A Sudbury judge has ruled a man who has spent most of his adult life in jail doesn't meet the strict criteria to be declared a dangerous offender.
However, because of the seriousness of crimes he committed 44 months and his criminal record, Donald Kocurek will spend another 22 months behind bars. It's expected Kocurek will serve out the remainder of his sentence at a medium-security provincial reformatory in Penetanguishene.
Justice Louise Gauthier of the Ontario Superior Court of Justice made the ruling Friday (Nov. 8).
The test to be declared a dangerous offender includes the Crown proving beyond a reasonable doubt a person would cause an imminent threat to the life, physical or mental safety of members of the public. The judge said she wasn't convinced that test has been met.
Kocurek is not "at or near the end of the spectrum" of the most violent offenders who meet the dangerous offender standards set out in the criminal code, said Gauthier.
Kocurek has been in custody - all of it spent in segregation - since March 4, 2003, for a total of more than 44 months. Combined with the additional 22 months he was given Friday, Kocurek's total sentence will be 5.5 years.
Gauthier refused to give Kocurek two-for-one credit for pre-trial custody, noting his criminal record and the fact he was on probation at the time he committed the offences in the spring of 2003.
In an encounter with police in 2003, an officer fearing for his life fired five shots at Kocurek, but none of the bullets hit him. The officer had every right to believe Kocurek was trying to kill or seriously injure him during this frightening incident, said Gauthier.
Besides convictions for dangerous driving and assault with a weapon, Kocurek was also convicted of possessing cocaine, assault and breaching probation for the March 2003 incident.
In a hearing that last over several months and included 49 witnesses, Sudbury's Crown attorney John Luczak brought an application to have Kocurek declared a dangerous offender.
If Gauthier had declared him a dangerous offender, Kocurek would have been jailed for an indeterminate period, possibly for the rest of his life.
Kocurek, 36, smiled and shook his head approvingly when Gauthier ruled he did not meet the high standard to be declared a dangerous offender.
His violent behavior involved police and correctional officers, not the general public, the judge said. She painstakingly went through every incident where Kocurek lashed out at police officers and jail staff, which totaled more than 20 incidents over the past 15 years.
Kocurek first showed signs of antisocial personality disorder dating back to his early teens, said Gauthier, in a ruling that consisted of several dozen pages and took 80 minutes to read into the court record.
Kocurek has spent eight of the past 10 years behind bars and has numerous convictions for assault, including one sexual assault, two for dangerous driving, two for resisting arrest, one for an armed robbery and several for possessing drugs.
Several police officers and correctional officers testified how Kocurek was one of the most volatile and dangerous men they had ever dealt with in their careers.
There's no doubt Kocurek has serious issues relating to authority figures like police and correctional officers, but most of the incidents didn't meet the strict requirements mandated in legislation to have someone declared a dangerous offender, she said.
Kocurek has taken anger management courses and his violent outbursts while incarcerated have decreased over the past few months, she noted.
While Kocurek is "volatile, unpredictable...and dangerous", the Crown has not met the standard to have him declared a dangerous offender, she said.
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