IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           On February 25, 2020, following a trial, I found Mr. Miletic guilty of Assault Causing Bodily Harm, the result of a “sucker punch” that occurred during a soccer game (better known worldwide as “football”). It broke the victim’s orbital bone and caused him negative longer-term effects.

[2]           Mr. Miletic has no criminal record and is supported by community members who have not seen that sort of behavior by him in the past.

[3]           The defence says the court should consider Mr. Miletic’s conduct as a brief impulsive act in the context of the overall circumstances and that it would not be contrary to the public interest to impose a conditional discharge. They rely in large part on the sentencing decisions imposing conditional discharges for significant assaults in other sports-related cases, mostly involving professional hockey players.

[4]           The Crown seeks a suspended sentence and 18 months of probation, with 50 community service work hours. They say that there is a distinction in those defence cases, in that the participants in a professional hockey context are expecting to have a certain level of violence perpetrated; whereas this was an over (age) 35 “recreational” league without such expectations. Therefore, they say there is a greater need to deter and denunciate the behavior in this context and a conditional discharge will fail to do so.

[5]           The Crown also distinguishes most of the defence cases as involving acceptance of responsibility and expressions of remorse by the offenders, something absent in this case.

[6]           The issue that the contrasting positions gives rise to is: Whether the lower the level of expectation of violence by the participants in a sports context, the greater there is a need to apply the principles of deterrence and denunciation when violence occurs.

[7]           I issued my Reasons for Decision on February 25, 2020, which provides more detail regarding the circumstances of the offence.

[8]           Briefly, this was an over 35 soccer game between two teams that had some history of aggressive conduct towards one another. This game was no exception. One of the players from the opposing team (not the victim of the assault) was described as particularly aggressive. By the end, Mr. Miletic’s team had received a red card (which results in expulsion) and a yellow card (a warning), while the other team received four yellow cards and a red card.

[9]           Mr. Miletic, who had a work-related back injury that had kept him out of soccer for a long period of time, sat on the sidelines watching. He came into the game part way through the second half. Soon after, a player on the opposing team was fouled by a member of Mr. Miletic’s team and that resulted in a gathering of players with some minor jostling, referred to as a “scrum”. Mr. Miletic was in this scrum and was pushed from behind by someone, which he testified caused him to believe he may have re-injured his back. It was as this scrum was starting to disperse that Mr. Miletic came from behind and the side of the victim, a member of the opposing team picked seemingly at random, and punched him in the face.

[10]        The referee, who had backed out of the scrum in order to observe the players’ conduct, saw Mr. Miletic punch the victim. He gave Mr. Miletic a red card, resulting in his expulsion. Mr. Miletic left the field and remained in the stands for the remaining 20 minutes of the game. He faced some additional penalty from the league, which was not entirely clear.

[11]        Mr. Miletic is 44 years old and has no criminal record. He came to Canada from Croatia, via Germany as a refugee, in 1997. He has a wife and two young children. He has been steadily employed. The letters of support filed at the time of sentencing suggest he has otherwise been an upstanding member of society. He is described as a strong family man, a good worker, active in his church, and to not having shown any propensity towards violence on or off the soccer field. 

[12]        Sentencing is an individualized process.

[13]        The court must consider the circumstances of the offence, the circumstances of the offender, and apply the principles of sentencing as set out in s. 718 to 718.3 of the Criminal Code and the common law.

[14]        The fundamental purpose of sentencing is to protect and contribute to a just, peaceful and safe society by imposing just sanctions with one or more of the following objectives: denunciation, deterrence, separation of offenders where necessary, rehabilitation, reparation, and promotion of a sense of responsibility and acknowledgement of the harm done by the offender. (s. 718)

[15]        The fundamental principle of sentencing is that of proportionality of the sentence to the gravity of the offence and degree of responsibility of the offender. (s. 718.1)

[16]        The other sentencing principles which the court must consider includes the increase or reduction of the sentence based on aggravating and mitigating circumstances relating to the offence or offender, as well as the principles of parity, totality, and restraint. (s. 718.2)

[17]        I find aggravating the nature of the assault, not because it occurred in the context of an amateur soccer game, but because it was both a randomly-chosen victim and that it was a blind-sided punch. Had the punch occurred in the context of jostling with the victim face to face in the scrum, or if the victim had specifically provoked Mr. Miletic, the conduct would be less egregious.

[18]        Also aggravating is the affect upon the victim, including the post-concussion symptoms, which continued for an extended period, interfering with his personal life and reducing his income.

[19]        The aggressiveness of the opposing team, and the frustration of waiting on the sidelines, together with the push from behind and perceived re-injury during the scrum, may have contributed to Mr. Miletic’s uncharacteristic action on this day. I find that it was not a pre-planned act on his part. It was sudden and reactive.

[20]        Mr. Miletic’s lack of a criminal record and his otherwise long-term positive conduct in the community are certainly mitigating.

[21]        The Defence relies on assaults in the professional hockey context, that being R. v. Bertuzzi 2004 BCPC 472 (“Bertuzzi”) and R. v. McSorley, 2000 BCPC 117 (“McSorley”).

[22]        Mr. Bertuzzi, in retaliation for an incident in a game some weeks earlier and perhaps at the urging of his coach, sought out the opposing player, who was disinterested in engaging in a fight, and then struck him from a prone position. The victim in Bertuzzi suffered very significant injuries. Mr. Bertuzzi received a lengthy suspension with significant financial loss. His case received much notoriety. He pled guilty, expressed remorse and was granted a conditional discharge.

[23]        Mr. McSorley, acting as an “enforcer” (a player who often engages in fighting) and also at the apparent urging of his coach to fight another player, whose role was similar, impulsively struck that player in the head with his stick. That case also received much notoriety. Mr. McSorley also suffered a significant financial loss. Although Mr. McSorley did not plead guilty, he regretted the incident and expressed remorse. He was also granted a conditional discharge.

[24]        The defence also cite two assaults by police, that being R. v. Sweet, 2007 BCPC 240 and R. v Shipley and Wong, 2015 BCPC 276, both of which received significant publicity and included other disciplinary processes for the police officers. They were granted conditional discharges.

[25]        The Crown rely on other assault cases in the amateur sporting context, including R. Perry, 2011 ABPC 221 (“Perry”) and R. v. Dixon, 2011 ABQB 255 (“Dixon”), but in particular on the reasoning in R. v. Ashton 2017 ONCJ 585 (“Ashton”).

[26]        In Perry, a suspended sentence was imposed. That involved a “sucker punch” by a coach upon an opposing coach, but in relation to children’s sports activity in a public park and in the presence of children. For that reason, it is more aggravated and distinguishable. As for Dixon, the court granted a conditional discharge, but in circumstances that involved a very high degree of provocation by the victim. The Crown suggests that is the sort of case where a conditional discharge is appropriate.

[27]        Ashton involved a non-contact recreational hockey game. Mr. Ashton, the goalie for one of the teams, had been tripped up by an opposing player. Mr. Ashton then swung his stick at that player, striking his face and causing significant injury. The court imposed a conditional sentence in that case.

[28]        However, it is the reasoning of the court in that case that the Crown relies upon in this case. The court in Ashton says that there is a distinction between the level of violence expected in professional leagues, such that the level of consent is different. The court says that in a professional hockey league, for example, there is a consent to ‘some violence’, and the “same cannot be said for non-contact or recreational leagues”. The court said that was the basis for denying the type of sentence granted in cases like Bertuzzi, that of a conditional discharge.

[29]        I do not agree with the approach taken in Ashton and supported by the Crown.

[30]        Specifically, in order for the conduct to amount to an assault in the first place, it must exceed the level of violence norms relative to that sport. Otherwise there is at least tacit consent. Certainly, the more egregious the conduct, the more serious the circumstances of the offence and that is a factor for sentencing, including the application of the objectives of deterrence and denunciation.

[31]        To be clear, soccer, including at the over 35 category, is far from a non-contact sport. It may differ from hockey, in that it strongly condemns even consensual fighting, but it has its own sense of violence that falls within the norms, even if outside the rules, of the game. While that may distinguish this case from the reasoning in Ashton, that is not the basis for my view that it should not be followed.

[32]        I fail to see how the expectations of a higher level of violence in a professional league, or the physical training and preparation level of the athletes, decreases the need for denunciation and deterrence when the level of violence norms are exceeded, particularly when, if anything, general deterrence will be increased when the case has higher notoriety. That, in effect, says because the victim expects some level of violence, the offender is entitled to the benefit of that expectation even when the offender exceeds that level. Similarly, I fail to see how the lower expectations of violence in a non-professional league, even if true, should result in greater penalty to the offender.

[33]        For that reason it is difficult to distinguish cases like Bertuzzi and McSorley; although the collateral effects on the offender as a professional athlete (or police officer) of the process of being charged, the effect on their livelihood, notoriety of the case, and the other losses may make the registering of a conviction unnecessary.

[34]        In this case, this was a “sucker punch”. It was cowardly and serious. Indeed, even in hockey (or I expect any organized sport), that amounts to an assault as conduct well outside the type consented to by the participants. However, it was reactive in a moment of frustration and uncharacteristic of Mr. Miletic.

[35]        Therefore, I do not consider it as serious as the actions of either Mr. Bertuzzi, which were also premeditated, or of Mr. McSorley, which involved the use of a weapon in the nature of a hockey stick. Principles of both parity and restraint suggest that the sentence be no greater than that imposed in similar cases.

[36]        Although there is a lack of remorse expressed in this case, I do not consider that significant enough not to allow for a conditional discharge.

[37]        In my view, the principles of sentencing can be met by the imposition of a conditional discharge with a period of probation. The purpose of that probation will be to also satisfy the objectives of promoting a sense of responsibility, which can be achieved by requiring Mr. Miletic to complete some community work.

[38]        Therefore, I grant a conditional discharge, and place you on probation for a period of one year. The terms will be to keep the peace and be of good behavior, to report to a probation officer in New Westminster within 2 business days and thereafter to report for the sole purpose of arranging for the completion of 50 community hours. The only other condition will be that you will have no contact with the victim, Mr. McGregor, except in any legal proceeding, and you will not go to any known residence, place of employment, of education, or worship. You will also not participate in any sporting activity involving Mr. McGregor.

[39]        I will also make the mandatory DNA order under s. 487.051(1).