R. v. Alfano, 2011 ONCJ 126

COURT FILE No.: Old City Hall Citation: R. v. Alfano , 2011 ONCJ 126 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PETER ALFANO Before Justice Beverly Brown Heard on January 19, 20 and March 1, 2011 Reasons for sentence released on March 4, 2011 Kenneth Davidson ...................................................................................................... for the Crown Hans Cedro for the accused Peter Alfano BROWN J: [ 1 ] Mr.

Peter Alfano was charged with 3 counts of robbery arising from March of 2010, together with one count of having a weapon, being a screwdriver or scissors, for the purpose of committing an offence. He elected trial before a judge and jury and requested a preliminary hearing. A preliminary hearing was commenced before this court, wherein all three complainants for the three counts of robbery were examined in chief and cross-examined, together with a police officer involved in the investigation. The following day, Mr.

Alfano re-elected trial in this court, and entered pleas of guilt to the three robberies and the additional weapons count. The Crown relied upon all of the evidence heard through the testimony of the three complainants and read into the record additional facts, all of which was admitted by the defence. In that sense, there was no complete agreed statement of facts which were summarized for the court. A very lengthy and serious criminal record for Mr. Alfano was filed in evidence. The case was put over for a pre sentence report which was ordered by the court.

The matter is now before this court for the imposition of sentence. The Crown and the defence have agreed upon a joint submission for a lengthy penitentiary sentence for Mr. Alfano. The impact of this sentence would continue what has become a revolving door for Mr. Alfano going in and out of the penitentiary doors, over the better portion of the last 11 years of his life. THE FACTS: A. Circumstances of the offences : [ 2 ] To set the scene properly, it is important for the court to go back into time somewhat in putting into context the robberies committed by Mr. Alfano. (

i) Background: [ 3 ] The court will go into more detail later in the reasons related to the circumstances of Mr. Alfano as an offender. However, to put in context the offences, Mr. Alfano has been sentenced to penitentiary sentences on two occasions in the past, both for multiple offences of robbery. In the most recent series of robberies for which he was sentenced, he was given a 4 year penitentiary sentence on each of three charges of robbery, concurrent to each other, in light of 116 days pre sentence custody.

Traditionally, in 2003, courts credited pre sentence custody at the rate of 2 days credit for each day of pre sentence custody. This would have made this sentence for 3 robberies equivalent to a sentence of 4 yrs and over 7 months in the penitentiary. At the same time he was sentenced to an additional 3 months jail, which was consecutive to that sentence. Just under 3 years later, he was released from the penitentiary as required to be released, on statutory release.

While serving the balance of that sentence, he was sentenced on a count of break enter and theft, that appears to have been committed while he was on statutory release for those 3 robberies and break and enter. As a result, he was sentenced again to a further 2 years in the penitentiary, in addition to the balance of the 4 year sentence. It appears that he was released again on statutory release, twice, while serving that sentence, and recommitted. [ 4 ] Mr. Alfano was ultimately released for the last time in relation to those sentences on March 15, 2010.

He did not even make it to the 10 day mark. (ii) Robbery of small business: [ 5 ] A brief nine days after his release from the penitentiary, on March 24, 2010, Mr. Alfano walked into a drycleaning

business on Dupont Street in Toronto at 220 p.m. He walked in through the front door, armed with a screwdriver or scissors described to be 3 inches in length. He proceeded to the front counter area. The owner of the business saw that a customer had entered and directed his employee, Ms. Singh, to serve the customer. She asked Mr. Alfano if she could help him. His response was to pull out the screwdriver or pair of scissors, standing a few feet from her, holding the screwdriver or scissors in his hand beside the cash register. He ordered her to “give me all your fuckin’ money and don’t fuckin’ scream”.

At this point, Ms. Singh stepped back and screamed for the business owner. Ms. Singh was very scared, but put forward the point in evidence that she did not give him any of the money from the business. Mr. Alfano then ran out of the store without succeeding in getting any money from the business. The business owner chased Mr. Alfano but was unable to keep up with him. This was a complete offence of robbery as Mr. Alfano used the weapon with the demand for money.

He was captured on a video surveillance system in the business and this was ultimately given to the Toronto Police holdup squad. (iii) Robbery of downtown branch of Royal Bank: [ 6 ] Five days after this offence of robbery at a small business in the city, on March 29, 2010, Mr. Alfano entered a downtown branch of the Royal Bank after it opened shortly after 8 am. There were two tellers working at the start of business that day, and two people in line, including Mr. Alfano. Mr. Alfano approached a female teller with four years experience, Ms. Goodaire.

He showed her a note that said “this is a robbery and I have a gun”. He held the note with his two hands as she read it. He did not give her the note to keep. She asked him how much he wanted, and Mr. Alfano did not answer. He did not speak at all when he was in the bank. He was looking down. The teller looked at the note, looked at him and said her limit was only $1500 that she needed to enter a transaction to dispense money. He nodded his head affirmatively. Mr. Alfano took the note back. He did not speak to her. She was nervous.

As she tried to process the transaction, she made mistakes trying to put in her user name and password. She finally got her name and password correct and then obtained $1500 which she gave to Mr. Alfano. The teller did not see a gun. He walked out of the branch with $1500, after having been captured on the bank surveillance video. The court noted from this video that was played in evidence that there was a striking resemblance between the person shown on the video as the robber and Mr. Alfano as he sat in court. Ms. Goodaire had never been robbed before.

There is no indication of any recovery of the money taken by Mr. Alfano in this bank robbery. (iv) Robbery of downtown branch of Bank of Nova Scotia [ 7 ] Two days after successfully robbing the Royal Bank of $1500, on March 31, 2010, Mr. Alfano walked into a downtown branch of the Bank of Nova Scotia. It was around lunch time and the bank was very busy. Ms. Mary Atsidakos was working in the branch as the customer supervisor. She has worked for the bank for 11 years. One of her customer representatives had to go on a lunch break. It was just before 130 pm.

The bank was short one customer representative and the lineup was huge. Ms. Atsidakos decided, as the supervisor, to step in to help out. She helped out the first customer, a woman who needed to replace her bank card. The next person who came to her wicket was Mr. Alfano. She was a very perceptive bank employee, and noted that he was wearing sunglasses but she could see through his eyes. He was dressed as a typical bank customer. She testified that often people wearing sunglasses come into the branch all happy. She related that her bank promotes customer service, and she asked him “how may I help you?” Mr.

Alfano stood very still, then flashed open a pamphlet from the bank that she thought had come from the customer booth. He wrote something on it as she stood there. He flashed the pamphlet at her. He had written down “this is a ROBBERY, I have a gun, give me what you have”. She was certain he had written the word “robbery” in capital letters. He did not give the note to the victim, but just showed it to her. Ms. Atsidakos, being a seasoned bank employee, was also a seasoned victim of bank robberies.

She had been robbed in the past when she worked as a teller at this downtown branch, and this was her third bank robbery. This time she was filling in for a teller. She described her reaction as being in disbelief. She then responded, perhaps unexpectedly, by saying to Mr. Alfano “you’ve got to be kidding”. Ms. Atsidakos described her reaction as being “a little bit ticked off that she was the chosen one”. Mr. Alfano then looked at her and then spoke. He said in a very low voice she suspected was not meant to be heard by other people “this is serious, give me what you have, hurry up”. He was direct and firm.

She knew right away she had to give him whatever she had in her cash drawer. She explained that she was not going to challenge him about the gun because she could put herself in danger, as well as the rest of the staff and bank customers by acting in that fashion, so she knew it was not an option to challenge Mr. Alfano. She focused on his face in order to be able to identify him. She opened her cash drawer and thought she had removed $200 cash to give him, taking care to engage the proper steps of providing money in a bank robbery. She described Mr. Alfano as acting calm and collected. She compared Mr.

Alfano to a previous robber she had dealt with who was sweaty and nervous and brought a bag with him. In comparison, Mr. Alfano was “so calm and very collected.” He left the branch in a rushed pace with what was thought to be $200 cash from the bank, after having been captured on the bank surveillance tape. He did not produce a gun while in the bank. Mr. Alfano was identified in this tape. The bank later recovered from Mr. Alfano $344. A little over a month later, Ms. Atsidakos has promoted to a new position and transferred from this downtown bank branch to another branch. (

v) Arrest of Mr. Alfano: [ 8 ] A few hours later that day, on March 31, Mr. Alfano was arrested. PC Bertrand Barretto was working in uniform in the downtown area. He was working as part of the TAVIS, “Toronto Anti Violence Intervention Strategy”, which had as one of its roles the investigation of troubled areas within the city. He was working with another officer. Just after starting his shift at 4 pm, he was given a leaflet from the Toronto Police holdup squad, which had a picture of a white male with the name Peter Alfano. It contained four photographs and details as to his physical description.

He was a wanted person. This information was given to officers in case they ran into Mr. Alfano. He looked at the picture and made a mental note of his appearance. Around 5 pm, he went with his partner to an area known by the police to harbour some criminal activity. Police were expected to attend this area, in the eastern portion of the downtown area, to investigate unwanted people at that address. While there, they saw Mr. Alfano with another person. Mr. Alfano was wearing sunglasses. Mr. Alfano was arrested. During the arrest, Mr. Alfano was searched, and police seized approx. $348.

Observations were made consistent with the robbery measures employed at one of the banks. B. Circumstances of offender:

[ 9 ] One of the first pictures painted of Mr. Alfano came from the criminal record put before the court. The first entry on his record was just before his 18 th birthday, in Saskatchewan. He has had convictions and sentences imposed with fairly frequent regularity, and which increased in seriousness and sentences over time. He was sentenced to his first period of jail when he was 20 years old, for 2 charges of Break and Enter, and other offences.

The second conviction and sentence was the beginning of a lengthy history of jail sentences, one after the other that have been imposed from the time he was 20 years old. Every sentence imposed after his 18 th birthday was for a period of jail. He has been sentenced in various parts of Canada ranging from Saskatchewan to Thunder Bay, Bracebridge, Toronto and Montreal. Most of his criminal entries have been concentrated in Toronto.

The offences have covered a wide range, from break and enters, to other property offences, drug trafficking, counseling to commit forcible confinement and five robbery convictions, all of which robbery offences resulted in penitentiary sentences. [ 10 ] In 1999, when he was 27 years of age, he was sentenced in relation to 2 offences of robbery. This sentence was for 2-1/2 years in the penitentiary, but it was in addition to the remainder of a sentence he was already serving for a break and enter and unlawfully at large. As set out above, he was let out of the penitentiary pursuant to statutory release.

He violated his statutory release and he was recommitted. Later he was again statutorily released. He again violated his statutory release and was recommitted. He was finally released for that sentence on July 9, 2003. Some 5 months later, on December 15, 2003, having served 116 days in jail without bail for 3 more offences of robbery, he was given a sentence of 4 years in the penitentiary, and a further 3 months for a break, enter and commit theft.

He was let out on statutory release, and in 2007 sentenced to a further penitentiary term for break enter and commit theft, to be served together with the remaining penitentiary sentence for the original robberies and break and enter from 2003. He was let out of the penitentiary on statutory release, and then having violated this release, yet again, on Nov. 19, 2007, he was recommitted to the penitentiary. On March 26, 2009, he was again let out on statutory release. He violated that release, again and was put back in jail, again, on August 6, 2009.

He stayed in jail until March 15, 2010, some 9 days before his first robbery which is before the court today. [ 11 ] Mr. Alfano’s criminal record is not an aggravating factor, but rather a factor in the analysis with respect to specific deterrence and rehabilitation. Over time, and given his age, the principle of rehabilitation, given the course of his life, assumes a far lesser role when one sees the sentences that have been imposed and the fact that he has not turned his life around before his 40 th birthday.

It is also quite obvious that specific deterrence is an incredibly important factor given that various penitentiary sentences have failed to deter, or the court would say even slow down, Mr. Alfano in his repeated pattern of robberies in the community. [ 12 ] Further facts relating to Mr. Alfano emerged from the picture painted in the pre sentence report which was ordered by the court. [ 13 ] Mr. Alfano is 39 years of age. Mr. Alfano described his family background and his relationship with his mother. His parents divorced when he was 4 years old.

He described his mother as lacking maternal concern for her children. When he was 9 years old, he rode to his father’s residence and lived with him. He has had a longstanding relationship with his father, who was interviewed for the pre sentence report and has continued to support his son, the offender. Mr. Alfano describes himself as being very close to his father and stepmother. [ 14 ] Mr. Alfano has his Ontario Secondary School diploma and has completed two college courses. He would like to study architecture. He has had limited employment history as a result of all of the time he has spent in jail. [ 15 ] Mr.

Alfano told the author of the report that he has struggled with a drug problem that began when he smoked marihuana as a teenager. By the age of 18 years, he related that he had started to use powder cocaine. He later tried crack cocaine and began a pattern of financing his addiction by stealing money and personal belongings from his family. When that was gone, he graduated to property offences reflected in the criminal record. His father intervened and was able, when Mr.

Alfano was 22 years of age, to enter Caritas, a faith-based residential treatment facility for men struggling with addiction and psychological issues. He remained there for 18 months and described this as a time when he did not engage in any illegal activities. By the time he was 26 years of age, he broke up with his girlfriend and relapsed. Since that time he has done a residential treatment program at the Salvation Army’s Turning Point programme and an intensive day programme at the Donwood Institute, together with attending Alcoholics Anonymous meetings. [ 16 ] Mr.

Alfano stated in this report that he has resisted assistance for his addiction for the last ten years, but now is determined to establish a sober lifestyle. He also wrote a letter to the court which was filed in evidence professing a desire to kick his drug habit. He stated he would like to go back to the program at Caritas, which he took almost twenty years ago. [ 17 ] Initially, to the author of the report Mr. Alfano minimized the gravity of the robbery offences and the emotional impact that may have been experienced by the victims.

He stated that his actions did not merit the sentence being put forward by the lawyers in this case. He later reflected that he is ashamed of the way he treated people, put them in jeopardy, and expressed regret to the author. His father describes his son as someone with a heart of gold, who would “give you the shirt off his back”, that is “sensitive, talented and intelligent.” This portrayal is contrary to the image Mr. Alfano created in this case, as the man who robbed the three victims. Clearly, Mr.

Alfano’s father sees him in a light very different from an objective assessment of his son’s character and behaviour in our community. In the context of the comments in the report, and throughout the time he was observed in court in terms of demeanour and in assessing the comments he wrote in the letter addressed to the court, the court does not find Mr. Alfano’s expression of remorse to be genuine, but rather in the category of being made in order to seek leniency in sentence. His actions over almost four decades of his life do not paint a picture of a sensitive man who regrets his actions and his robberies.

Quite the opposite. He states that he is finally prepared to effect positive change in his life. The court is not optimistic that Mr. Alfano is prepared to change his behaviour. If he does change his pattern and wish to improve his actions, it will be totally up to him as he will have available to him many programs in the penitentiary to deal with drug addiction. [ 18 ] Mr. Alfano tells the court he has lupus, although there is no medical evidence whatsoever before the court. [ 19 ] Mr. Alfano has entered a guilty plea to these charges.

That is to be considered by this court as an indication of remorse worthy of mitigation. However, this is tempered by the timing of the guilty plea. It was entered after a full exploration of the testimony of the victims and a police officer who arrested him, in the preliminary hearing. This court heard and saw these witnesses who were very strong in their evidence, in the context of strong identification of Mr. Alfano as the robber. He has nonetheless saved the

community calling these witnesses again at trial. Legal Parameters: [20] The maximum punishment for the offence of robbery is life imprisonment. [21] The court addressed with counsel the concern that for the offence of possession of a weapon for a dangerous purpose, thata stay should be entered pursuant to the principle in Kienapple, arising from the fact that the use of the weapon was a required ingredientfor the robbery offence at the small business. The court has entered a stay on this weapons count.

Joint Submission: [22] The Crown and defence have agreed upon a joint submission, after credit being given for the pre sentence custody, of afurther six years in the penitentiary. This is a weighty circumstance in my consideration. [23] It is clear that although the court is not bound by a joint submission as to sentence, the court is obliged to give it seriousconsideration.

The court ought not to reject the joint submission unless the sentence would bring the administration of justice intodisrepute [24] The court notes that the Court of Appeal for Ontario has released a number of judgments which have dealt with theimposition of sentence where there has been a joint submission, including R. v. Rubenstein (1987), (ON CA), 41 CCC(3d) 91; LTA ref’d 41 CCC (3d) vi, R. v. Dorsey, (ON CA), [1999] O.J. No. 2957 (C.A.) and R. v. Cerasuolo (2001), (ON CA), 151 CCC (3d) 445 (Ont. C.A.).

The court may only depart from a joint submission where it is consideredto be contrary to the public interest, and which if the court accepted the joint submission, would bring the administration of justice intodisrepute. This is a high threshold, and it is intended to give rise to confidence in a defendant, who gives up the right to a trial, that thejoint submission will be respected by the judge who imposes sentence.

Analysis: [25] Sentencing is an individualized process, where the trial judge must fashion a fit sentence, bearing in mind the principlesof proportionality and the fundamental principles of sentencing. The relevant statutory provisions are set out in sections 718 to 718.2 ofthe Criminal Code. The sentence must reflect the gravity of the offence and the degree of responsibility of the offender. Thepunishment must fit the crime and the offender. [26] The court considers the factors enumerated in s. 718.2 of the Criminal Code.

In this case, the court finds that deterrenceand denunciation assume a paramount role in the court’s consideration. Within the principle of deterrence, a sentence should be imposedto deter other potentially like-minded people from committing robberies. However, in Mr. Alfano’s case, there is the additional strongneed to impose a penitentiary sentence that will send a clear message to him that the court will no longer tolerate him committing furtherrobberies, particularly when sentences in the range of up to 5 years have not stopped or even slowed him down.

Protection of the publicbecomes an issue when the court sees that days after he finishes serving a lengthy penitentiary sentence for robbery, he is out and aboutin Toronto committing three more robberies, all within a couple of weeks of release. What else can the court do to stop Mr. Alfano? There are those that would argue that the only thing the court can do to protect the public is to lock him up in jail as long as possible. [27] While Mr. Alfano and his counsel want the court to consider the principle of rehabilitation, for an offender like Mr.

Alfano, just short of his 40th birthday, and after having been in and out of the penitentiary over and over in the past eleven years, thisprinciple assumes a position in the analysis of almost playing no role in determining a sentence for this offender and these offences. Ifrehabilitation is to happen, that will be up to Mr. Alfano. There is nothing the court can or will do in this case to assist in such a process,given the various community resources put towards his drug treatment, and the shorter sentences and periods of probation which did notrehabilitate him in the past. [28] Mr.

Alfano has served a period of pre sentence custody, which counsel agree should be credited on a one for one creditbasis. This period is 292 days.

This will be noted on the information and credit for this is taken into account before the court imposes itssentence today. [29] The joint submission put before the court is for the court to impose a further sentence of six years in the penitentiary,presumably to be concurrent on the second and third counts of robbery. [30] In making the proper determination for sentence, it is often helpful to determine a range of sentence that would beappropriate in a case such as this one. Bank robberies are serious offences.

A robbery where a threat is made, even in a note, that theoffender has a gun, is more serious than a robbery without a weapon. In this case, there were three separate robberies, on separate days. Banks are potentially vulnerable targets to people who come in while customers and tellers try to go about their daily business activities. One of the tellers in this case described the bank response to not fight, to not challenge, otherwise anyone in the bank could be at risk ofviolence or injury if things did not go well in response. Bank employees are afraid when robberies happen.

Robberies of banks tend toresult in lengthy sentences. Victims in this case were afraid. A weapon was brandished in the robbery at the small business. While drugdependency can sometimes be considered a mitigating factor, in this case the court does not find that Mr. Alfano has taken anymeaningful steps towards treatment, and in fact doubts whether he will ever try to deal with his drug problem, notwithstanding hisattempt a long time ago when he was 22 years of age. [31] For an offender such as Mr.

Alfano, with his record and his characteristics, the court is of the view that the appropriaterange of sentence would probably range, from a consideration of other cases dealing with robberies, with this type of record, bearing inmind the importance of the step principle for Mr. Alfano, a sentence if imposed after trial of over 8 years, ranging up to 12 years. In thiscase, counsel have agreed to a joint submission following the guilty plea of 6 years in the penitentiary plus credit for pre sentence

custody (of 292 days), which would be equivalent to a sentence of approximately 6 years and 9 ½ months. [ 32 ] Based on the importance of the joint submission in this case, which includes the position taken by the Crown as a representative of the community, a quasi-judicial officer, the court finds that although this sentence is lower than one would impose after trial, the court must ask the critical legal question of whether this joint submission of a sentence equivalent to 6 years and 9½ months is so low as to be contrary to the public interest, and which if the court imposed would bring the administration of justice into disrepute.

The court cannot find that it offends that standard in light of the guilty plea entered in this case. [ 33 ] Accordingly, after credit for pre sentence custody, the court imposes a six year sentence in the penitentiary for the first count of robbery, and six years concurrent on each of the second and third counts of robbery. Ancillary Orders: [ 34 ] The offence of robbery is a primary designated offence, pursuant to s. 487.04 of the Criminal Code .

The court considers s. 487.051 (2) of the Criminal Code and finds that the offender has not established that the impact of taking a DNA sample on his privacy and security of the person would be grossly disproportionate to the public interest in the protection and society and the proper administration of justice to be achieved through the early detection, arrest and conviction of offenders. If ever there was an offender for whom a DNA sample should be taken, it is clearly Mr. Alfano.

The court makes an order that a DNA sample be taken from him, in the event that his DNA is not currently on file with the authorities. [ 35 ] The court also makes a weapons prohibition order under s. 109 of the Criminal Code for life. [ 36 ] The court waives the victim fine surcharges in relation to these offences as Mr. Alfano is not likely to be employed at any time in the distant future. [ 37 ] That is the sentence imposed by this court. Released: March 4, 2011 Signed: “Justice Beverly Brown”