R. v. Roefaro Date:, 2011 BCPC 278

Citation: R. v. Roefaro Date: 20111003 2011 BCPC 0278 File No: 199078-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANGELO DAMIANO ROEFARO EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.R. MEYERS Counsel for the Crown: L. Ashton Counsel for the Defendant: D. Karkairan (as Agent) Place of Hearing: Vancouver , B.C. Date of Hearing: October 3, 2011 Date of Judgment: October 3, 2011 [ 1 ] THE COURT: This is the time for sentence to be imposed on Mr.

Roefaro who was found guilty of three offences, Count 1, May 16th, 2008, committing an assault upon Fred Brenckman causing him bodily harm; Count 3, uttering a threat to Mark [sic] Brenckman to cause him bodily harm, May 16th, 2008; and finally May 16th, 2008, without lawful authority confining Mark Brenckman. It is obvious from the three charges that all three occur at the same time and place with the same individuals involved, Mr. Roefaro and Mr. Brenckman. [ 2 ] The matter was put over for sentencing today and I have heard submissions from counsel for the Crown and counsel for Mr. Roefaro.

Counsel for the Crown have, based on the facts in this case, the legal precedents cited for sentences in a similar type of crime with a similar type of crime with a similar type of background for accused people of four to five years imprisonment. [ 3 ] Mr. Rankin on behalf of Mr. Roefaro seeks a sentence of two years less a day all the way down to 15 or 16 months, in the alternative, a lower federal penitentiary time. [ 4 ] Every case is different. Every fact pattern is different. Every accused is different.

The principles of sentencing, though, always remain the same and that is for a judge to attempt to balance the criteria for a proper sentence as outlined in the Criminal Code . There is

always a balancing necessary for deterrence, both personal and general, and also for a recognition of rehabilitation necessary with respect to any accused persons. [ 5 ] The case itself arose in May of 2008 and we are now in October of 2011 so we have got about three years that have passed since the event happened.

The defence argue that three years of absence of any criminal convictions is something that should weigh very heavily in terms of showing the Court that a need for personal deterrence is not required in this case. [ 6 ] They say that although he has, and I will go over that shortly, an extensive background involving drug trafficking and assaults, that over the last three years, he has been free of any such convictions and that does show that he has changed his ways.

The defence argue that the need for a personal deterrent is not present in this case as it is in many of the other cases that the Crown relied upon in sentences that were in the four to six-year range. [ 7 ] Crown, on the other hand, say that, yes, three years' absence from any criminal convictions is a good sign, but what the other cases and what the Court should look at is what actual changes there have been in the person's life apart from just being crime free for three years.

Crown says that in cases where there is substantial changes shown in the person's life and lifestyle, that is something the Court should know about and utilize in terms of deciding whether personal deterrence is necessary or not. [ 8 ] The Crown says here we have not heard of any major changes in the accused's life in the last three years.

Defence counsel say that he worked for three months, he moved to outside of the Downtown Eastside, and he had a baby and he took a short educational course, but all of that, the Crown says, does not amount to showing that he has changed his lifestyle to any great degree. [ 9 ] Defence counsel says that he stopped doing drugs and he did have a cocaine problem years ago and did have one at the time of this incident in 2008 and has ceased to use cocaine or any other drugs since that time.

There is no independent evidence from a doctor or rehab specialist or rehab clinic to confirm that, but defence relies upon his client's claim that he has stopped using any narcotics. How he ended up achieving that goal, I do not know, but counsel says he has not used any drugs in the last three years. [ 10 ] When the cases are looked at, they do, as Mr. Rankin said, go right over a whole spectrum of sentences, everything from a conditional sentence all the way up to six years. Mr. Rankin argued that every case is different and the superior courts do not set guidelines or ranges. I do not agree with that comment.

The lower courts do rely upon the higher courts to set guidelines or ranges. Guidelines and ranges do not mean that the lower court has to fall within that guideline or range or it is an unfit sentence, but rather, it is something that we should look closely at as being some guideline for a range of sentences for similar types of crime with similar types of accused. [ 11 ] It goes without saying that no two crimes are the same, no two accused are the same, and that everyone is entitled to a fresh look at what the proper sentence should be in the case.

That does not mean that one ignores completely what the higher courts have said in terms of the type of crime and type of offender with respect to that crime. [ 12 ] The Crown have a series of cases that have been put together in their book of authorities that was filed at sentencing and is available for anyone to look at later. They essentially put forward three cases, R. v. Fong , a Provincial Court decision; R. v. Terezakis , a Supreme Court decision, followed by R. v. Terezakis , the B.C.

Court of Appeal decision following that Supreme Court decision. [ 13 ] Defence put forward a number of cases in their book of authorities that was filed and that case book is also available should anyone wish to read it. Defence have cases of R. v. Evers , R. v. Kelly , R. v. Rufus , R. v. Sanghera [phonetic] or -- and R. v. Snelgrove , and there is mention in -- I cannot recall which of those cases, but they do mention the case of R. v. McAninch , [1994] B.C.J. No. 3088 , where a three-year sentence was given for an assault with weapons.

The person had a prior unrelated record, a strong work history, completed anger management while in jail and awaiting trial, and the Court had said those were factors of a mitigating nature that resulted in the three-year sentence. [ 14 ] With respect to the facts, as I found them to be, the victim in this case was a man who at the time was addicted to cocaine and he claimed that Mr.

Roefaro was his drug vendor and the procedure that was used, would be that the addict would go to the rooming house on Prior Street; he would be greeted there by two men what the victim called "henchmen", which I will call "associates" of Mr. Roefaro; they would put him into a bathroom on the main floor; they would ring Mr. Roefaro to tell him that his customer was there; Mr. Roefaro would come downstairs into the bathroom and exchange drugs for money. [ 15 ] On this occasion, the victim said that he had heard on the street that Mr.

Roefaro was telling people that he owed Roefaro money and he said he did not owe him any money, but he figured that this was a pretty serious accusation and he better go there and straighten it out. So he ends up going to the same rooming house, met by the usual associates. He tells them he wants to see Mr. Roefaro to discuss a matter with him. A few minutes later, Mr. Roefaro comes down and comes down with a metal pipe. [ 16 ] The interaction between Mr. Roefaro and the victim turns in a direction, quite different than what the victim had expected.

The victim, as I said, was told that Roefaro thought he owed him money and he was going down to straighten that out, to say, "Well, I don't owe you any money, what's this all about?" It turns out that Mr. Roefaro was angry at the victim because he had heard that he was "coming on" to his wife and he did not like that very much. The beating started as a result of that, to put the victim "in his place". [ 17 ] The victim said he was not "coming on" to his wife, he was gay, and he had no desire or reason to go after or come onto Roefaro's wife.

According to the evidence that I accepted from the victim, he continued to be beaten by Mr. Roefaro and now the beatings had the accompaniment of all kinds of slurs about gays. [ 18 ] The Crown have taken the view that although a lot of gay slurs were used as he was hitting the victim with the bar, the metal bar, that it should not be classified for sentencing purposes as a "hate crime", simply because, in her respectful submission, the crime was not started by Mr. Roefaro because the victim was gay, it did not really continue on because the victim was gay.

The Crown says, that it would have continued on, anyway, whether he was gay or he was not and the slurs about being gay were part and parcel of a beating that would have been exactly the same had he been straight or had been gay and so the Court should not look to this as making this a "hate crime".

[ 19 ] Given the position of the Crown, I am complying with the request of both defence and Crown that I not view this as a hate crime causing further aggravating circumstances which would necessitate an even more harsh punishment than the beating itself should bring. However, we do have a situation where Mr.

Roefaro has laid a beating on the victim over a three-hour period, where he goes out of the room and comes back, a total of three times, where he beats the victim on the head, on the shoulders, on the chest, and in the face, with a metal bar as well as kicking and punching him. [ 20 ] The end result is a three-hour beating that takes place as he is confined in the bathroom of the rooming house. To make sure he stays put, there are three associates of Mr. Roefaro who remain outside the door so that the victim is not going to be able to escape.

After beating up the victim and leaving him bleeding in the bathroom, he is told that he has to clean up all the blood. The victim is further traumatized by trying to clean up all the blood while he is still bleeding from his head and mouth and is fearful he is not going to be able to get the job done. [ 21 ] Before Mr. Roefaro leaves the bathroom, he tells the associates that they could do whatever they want with him, but make sure the body is not thrown in the alley behind the rooming house, take the body down to a different alley.

The victim, hearing that, knows that he is destined to die or believes he is and so he makes a last-ditch effort to escape, which he does and gets by the associates, he runs over to the police station, goes to the hospital, and after that, the charges ultimately are laid. [ 22 ] By way of injuries, the victim had lacerations to his head. He has several ribs that were broken. He lost five teeth in the attack. It should be noted that Mr. Roefaro at the time was a very large man, over 300 pounds, I think, and the victim was somewhere around 150 pounds. Roefaro had a steel bar and the victim had nothing.

He was also, in the course of the three hours, told that if he raised his hands to cover his head, he would keep getting hit more and more and more. So it is obvious that the trauma for the victim was tremendous in this particular case. [ 23 ] The beating seems not to have been related to enforcing drug debts, but rather to what Roefaro believed to be inappropriate advances to his wife. The beating itself was a very brutal beating and a beating which was taken upon a victim with absolutely no means to defend himself while he was locked in a bathroom. [ 24 ] The criminal background of Mr. Roefaro is very serious.

By way of the record that has been admitted to: 1993, assault in Toronto; 1994, possession of a prohibited weapon in Toronto; 1997, assault causing bodily harm, Toronto; 2001, Toronto, uttering threats and failed to comply with a recognizance; 2002, again in Toronto, uttering threats; 2006 in Toronto, trafficking

Schedule I substances, two charges, possession of

Schedule I substances for the purpose of trafficking, and then another assault combined with that in 2006; 2007, there is possession for the purpose of trafficking of a

Schedule I drug. So the last offence on the record is 2007, May of 2007. This one happens in May of 2008, approximately one year after the last conviction. [ 25 ] In the three years that have passed since this happened, I have not had any evidence, as the Crown has indicated, of a reformed life. I have a whole series of criminal offences from 1993 all the way to 2007 and then also, of course, May of 2008, (this case before the Court) when Mr. Roefaro says he was still suffering from a cocaine addiction. [ 26 ] The night in question, May 16, 2008, three years ago, left an awful lot of time for Mr.

Roefaro to undertake anger management, for example, drug treatment, upgrade education, and so forth, but I have no evidence that he did any of those things. I have evidence that he stayed out of involvement in crimes since that time. Certainly, that is to his credit, but at this juncture, in terms of me trying to assess what degree of both personal and general deterrence is required, I am in a difficult position. [ 27 ] As far as personal deterrence is concerned, all I know is that from 1993 to 2008, which is 15 years, there had been a rather continuous flow of violent behaviour combined with weapons.

I know that in the three years gone by, there has not been any of that. Whether he has reformed or why this three years of abstinence has taken place, I do not know. [ 28 ] I do not know how I can predict the future of what he may or may not do when I have nothing before me other than a past 15 years filled with crime and three years of abstinence. There is no PSR, there is no psychiatric report, there is no real explanation of why Mr.

Roefaro was so violent that night, towards this unsuspecting unarmed victim, but nonetheless he was. [ 29 ] In terms of general deterrence, the courts have said in the cases cited by the Crown and to a degree by the defence, that violent crime such as this, has to result in a Court showing society's abhorrence of this type of violence and that the sentence must be proportionate to the gravity of the offence and the responsibility of the offender.

The sentence has to be increased or decreased depending upon aggravating factors surrounding the case or mitigating factors surrounding the case. [ 30 ] In terms of the aggravating factors surrounding this case, I have the fact that the victim is unarmed, the victim has not provoked the assault, the victim is assaulted over a three-hour period, the victim is confined, he is beaten with a steel bar, he suffers severe injuries that night with consequences that I have talked about, in terms of the teeth and ribs and the head.

The only reason that he was able to escape further beatings that night, be it potentially from Roefaro or one of his associates, was that he was able to escape from the bathroom. [ 31 ] As far as any mitigating circumstances surrounding the commission of the offence itself, I do not have any.

As far as mitigating circumstances, following the offence, I have that he moved out of the Vancouver Eastside which may or may not be a mitigating factor depending on whether there is something special (positive) that is being done outside of the Vancouver Eastside that he could not have done inside the Vancouver Eastside area.

I am told he now has a young child, although at the time of the offence, he also had one child and two children of his girlfriend or common law was then living with him and she was pregnant at the time. [ 32 ] So those factors that the defence say are mitigating that happened since the offence are relatively small mitigating factors. The fact that he worked for three months or the fact that he took a part-time or a short upgrading class, again, are small mitigating factors as opposed to large ones. [ 33 ] MR. KARKAIRAN: Excuse me, Your Honour, am I allowed to interrupt you for a minute?

[ 34 ] THE COURT: Not yet. [ 35 ] THE ACCUSED: No, okay. [ 36 ] THE COURT: At the end you can. [ 37 ] THE ACCUSED: Okay, because those facts are wrong. [ 38 ] THE COURT: All right. [ 39 ] THE ACCUSED: I will write it down. Go on, I am sorry. [ 40 ] THE COURT: All right, no, that is fine. [ 41 ] Mr. Roefaro, all during the trial, I must say, as an individual, conducted himself with dignity and with intelligence and with deference to the Court and was a perfect gentleman from start to finish, but that was a very different Mr. Roefaro than on the night in question. The night in question, Mr.

Roefaro was a savage beast and he beat the daylights out of this poor victim. I have to look at a sentence that is top heavy on deterrence and bottom heavy on rehabilitation. [ 42 ] The sentence range of the cases that all can be distinguished, based on criminal records, what people did after the offence date, all provide a range that is quite wide, as I said before, everything from an unusual conditional sentence all the way up to five or six years in a penitentiary.

Each case depends on the particular individual and the particular facts surrounding the particular case. [ 43 ] A criminal record is always a major consideration in sentencing a violent crime because we look at what was done in the past to deter this individual and, if it has not worked, we start to look at what can deter the individual and that has to do with increased either rehabilitation and/or increased punishment. [ 44 ] In this particular case, the range of sentences that the Crown has asked for to be in the four or five-year mark is certainly towards the upper end of the range for like offences and somewhat like accused persons.

The defence range of one-and-a-half years to two years less a day or a little into federal time is way outside, in my view, the general range for accused with this type of past related history, with this type of violence involved and with a weapon involved. It would seem that the Crown's range is closer to what is appropriate in this particular case. [ 45 ] However, I am cognizant of the three-year delay in this coming to trial. I did ask both Crown and defence if the reason for the delay might be a consideration for the Court to have if reasons had been given for it.

Both counsel were of the view that that was not something that was relevant to the sentencing. In my view, if it had been the accused who was responsible for delaying the proceedings or had been on the run, basically committing a crime of evading punishment for three years, that would be relevant. I do not have that information and all I have is that he has lived for three years without causing any further harm to society. [ 46 ] I do consider a three-year absence of committing crimes as being a very important factor in the sentencing of Mr. Roefaro.

Had it not been for the three-year abstinence, then I would say that the four or five years that the Crown asked for was certainly an appropriate and fit sentence for Mr. Roefaro. However, given that three years of no criminal offences has occurred and given that I am not able to attribute the delay to something purposefully arranged by Mr. Roefaro to put a lot of time in between May 16th, 2008 and when he finally had to be sentenced, I am, in this case, prepared to lower his sentence to three years in the federal penitentiary, and that will be his sentence. [ 47 ] All right. Now, Mr.

Roefaro, did you want to say something? [ 48 ] THE ACCUSED: Yes, I just want to say, Your Honour, that -- [ 49 ] MS. ASHTON: Stand up, please. [ 50 ] THE ACCUSED: Yes, sorry. It was not an upgrading course. I took a college diploma course. It was 10 months long and I have been working for more than three months. It was from January just up until August. I had to stop in August because I did not know what was happening with my trial and I could not start the next cycle because I am a salesman with advertisement and it goes in cycles of three months. [ 51 ] THE COURT: I think Mr.

Roefaro, that he said three months, did he not? [ 52 ] THE ACCUSED: Yes, I do not know why. [ 53 ] THE COURT: Well, he made a mistake. [ 54 ] THE ACCUSED: I was working right up until August, and we did not have any children that were living with us in the Downtown Eastside, and Your Honour was worried about, you know, what -- I have been off drugs. I would be able to produce pee tests. I have done pee tests at the doctors. I did not know I needed that or I would have asked my doctor to bring it in to prove that I have been off drugs. [ 55 ] THE COURT: Yes, but those things, Mr.

Roefaro, have to be done before the sentencing, not after. [ 56 ] THE ACCUSED: Before, I did not know that, but I can prove that, I am just letting you know, and we did not have any children with us, and if Your Honour was worried about me reoffending, I am not in the circle anymore. I am not -- I am not hanging out with that kind of crowd. My life has changed because I am a different person because I am different all around. Like I am a family man now. [ 57 ] THE COURT: Mr. Roefaro -- Mr. Roefaro --

[ 58 ] THE ACCUSED: Yes. [ 59 ] THE COURT: -- you see, a lot of what you are saying I has to be told before sentencing, not after -- [ 60 ] THE ACCUSED: Yes. [ 61 ] THE COURT: -- because, you know, it is like you let the horse out and then you close the barn door. You had very competent counsel, Mr. Rankin. [ 62 ] THE ACCUSED: Yes. [ 63 ] THE COURT: I decide the case on what I hear in the courtroom. I have told you that from square 1 -- [ 64 ] THE ACCUSED: Yes. [ 65 ] THE COURT: -- and, as I say, I have decided it based on what I have heard. If there are other factors I did not hear, that is too bad.

However -- [ 66 ] THE ACCUSED: It is too bad for me. [ 67 ] THE COURT: That is what I meant. [ 68 ] THE ACCUSED: Yes. [ 69 ] THE COURT: Too bad for everybody. [ 70 ] THE ACCUSED: Mm-hmm. [ 71 ] THE COURT: I mean these are factors that may, I am not saying would, but may have changed things. They may have, they may not have.

I do not know because I have not heard them, but as much as you want me to, you know, wind back the clock and reopen it, I cannot. [ 72 ] THE ACCUSED: Yes. [ 73 ] THE COURT: Once I make the decision, I make the decision -- [ 74 ] THE ACCUSED: Mm-hmm. [ 75 ] THE COURT: -- based on what I have heard and that is what is the sentence is going to have to be. [ 76 ] Yes, and there also will be the order for the DNA and there will be an order for a lifetime prohibition against any weapons as defined under the Criminal Code . [REASONS FOR SENTENCE CONCLUDED]