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R v Ghiorghita – 2nd Degree Murder Sentencing – Parole Eligibility

R v Ghiorghita -2017 BCSC 1636 – Parole Eligibility

Citation:
R. v. Ghiorghita,
2017 BCSC 1636
IN THE SUPREME COURT OF BRITISH COLUMBIA

Counsel for the Crown:
A.M. Blunt D.T.R. Loucks

Counsel for the Accused:

L.D. Myers, Q.C. Z. Myers

Vancouver, B.C. August 24, 2017

Before: The Honourable Mr. Justice Pearlman

Oral Reasons for Sentence

Date: 20170824 Docket: X078540-2 Registry: New Westminster

[1] THE COURT: On July 21, 2017, I convicted Irinel Catalin Ghiorghita of the second degree murder of his wife, Andra Ghiorghita. Under s. 235(1) of the Criminal Code, R.S.C. 1985, c. 46, I must impose a sentence of life imprisonment. The issue I must determine today is how many years Mr. Ghiorghita should serve before he is eligible to apply for parole.

[2] Section 745(c) of the Criminal Code provides for a range between a minimum of 10 years and a maximum of 25 years’ parole ineligibility. Under s. 745.4, the factors the court must consider in determining whether or not to fix a period of parole ineligibility extending beyond 10 years are: (1) the character of the offender; (2) the nature of the offence; and (3) circumstances surrounding its commission.

[3] Here, where the trial was by judge alone, there is no jury recommendation.

[4] Each exercise of the court’s discretion under s. 745(c) is a fact specific
exercise. The leading authority on what is now s. 745.4 of the Criminal Code is the decision of the Supreme Court of Canada in R. v. Shropshire, [1995] 4 S.C.R. 227. At para. 27, the court stated the standard in these terms:
. . . as a 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 into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[5] The court must also have regard to the purposes and principles of sentencing set out in ss. 718, 718.1, and 718.2 of the Criminal Code.

[6] Those principles were concisely stated by Justice Fisher in R. v. Yliruusi, 2011 BCSC 268 at paras. 6 to 8, where the court said:

[6] In addition to these factors, I must have regard to the sentencing principles in ss. 718, 718.1, and 718.2 of the Criminal Code. Section 718 requires that just sanctions be imposed that have one or more of the following objectives:
(a) to denounce unlawful conduct;
to deter the offender and other persons from committing offences;
to separate offenders from society, where necessary; to assist in rehabilitating offenders;
to provide reparations for harm done to victims or to the community; and
to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[7] Section 718.1 provides that a sentence should be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[8] Section 718.2(a) requires me to consider that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. While no two cases of second degree murder are identical, of course, I must be guided by
s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[7] Justice Fisher went on to review and summarize the authorities on the application of s. 718 to the offence of second degree murder at para. 13:

[13] The authorities establish that the principles of denunciation and general deterrence are paramount in a case like this. The principle of retribution is also a factor to consider in conjunction with the other sentencing objectives. As the Supreme Court of Canada said in the case of R. v. M. (C.A.) . . . retribution is an accepted and important principle of sentencing. Retribution, which is neither vengeance nor denunciation, requires a sentence to “properly reflect the moral blameworthiness of the particular offender”.

[8] Here, as I will shortly explain in more detail, the objective of rehabilitation is also a relevant factor.

[9] The Crown’s position is that the court should order a period of parole ineligibility of 14 years. The Crown advances that position on grounds that the nature of the offence was brutal and that there are significant aggravating factors. The defence submits that a fit sentence in this case would be 10 years of parole ineligibility. In making that submission, the defence emphasizes that this exercise is a highly individualized process, that the psychiatric evidence adduced at trial
established that the accused does not suffer from any form of psychotic disorder. Further, the defence points out that Mr. Ghiorghita has led a highly productive life and has no history of violence before this offence.

[10] The defence also emphasizes that at the time of the offence, and indeed for some weeks preceding the offence, Mr. Ghiorghita was in a highly distressed state as a result of the breakdown of his marriage.

[11] The defence also submits that Mr. Ghiorghita will take advantage of any counselling, treatment, and rehabilitative programs that are available while he is in custody, and says that he presents a low risk of reoffending.

[12] I turn now to the circumstances and character of the offender.

[13] Mr. Ghiorghita, who is now 41 years old, was 38 at the time of the offence. He
had immigrated to Canada from Romania with his wife and their son, Matei, in 2007. Mr. Ghiorghita is well educated and had demonstrated, both in Romania and following his immigration to Canada, that he is a highly skilled and productive worker.

[14] There is no question that Mr. Ghiorghita worked hard to support his family. Furthermore, he was, and I am sure remains, devoted to his son. There is no history of drug or alcohol abuse. Very shortly after the offence, Mr. Ghiorghita turned himself in to the police and told Constable Uppal, the first officer who interviewed him, that he had shot his wife.

[15] The psychiatric evidence adduced at trial established that Mr. Ghiorghita had a personality trait of over-controlled anger and that he also had obsessive personality traits and traits of dependency and avoidance related to his marriage. Both the defence and Crown psychiatrists agreed that Mr. Ghiorghita does not suffer from any psychotic mental disorder.

[16] In the weeks leading up to the offence, Mr. Ghiorghita experienced humiliation, distress, anxiety, and insomnia, as his marriage unravelled. He felt betrayed by his wife’s infidelity and was betrayed again when, after Mr. Ghiorghita and Andra had sent Matei to Romania to stay with Mr. Ghiorghita’s parents, Andra Ghiorghita announced that she intended to continue her affair.

[17] As I discussed in my reasons for judgment indexed as R. v. Ghiorghita, 2017 BCSC 1469, that sense of betrayal and Mr. Ghiorghita’s distress were elevated when he learned that Andra Ghiorghita intended to take Matei and to live with her new partner and Matei in North Vancouver.

[18] In his psychiatric report, Dr. Lohrasbe, referring to the period of time following Mr. Ghiorghita’s discovery of his wife’s affair with Mr. Esmail, observed that with this turn of events, Mr. Ghiorghita’s anxiety levels became intrusive and his insomnia worsened.

[19] Dr. Lohrasbe went on to comment that Mr. Ghiorghita was in a state of extreme distress and confused about how to proceed. At page 11 of his report, he says this, referring to Mr. Ghiorghita:
He was not sure about the reality of things, of what was going on between Andra and her lover, and what her intentions were for the future. She had lied to him about her affairs, she had lied to him about wanting to work at their relationship, and now he did not know what her plans were for their marriage and for Matei.

[20] Later in his report, Dr. Lohrasbe commented that, since his arrest,
Mr. Ghiorghita has been trying to make sense of what he did and that he has difficulty reconciling who he is with what he did.

[21] At the time Dr. Lohrasbe prepared his report, Mr. Ghiorghita was still struggling to understand his actions. He was also extremely distraught about Matei’s situation.
R. v. Ghiorghita Page 6

[22] Dr. Sheppard, a psychologist, assessed Mr. Ghiorghita’s personality. He reported that Mr. Ghiorghita’s profile suggested that he has a strong need to be seen by others in a positive light, that he rigidly complies with social convention, and that his profile suggests that he responds to real or imagined disapproval with significant anxiety and sadness, which he is motivated to avoid.

[23] Dr. Sheppard went on to say that Mr. Ghiorghita appears to do this by submitting to figures he perceives to be in authority, and by downplaying competitiveness and assertiveness. Mr. Ghiorghita’s profile suggests that he sacrifices his own desires to achieve peace or gain respect or approval from others whose opinions matter to him.

[24] As defence counsel submitted, these observations suggest that
Mr. Ghiorghita will comply with the counselling treatment regime and that he is also likely to comply with monitoring following his release on parole.

[25] Mr. Ghiorghita has been detained since July 15, 2014. The report or series of reports from the North Fraser Pretrial Centre, entered as Exhibit 2 on the sentencing hearing, describe Mr. Ghiorghita as a well-mannered inmate, an exceptional worker, an inmate who gets on well with staff and his peers. I am satisfied that there is a high probability that he will participate in any programs available to him in prison and benefit from any treatment or counselling program in which he participates.

[26] These factors bode well for his rehabilitation.

[27] I turn now to the nature of the offence. As I have already noted, the offence
occurred during the breakdown of Mr. Ghiorghita’s marriage. The offence was brutal, and the fact that the victim was Mr. Ghiorghita’s spouse is an aggravating factor. The offence was driven by anger.
[28] The circumstances surrounding the commission of the offence bear some scrutiny. The Crown contends that there were elements of planning and deliberation here. There is no question that the offence certainly involved deliberation. I say that because Mr. Ghiorghita took a series of steps involving unlocking the gun cabinet,retrieving the case in which his handgun was stored, unlocking that case, taking out the handgun, finding the ammunition, loading the weapon, then proceeding upstairs and discharging it eight times at close range.

[29] However, this was not an offence which involved any elaborate planning.

[30] The offence was particularly violent, in that Mr. Ghiorghita discharged the full
magazine of his handgun, and all eight rounds struck the victim in the area of her torso or abdomen. Andra Ghiorghita was shot in her bedroom while lying on her bed. As the Crown submits, the offence occurred in a place where she had an expectation of safety.

[31] The Crown also submits that another significant and aggravating circumstance is that Mr. Ghiorghita did nothing to seek medical assistance for Andra, but rather chose to leave the home without calling for an ambulance or taking other steps to procure medical help for her.

[32] The Crown says that the court should infer from this that Mr. Ghiorghita wanted Andra to die and deliberately refrained from seeking assistance in order to further that end.
[33] In my reasons for judgment, I found that when Mr. Ghiorghita was initially interviewed by Constable Uppal on the morning of July 15, 2014, he was anxious and distressed. He told Constable Uppal that he thought he had shot Andra once. Mr. Ghiorghita said that he did not consider calling an ambulance.

[34] In my view, this was a case where the offender was confused and highly distressed immediately following the offence and that he did not think about calling for medical assistance, rather than a case where an offender made a calculated choice to leave his victim to bleed to death.

[35] Another circumstance which I should mention is that very shortly after the offence, Mr. Ghiorghita did go to the police, told Constable Uppal that he had done something bad and that he had shot his wife. This was not a case where the offender attempted to avoid pursuit or apprehension.

[36] The Crown has referred to four decisions of the Court of Appeal of British Columbia where, on sentencing an offender found guilty of second degree murder of his or her spouse, the court has found that fit periods of parole ineligibility ranged from 13 months to 19 months, depending on the particular circumstances of each case. Those authorities are R. v. Tan, [1996] B.C.J. No. 767 (B.C.C.A.), R. v. Purdy, 2012 BCCA 272, R. v. O.V., 2016 BCCA 454 and R. v. Daigle, 2017 BCCA 86.

[37] In Tan, the period of parole ineligibility was 13 years. There, the offender had directed violence against the victim, both before and during the offence. The victim was the offender’s wife. The court characterized the offence as the brutal murder of a helpless woman. An additional aggravating factor in Tan was that the offender set fire to the van containing the body of his wife.

[38] In R. v. Purdy, the court upheld a period of parole ineligibility of 19 years. Purdy was a case involving exceptional aggravating circumstances. The accused had attacked his estranged wife with a knife, stabbing her 21 times. He had also assaulted the victim’s partner. At the time of the offence, he was under a restraining order. Another aggravating factor was that for months before the offence, he had harassed his victim. Further, following the offence, he attempted to blame the murder on another individual.

[39] In R. v. O.V., the court upheld a 15 year period of parole ineligibility. There, the offender had stabbed his wife 15 times. An aggravating factor not present in the case at bar was that the offence was committed in the presence of the offender’s children. The offender also suffered from a mental disorder and had poor prospects of rehabilitation. There was also a finding that if his mental condition was not treated, he would pose a danger in the future.

[40] Finally, in R. v. Daigle, the period of parole ineligibility was 15 years. The trial judge, in fixing that period of parole ineligibility, had found that the offence involved elements of planning and deliberation. That finding was overturned on appeal, but nonetheless the 15-year period of ineligibility was upheld. The offender had committed the crime at a time when she was under a no-contact order. The offender had consumed prescription drugs, alcohol, and cocaine before stabbing the victim 12 times. The assault was committed in the victim’s own home.

[41] At paras. 36 and 37 of Daigle, the Court of Appeal said this:

[36] In this case, even with the element of planning and pre-meditation removed from the equation, the aggravating factors are significant. As noted above, the domestic context is prescribed by statute as an aggravating factor, Ms. Daigle was in violation of her recognizance when she entered
Mr. Markus’s home, she failed to obtain any medical aid and allowed him to bleed to death, and she removed the only hope he had of obtaining aid when she took his cell phone.

[37] There is no question that elements of planning and pre-meditation are aggravating factors that will increase a period of parole ineligibility. However, had the judge placed significant weight on those factors, in my view, the fit sentence would have been significantly higher. The sentence imposed was within the appropriate range for a murder committed in a domestic context, considering all of the circumstances, even absent the aggravating factors of planning and deliberation.

[42] The defence referred to a series of cases where periods of parole ineligibility for second degree murder offences were
fixed at 10 years or, in one case, at 12 years. The cases cited by the defence were R. v. Reeves, 2011 BCSC 821, R. v. Reierson, 2007 BCSC 541, R. v. Yliruusi, 2011 BCSC 268, R. v. Tan, 2011 BCSC 595 and R. v. Toor, 2013 BCSC 1920.

[43] I note that none of these cases involved the murder of a spouse. In Reierson, the court set the period of ineligibility at 10 years. There the offender had shot a defenceless person at close range. In fixing the period of ineligibility at the minimum, the court took into account the fact that the offender’s prospects of rehabilitation were promising.

[44] Tan involved the unprovoked stabbing of a 50-year-old pawn shop owner multiple times. The offender had shown some remorse and again the court set the period of parole ineligibility at 10 years.

[45] The mitigating factors here are that Mr. Ghiorghita has no prior criminal record and no prior history of violence of any nature. As I have noted, he also turned himself in to the police.

[46] The aggravating factors are that Mr. Ghiorghita murdered his wife and the mother of his child, and that the offence took place in the victim’s residence, and indeed in her own bedroom.

[47] The offence was brutal and undoubtedly has had an impact on Matei, who has remained in Romania since the summer of 2014.

[48] As I have found, there was an element of deliberation, but no real premeditated planning.

[49] The Crown has filed a victim impact statement from Andra Ghiorghita’s sister, Manuela Vladila. She expresses the emotional impact that she and her family have sustained as a result of the offence.

[50] The assessment of a fit period of parole ineligibility is a highly fact specific exercise. The brutality of the violence inflicted and the domestic nature of the offence call for denunciation and deterrence. On the other side of the equation,
Mr. Ghiorghita’s prospects for rehabilitation are, as his counsel described, promising.

[51] The fact that Mr. Ghiorghita did not call for an ambulance after the offence is troubling but, as I have found, this was not a case where the offender made a calculated choice to abandon his victim. I also take into account the absence of any prior history of violence, the fact that Mr. Ghiorghita has demonstrated a high degree of cooperation during his time in pretrial detention and, in my view, his presentation of a low risk of reoffending.
R. v. Ghiorghita Page 11

[52] Taking all of these factors into account, and having regard to the object and principles of sentencing and the authorities cited by counsel, I find that the fit period for parole ineligibility in this case is 10 years.

[53] Mr. Ghiorghita, would you please stand.

[54] Mr. Ghiorghita, I sentence you to life imprisonment for the second degree
murder of Andra Ghiorghita. I have determined that the principles of sentencing will be met by a period of parole ineligibility of 10 years.

[55] Pursuant to s. 109(1)(a) of the Criminal Code, there will be a mandatory lifetime firearms, ammunition, and weapons prohibition.

[56] Pursuant to s. 491 of the Criminal Code, there will be an order for forfeiture of the 9mm Jackal handgun.

[57] Pursuant to s. 487.051 of the Criminal Code, there will be an order in Form 5.03, authorizing the taking from Mr. Ghiorghita for the purposes of forensic DNA analysis any number of samples of one or more bodily substances that are reasonably required for that purpose by means of the procedures described in
s. 487.06(1) of the Criminal Code.

[58] There will also be an order imposing the victim fine surcharge.
“Pearlman J.”

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