceration. One of the cuts to her neck was a deep two centimetre laceration. [ 6 ] Both the accused and the deceased were prepared for immediate transportation to Sunnybrook Hospital. The deceased arrived at the hospital at 5:47 a.m. and was brought to a trauma room. Before her death, the deceased told emergency personnel that “he”, obviously meaning the offender, had been acting paranoid, and that while she was lying on the couch in the living room, he had appeared over top of her with a knife and started stabbing her.

[7] Ms. Praljak was pronounced dead at 7:32 a.m. that same morning. The post mortem examination of her body confirmed thatshe had nine stab wounds to her body as well as nine defensive wounds to her hands, which is consistent with her efforts to stop herhusband from stabbing her. The lethal injury was a stab wound to the chest that penetrated her seventh rib and her lung. [8] Needless to say, while the offender succeeded in killing his wife, he failed in his attempt to kill himself. The Offender [9] Mr. Praljak is 56 years old. He was born in Yugoslavia and was the youngest of four brothers and one sister.

He grew up ona farm, but worked in construction in Yugoslavia as did his father. He immigrated to Canada in 1973, at the age of 17, and was the last ofhis siblings to do so. He came to Canada to make a better life. [10] He started off in Canada as a meat packer, and took courses in mathematics and English at night school. He married Ms.Praljak in 1976 and opened a flower shop. Later, he was involved in real estate. Ultimately, he became a construction contractor. [11] Mr. Praljak has no criminal record and no history of violence.

The Submissions of Counsel [12] The offender must, of course, be sentenced to life imprisonment. The only issue for me is whether the minimum period ofparole eligibility should be increased beyond the statutory ten years, and if so, to what. [13] In considering this question, I begin by noting the recommendations of the jury. Five jurors made no recommendation; tworecommended 10 years; two recommended 15 years; two recommended 20 years; and one recommended 25 years. [14] Crown counsel submitted that I should increase the minimum period to 18 years.

She said that the cases support a range, fordomestic homicides by offenders with no criminal record, of 12 to 17 years, but that the range is not a ceiling, and the circumstanceshere, including evidence of some elements of planning and deliberation, justify piercing the top of the range.

She placed particularemphasis on the brutality of the killing, which included repeated stab wounds and gratuitous violence; the fact that the deceased lived forseveral hours after this terrifying attack and endured tremendous pain and discomfort, all with the realization that she was dying at thehands of her husband; that the killing had a profound emotional impact on the family of the offender and deceased, particularly theirchildren, who have effectively lost both parents; and the absence of any indication of remorse. [15] Counsel for the offender submitted that the range of sentence for domestic homicides is 12 to 15 years, and that given Mr.Praljak’s history and prospects for rehabilitation, the appropriate period of parole eligibility is 10 to 12 years.

He argued that while thismurder was brutal, it was not savage, and denied that the evidence supports a finding of near premeditation. Analysis [16] In considering parole eligibility, I am mindful of the requirement in s. 745.4 of the Criminal Code that I have regard to thecharacter of the offender, the nature of the offence and the circumstances surrounding its commission. In addition, my approach to thisissue is informed by the decision of the Supreme Court of Canada in R. v. Shropshire, (SCC), [1995] 4 S.C.R. 227.

Atparas. 27 to 31, Iacobucci J. stated for the Court: 27 In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: asa general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that,according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released intothe general public assessed.

To this end, an extension of the period of parole ineligibility would not be "unusual", although it may wellbe that, in the median number of cases, a period of 10 years might still be awarded. 28 I am supported in this conclusion by a review of the legislative history, academic commentary, and judicial

interpretation of s. 744,and the sentencing scheme for second degree murder. 29

Section 742(

b) of the Code provides that a person sentenced to life imprisonment for second degree murder shall not be eligible forparole "until he has served at least ten years of his sentence or such greater number of years, not being more than twenty-five years, ashas been substituted therefore pursuant to

section 744". In permitting a sliding scale of parole ineligibility, Parliament intended torecognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees ofmoral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10years and a maximum of 25, the latter being equal to that prescribed for first degree murder.

The mere fact that the median periodgravitates towards the 10-year minimum does not, ipso facto, mean that any other period of time is "unusual". 30 I should pause to repeat that in the instant appeal we are concerned with a period of parole ineligibility for second degree murder of12 years, this being only two years more than the minimum. 31 If the objective of s. 744 is to give the trial judge an element of discretion in sentencing to reflect the fact that within second degreemurder there is both a range of seriousness and varying degrees of moral culpability, then it is incorrect to start from the proposition thatthe sentence must be the statutory minimum unless there are unusual circumstances.

As discussed supra, a preferable approach would beto view the 10-year period as a minimum contingent on what the "judge deems fit in the circumstances", the content of this "fitness"being informed by the criteria listed in s. 744. As held in other Canadian jurisdictions, the power to extend the period of paroleineligibility need not be sparingly used. [17] Undoubtedly, it has become commonplace to increase the minimum period of parole eligibility in domestic homicide casesbeyond the ten year level, to reflect the seriousness of the breach of trust in such cases.

As Laskin J.A. stated for the majority in R. v.McKnight (1999), (ON CA), 135 C.C.C. (3d) 41, at para. 48, “No two cases are the same but similar cases from this

province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.” In this brief passage, Laskin J.A. both announced a principle of sentence and established a range. [ 18 ] However, in subsequent cases, the ceiling of the range established by McKnight has been breached many times. It is true, of course, that ranges are not cast in stone, that they are guidelines and not hard and fast rules, and that sentencing remains an individualized process. But the ceiling in McKnight has been breached so often that, as recognized in R. v.

Czibulka , 2011 ONCA 82 , 267 C.C.C. (3d) 276, the range must now be accepted to be 12 to 17 years. [ 19 ] In this case, I agree with Crown counsel that the brutality of the killing, the gratuitous violence, the fact that the deceased lived for several hours after this terrifying attack and endured tremendous pain and discomfort, and the absence of any indication of remorse takes this case away from the bottom end of the range, despite Mr. Praljak’s history and prospects for rehabilitation. I

part company with Crown counsel, however, when she says that there was evidence of some elements of planning and deliberation in this case. I am satisfied, and take into account, that killing his wife was on the offender’s mind for some time prior to the murder. But I would go no further. Perhaps for that reason, I do not agree that this is a case where the sentence should approach, far less breach, the top of the range. Disposition [ 20 ] In my view, the appropriate sentence in this case is life imprisonment, with a minimum period of parole ineligibility of 15 years.

In addition, I make a prohibition order pursuant to s. 109 of the Criminal Code for life, and a DNA order pursuant to s. 487.051. M. Dambrot J. Released: January 14, 2013 CITATION : R. v. Praljak, 2013 ONSC 298 COURT FILE NO.: 11-50000425 DATE: 20130114

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N : HER MAJESTY THE QUEEN – and – MLADEN PRALJAK REASONS FOR SENTENCE M. DAMBROT J. RELEASED: January 14, 2013