R. v. Ciolli Date:, 2018 BCPC 3

Citation: R. v. Ciolli Date: 20180108 2018 BCPC 3 File No: 247829 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. ANTONIO ROSARIO CIOLLI REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: M. Gervin Counsel for the Defendant: M. Swartz Place of Hearing: Vancouver , B.C. Dates of Hearing: December 21, 2017 Date of Judgment: January 8, 2018 I. INTRODUCTION

[ 1 ] Mr. Ciolli pleaded guilty to 3 counts of uttering threats to cause bodily harm to the Honourable Judge Young, Crown Counsel, Jocelyn Coupal, and Constable Gasparac. Mr. Ciolli is drug addicted, he has a serious mental illness, and he has a long criminal record.

A sentencing hearing was conducted where counsel made a joint sentencing recommendation of 1 day in custody, with the record reflecting time served of 165 days, followed by probation for 3 years, a DNA order, and a weapons prohibition. [ 2 ] In light of the joint recommendation this Court is tasked with determining if the proposed sentence would bring the administration into disrepute or would otherwise be contrary to the public interest. II. CIRCUMSTANCES OF THE OFFENCES [ 3 ] On Saturday, July 22, 2017, Mr. Ciolli was in custody in Vancouver cells.

Given that it was a weekend, he appeared via video before Judge Young. At that time, Mr. Ciolli indicated that he did not want counsel to assist him and that he was seeking his release. As such, Ms. Coupal, who was the bail Crown indicated that the Crown was seeking Mr. Ciolli's detention. [ 4 ] A bail hearing commenced with Ms. Coupal presenting the factual circumstances leading to Mr. Ciolli's arrest and his criminal history. Judge Young then gave Mr. Ciolli an opportunity to respond. A transcript of Mr.

Ciolli’s bail hearing reveals that his responses were focused on the circumstances leading to his arrest and his anger with the police. [ 5 ] As the hearing progressed, Mr. Ciolli’s anger and level of aggression appeared to escalate. Efforts were made to calm him but these were unsuccessful. The transcript documents the following exchanges: THE COURT: And also, I must say, Mr. Ciolli, I am not pleased with some of your responses today. I don't know that it's helping to be so aggressive. THE ACCUSED: I'm telling you right now that I [indiscernible] fucking gangs. And if you put me in jail, we'll fucking kill you.

We'll fucking kill you. THE COURT: Yes, well, we understand that. THE ACCUSED: [Indiscernible/videoconference] torture you, bitch. They know fucking [indiscernible/ videoconference]. We know where you fucking live. THE COURT: Yes, I am detaining you, sir. THE ACCUSED: We know where you fucking live, bitch. THE COURT: I'm detaining you on -- THE ACCUSED: We'll fuck you -- THE COURT: -- on the secondary ground. THE ACCUSED: We will fucking kill you. We will fucking kill you, bitch. Let me go or we will fucking kill you. THE COURT: Yes, I've heard that. All right. UNIDENTIFIED MALE SPEAKER: [Indiscernible].

THE ACCUSED: We're gonna fucking torch you alive, bitch. Have a good fucking life,… (Transcript, July 22, 2017, p. 9, ll. 25-47) [ 6 ] Thereafter, Mr. Ciolli continued to threaten Judge Young, eventually his threats included Ms. Coupal. In this regard the following occurred: THE ACCUSED: We're gonna gouge out your fucking eyeballs, bitch. We're gonna cut off your fucking face. We're gonna cut you up, bitch. Have a good fucking life. UNIDENTIFIED MALE SPEAKER: Well, he should be charged. MS. COUPAL: Your Honour, can I -- oh, we're stopping. Okay. THE COURT: Yes, I am just going to stand down.

THE ACCUSED: [Indiscernible]. We're gonna fucking torture you alive, bitch. We're gonna torture you alive. Hells Angels, MS-13, Crips. We know where you live, bitch. We're gonna torch you alive and your family. UNIDENTIFIED MALE SPEAKER: [Indiscernible]. THE ACCUSED: Same with the prosecutor. The prosecutor, the judge, your family and you are fucking dead. MS. COUPAL: I need to [indiscernible]. THE ACCUSED: You're going to have a very painful death. Fuck. (Transcript, July 22, 2017, p. 10, ll. 19-38)

[ 7 ] The above documents, some but not all, of Mr. Ciolli’s threats. [ 8 ] After his video appearance, Mr. Ciolli was placed into cells. While in cells, Mr. Ciolli uttered similar threats to Cst. Gasparac. [ 9 ] Mr. Ciolli has been in custody since July 22, 2017, and on November 8, 2017, he pled guilty to the allegations. The Court ordered that a Pre-Sentence Report with a full psychological psychiatric component be prepared. These reports have been completed and I have reviewed them. [ 10 ] At the time of his offences, Mr. Ciolli was under the influence of crystal methamphetamine. III. MR.

CIOLLI’S BACKGROUND AND CIRCUMSTANCES [ 11 ] Mr. Ciolli is 23 years old. He is an only child and his family has a history of mental health and addiction issues. When Mr. Ciolli was 3 years of age, his parents separated and he remained living with his mother, Anita. [ 12 ] Mr. Ciolli’s father, Rosario, was an associate of the Hell’s Angels. He had a history of bipolar disorder and he struggled with a cocaine addiction. Despite these characteristics, Rosario remained involved in Mr. Ciolli’s life and did not expose him to his negative lifestyle. [ 13 ] When Mr.

Ciolli was 11 years of age, his father committed suicide. It is believed Mr. Ciolli blames himself for his father’s death. After the death of his father, Mr. Ciolli began a slow decline. Changes in his behaviour were noted, and despite his mother’s best efforts, Mr. Ciolli refused counselling or mental health care. As a result, Mr. Ciolli began experiencing difficulties at school, which resulted in him leaving school and trying home schooling. Home schooling was not successful and Mr. Ciolli transferred to an alternate school where he failed to complete his Grade 12. [ 14 ] With respect to drug use, Mr.

Ciolli started using crystal methamphetamine when he was 16 years old. Thereafter, he began using heroin and occasionally crack cocaine. His primary drug is crystal methamphetamine. It is Mr. Ciolli’s perspective that crystal methamphetamine allows him to think clearly and that he will never stop using the drug. [ 15 ] Mr. Ciolli has had many opportunities to address his addiction. In this regard, he has attended various residential treatment centres including; Luke 15, and King Haven. Unfortunately, Mr.

Ciolli has typically left these centres within days of his admission and in some cases within hours. [ 16 ] As for Mr. Ciolli’ s mental health, Dr. Meldrum offers the following diagnoses: schizoaffective disorder, bipolar type disorder, crystal methamphetamine use disorder, alcohol use disorder, marijuana use disorder and anti-social personality/trait disorder. [ 17 ] Mr. Ciolli has had multiple involuntary admissions to mental health units. In fact, at the time of the sentencing hearing Mr. Ciolli was certified pursuant to the Mental Health Act , as such, he was an inpatient at the Forensic Psychiatric Hospital.

Of note is Mr. Ciolli has had several referrals to Forensic Psychiatric Services, but unfortunately, he has missed numerous appointments and when he has attended he has refused treatment. [ 18 ] Efforts were also made to align Mr. Ciolli with the Assertive Case Management Team at New Westminster and Tri-Cities Mental Health. At first, Mr. Ciolli was treated with bi-weekly anti-psychotic injections; however, after a number of months he was deemed unsuitable for monitoring by the community-based mental health team. [ 19 ] When in hospital, Mr.

Ciolli is treated with a regime of the following drugs; flupenthixol, quetiapine, lorazepam, multivitamin, benzotropine, and loxpine. [ 20 ] Mr. Ciolli has an extensive criminal history. As an adult he has 44 criminal convictions for offences including; breaching court orders, sexual assault, threatening, weapon offences, assault with a weapon and theft. [ 21 ] In discussing Mr. Ciolli’ s criminal involvement, Travis Mitchell, the probation officer who prepared the Pre-Sentence Report, made the following observations: Since PO Mitchell started supervising Mr.

Ciolli, his longest period of consecutive time living in the community before being arrested is less than one month. Mr. Ciolli’ s criminal justice system involvement is clearly linked to his mental illness and negative attitude toward addressing his mental health needs coupled with his ongoing abuse of crystal methamphetamine. [ 22 ] With respect to the risk of Mr. Ciolli re-offending, Dr. Meldrum summarized at page 13 of her report: In

summary Mr. Ciolli is a very unfortunate young man with a family history of mental health and addictions difficulties [sic] who experienced the trauma of his father’s death through suicided [sic] at a young age. He experienced the early onset of severe and persistent addictions which precipitated, exacerbated and perpetuated his mental health difficulties. Mr. Ciolli’s course of illness has been further complicated by his persistent lack of insight and repeated episodes of non-compliance to all orders of community supervision.

He is a young man with very limited personal support and it is anticipated that in short order when back in the community Mr. Ciolli will be non-compliant to treatment and relapse into substance abuse. He will become disorganized, irritable, impulsive and hypersexual and will be at an increased risk of harm to others through uttering threats, aggressive behavior which will also include sexually aggressive behaviours. He will certainly reoffend in very short order and breach his orders of community supervision. IV. AGGRAVATING AND MITIGATING CIRCUMSTANCES A.

Aggravating Circumstances [ 23 ] There are a number of aggravating circumstances in this case. They include:

• the targets of Mr. Ciolli’s threats were participants in the criminal justice system; • Mr. Ciolli has an extensive criminal record including 3 convictions for uttering threats; • Mr. Ciolli was bound by 5 probation orders at the time of his offences; and, • Mr. Ciolli’s continued refusal to comply with probation or treatment plans. B. Mitigating Circumstances [ 24 ] Mr. Ciolli is a young man and he has the cautious support of his mother.

I have used the word “cautious” because it is clear that she loves her son and that she wants to help him and yet it is also clear that she is acutely aware that his needs are greater than she is able to provide. [ 25 ] Mr. Ciolli pled guilty to the offences. In this regard, Mr. Ciolli saved the state the time and expense associated with prosecuting him. He has also saved the victim’s the challenges associated with being a witness and, finally, Mr. Ciolli’s acknowledgement of guilt is an acceptance of responsibility for his actions. [ 26 ] Lastly, Mr. Ciolli’s mental health is a significant mitigating factor.

This view is exemplified in, R. v. Ayorech, 2012 ABCA 82 , where at paragraph 10 the Court observed: [10] The Crown submits that the sentencing judge erred in principle by treating the respondent’s mental illness and substance abuse as mitigating factors. Substance abuse by itself is ordinarily not a mitigating factor, nor did the judge characterize it as such.

On the other hand, mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such: R v Resler , 2011 ABCA 167 (CanLll), 505 AR 330. It is sufficient that the mental illness contributed to the commission of the offence: R v Belcourt , 2010 ABCA 319 (CanLll), 490 AR 224. … V. VICTIM IMPACT [ 27 ] Ms. Coupal was spoken to by the writer of the Pre-Sentence Report, Travis Mitchell, who wrote the following: Ms.

Coupal informs she has been employed as a Crown Counsel for the past 20 years and this incident was the worst and most graphic instance of threats toward her she has ever experienced. She indicates this offence left her feeling shaken and upset. Over time, Ms. Coupal indicates she learned more about the subject’s mental health and instability and drug addiction issues and while she does not condone his behaviour, she has shifted to a stance of feeling empathy for him. [ 28 ] Information was not received from Judge Young or Cst. Gasparac. Common sense dictates that anyone receiving the threats as stated by Mr.

Ciolli would have been upset and disturbed. VI. PRINCIPLES OF SENTENCING [ 29 ] The fundamental principles of sentencing are stated in s. 718 of the Criminal Code : 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

a) to denounce unlawful conduct;

b) to deter the offender and other persons from committing offences;

c) to separate offenders from society, where necessary;

d) to assist in rehabilitating offenders;

e) to provide reparations for harm done to victims or to the community; and

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community. [ 30 ]

Section 718.1 of the Code states that the fundamental principle of sentencing is: s. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 31 ] Proportionality is the sine qua non of a just sentence. It is where the sentence imposed reflects the seriousness of the offence balanced against the degree of moral blameworthiness ( R. v. Ipeelee , 2012 SCC 13 (CanLll), at paras. 36-37 ). [ 32 ] Recently, in R. v. Carte, 2017 BCSC 2421 , Madam Justice DeWitt-Van Oosten commented on achieving a proportionate sentence.

At paragraph 65, she observed: [65] Achieving a proportionate sentence is a case-specific determination, requiring a multi-factoral analysis tailored to the individual circumstances of the offence and the offender: R. v. Nur , 2015 SCC 15 at para. 43 . All relevant factors must be considered. [ 33 ] Additional sentencing principles are found in s. 718.2 of the Code ; the relevant portions read as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender, and, without limiting the generality of the foregoing…, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

d) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders,with particular attention to the circumstances of aboriginal offenders. VII. SUBMISSIONS OF COUNSEL [34] Counsel jointly submit that their sentencing recommendation was achieved with the following considerations in mind. First, atrial would have been challenging because of the need to bring in a judge from out of the Vancouver region, coupled with the need toretain an ad hoc prosecutor.

Counsel points out this would have created substantial scheduling difficulties and impacted severalschedules. [35] Second, counsel point out that Mr. Ciolli’s mental health continually fluctuates such that his fitness would have likely changedseveral times throughout a trial, thus, resulting in several adjournments. Third, the combination of Mr. Ciolli’s mental health and hisdrug ingestion would have likely been an issue at trial. The litigation of this issue would have consumed several days of evidence andargument. [36] Lastly, counsel recognize the difficulties that Mr.

Ciolli has in complying with probation orders; however, it is their perspectivethat a lengthy probation order will assist in protecting the public; through monitoring, and by making rehabilitative services available. VIII. JOINT SUMBISSIONS [37] Given that counsel has jointly recommended a sentence it is necessary to discuss joint submissions and the applicable test. [38] In R v.

Anthony-Cook, 2016 SCC 43, at paragraph 2, Justice Moldaver was of the view that a joint submission on sentence iswhen the Crown and defence counsel agree to recommend a particular sentence in exchange for the accused entering a guilty plea. [39] At paragraph 31 of Anthony-Cook, Justice Moldaver identified the “public interest” test as being the correct approach indetermining the appropriateness of a joint sentencing submission. At paragraphs 32-34 Justice Moldaver clarified when the publicinterest may justify departing from a joint submission. In this regard he stated: A.

The Proper Test 32 Under the public interest test, a trial judge should not depart from a joint submission on sentence unless the proposed sentence wouldbring the administration of justice into disrepute or is otherwise contrary to the public interest. But, what does this threshold mean?

Twodecisions from the Newfoundland and Labrador Court of Appeal are helpful in this regard. 33 In Druken, at para. 29, the court held that a joint submission will bring the administration of justice into disrepute or be contrary tothe public interest if, despite the public interest considerations that support imposing it, it is so "markedly out of line with theexpectations of reasonable persons aware of the circumstances of the case that they would view it as a break down in the properfunctioning of the criminal justice system". And, as stated by the same court in R. v.

B.O.2, 2010 NLCA 19 , at para. 56, whenassessing a joint submission, trial judges should "avoid rendering a decision that causes an informed and reasonable public to loseconfidence in the institution of the courts". 34 In my view, these powerful statements capture the essence of the public interest test developed by the Martin Committee. Theyemphasize that a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission sounhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, awareof all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the properfunctioning of the justice system had broken down.

This is an undeniably high threshold -- and for good reason, … [40] As such, this Court must determine if the proposed sentence is “so markedly out of line with the expectations of reasonablepersons aware of the circumstances of the case such that they would view the sentence as a break down in the proper functioning of thecriminal justice system”. IX. ANALYSIS [41] Applying the above test, it is my view that a reasonable person, who is fully informed and understanding of the benefits flowingto the justice system and, therefore, to the public, as well as, Mr.

Ciolli’s unique circumstances and the circumstances of this offences,would not see a break down in the criminal justice system if the recommended sentence were imposed. [42] My conclusion is based on an understanding that a reasonable person would appreciate the complexities of Mr. Ciolli’ s case,specifically, continued incarceration would not be fit, nor would it serve to assist Mr. Ciolli. Accordingly, the best option in this difficultcase is to assist Mr. Ciolli as much as possible and to ensure that he is closely monitored. X. DISPOSITION [43] I sentence Mr.

Ciolli to three concurrent sentences of 1 day in custody with the record reflecting time served of 165 days. Thereafter, Mr. Ciolli will be placed on probation for a period of 3 years with the following terms and conditions: • keep the peace and be of good behavior;

• you must appear before the Court when required to do so by the Court; and, notify the Court or your probation officer in advance of any change of name or address, and promptly notify the Court or your probation officer of any change of employment or occupation; • you must not have any direct or indirect contact with Judge Wendy Young, Ms. Jocelyn Coupal, or Cst. Sabrina Gasparac; • you must not attend at any residence, education institute or place of employment known to you to be that of, Judge Wendy Young, Ms. Jocelyn Coupal, and Cst.

Sabrina Gasparac, except you may attend their places of work if you are attending for scheduled court appearances, making a report to the Vancouver Police Department or you are in custody; • you must report within 72 hours of your release from custody or hospital to a probation officer located at #103-80 6 th Street, New Westminster, BC, and, thereafter, as and when directed, by your probation officer; • you will take reasonable steps to maintain yourself in such a condition that your mental illness will not likely cause you to conduct yourself in a manner dangerous to yourself or anyone else; • if directed by your probation officer, you will forthwith report to the Forensic Psychiatric Services Outpatient Clinic at 300 - 307 West Broadway, Vancouver.

B.C., or any other community based mental health clinic or team; • you will, thereafter, attend as directed, from time to time, at the Forensic Psychiatric Services Outpatient Clinic at 300 - 307 West Broadway, Vancouver.

B.C., or any other community based mental health clinic or team; for the purpose of receiving medical counselling, treatment or medication as may be recommended, except that you shall not be required to submit to any treatment or medication to which you do not consent; • if you do not consent to the form of medical treatment or medication, which is prescribed or recommended, you shall forthwith report to your probation officer and, if directed by your probation officer, you shall report to the Forensic Psychiatric Services Outpatient Clinic at 300 - 307 West Broadway, Vancouver.

B.C., or any other community based mental health clinic or team for the purpose of being monitored with respect to a possible breach of this Order; • you shall provide your treating physician with a copy of this Order and the name, address and telephone number of your probation officer.

You shall instruct your treating physician that if you fail to take medication as prescribed or fail to keep any appointments, then your treating physician is to advise your probation officer immediately of any such failure; • you must notify your probation officer of your residential address and if you change that address you must immediately notify your probation of your new residential address; • you are to abstain from the possession and consumption of those drugs defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription; • you must not possess any weapons as defined by the Criminal Code ; • while outside your place of residence you must not possess any scissors, razors, machetes, swords, bladed instruments or knives, except you may possess knives if you are immediately engaged in the preparation or consumption of food.

XI. ANCILLORY ORDERS A. DNA [ 44 ] The Crown applies pursuant to s. 487.051 (3) of the Criminal Code for an order to obtain a sample of Mr. Ciolli’s DNA. Counsel for Mr. Ciolli does not oppose the application. In considering the issue, I recognize that I can make the order sought if I am satisfied that such an order is in the best interests of the administration of justice. [ 45 ] In deciding the Crown’s application, I must consider Mr. Ciolli’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr.

Ciolli’s privacy and the security of his person. [ 46 ] Mr. Ciolli has a lengthy criminal record which includes offences related to violence and weapons. The circumstances of the instant matter involved a litany of specific direct threats of extreme violence. As for Mr. Ciolli’s privacy and the security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute. [ 47 ] After considering the relevant factors, I am satisfied that the taking of Mr. Ciolli’s DNA is in the best interests of the administration of justice. Crown’s application is granted. B.

WEAPONS PROHIBITION PURSUANT TO

SECTION 110 [ 48 ] The Crown applies pursuant to s. 110 of the Criminal Code for a 10 year weapons prohibition. Counsel for Mr. Ciolli does not oppose the order. In considering Mr. Ciolli’s criminal record, his addiction and his mental health issues, this Court finds that it is not desirable in the interests of public safety for Mr. Ciolli to possess weapons. As such, and given his long history, he is prohibited for a period of 10 years from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years. _____________________________ The Honourable Judge R. Harris

Provincial Court of British Columbia