Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20230612 DOCKET: C67474
van Rensburg, Benotto and Copeland JJ.A.
BETWEEN
His Majesty the King Respondent
and
Mario Inacio Appellant
Counsel: Richard Litkowski, for the appellant Kristen Pollock, for the respondent
Heard: June 8, 2023
On appeal from the dangerous offender designation and indeterminate sentence imposed by Justice Katherine B. Corrick of the Superior Court of Justice on November 5, 2018.
Reasons for Decision
[1] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.
[2] The appellant was convicted of robbery, unlawful confinement, assault, threatening death and extortion. He was declared a dangerous offender and sentenced to an indeterminate period of incarceration. He appeals the designation and the penalty.
[3] The appellant submits that the trial judge erred in three ways: (i) by finding a pattern of repetitive or persistent aggressive behaviour within the meaning of ss. 753(1)(a)(i) and (ii) of the Criminal Code; (ii) by concluding that the behaviour was intractable; and (iii) by imposing a penalty of an indefinite term of imprisonment.
The pattern
[4] The Crown relied on four sets of predicate offences to demonstrate a pattern of violent offending:
- The appellant’s 2000 conviction for pointing a firearm, careless storage of ammunition, two counts of possession of unregistered restricted weapons and possession of a prohibited weapon;
- The appellant’s 2002 conviction for attempted murder;
- The appellant’s 2016 conviction for the predicate offences of robbery, extortion, two counts of forcible confinement, two counts of assault with a weapon, and two counts of threatening death; and
- The appellant’s 2016 conviction for robbery with an imitation firearm.
[5] The appellant submits—as he did before the trial judge—that the predicate offences lack the common element necessary to establish a pattern of behaviour. As set out in R. v. Wong, 2023 ONCA 118, at para. 42, the requirement for a pattern focuses on behaviour, not prior offences. Although the trial judge did not have the subsequently decided decision in Wong, she nonetheless appropriately decided this issue. At paras 155-158 she explained the behavioural pattern:
These differences relate to the details of the offences and do not change the nature of Mr. Inacio’s conduct. Mr. Inacio used a weapon to frighten and intimidate his victims in all of these offences. He threatened all of the victims with harm. Mr. Inacio used violence or the threat of violence during all of the offences, other than the point firearm offence, to make fast money.
These similarities establish the requisite pattern of repetitive behaviour that demonstrates Mr. Inacio’s failure to restrain his behaviour.
They also demonstrate a pattern of aggressive behaviour by Mr. Inacio. His degree of indifference to the foreseeable consequences to others of his behaviour is well-documented in the numerous psychiatric and psychological reports filed on this hearing.
In addition, Mr. McDowell [an intake assessment parole officer] testified that when he interviewed Mr. Inacio in November 2002, he described the attempted murder offence in a glib and matter-of-fact fashion. He showed little remorse for his actions. Mr. Inacio did not think that he had committed a serious offence because he too had been shot. He showed Mr. McDowell a small scar on his back. According to Mr. McDowell, Mr. Inacio was more concerned about his own safety in the institution than he was about the man he put in a wheelchair.
[6] These behavioural commonalities were clear and supported her conclusion.
Intractability
[7] The appellant submits that the trial judge erred by finding his conduct intractable and at a high risk of reoffending. He had recently stabilized and completed a number of programmes related to anger management and drug addiction. He claims his conduct was not insurmountable and that much of his past conduct occurred because he was not given the opportunity to avail himself of more programmes.
[8] The trial judge considered his positive steps, but had before her compelling expert testimony from two forensic psychiatrists, Drs. Derek Pallandi and Steven Cohen, who testified that he was at a high risk of reoffending violently. She concluded that the risk, combined with the appellant’s failure to restrain his behaviour, meant he is likely to cause death or injury to another person. These findings were reasonable and disclose no misapprehension of the evidence or other error.
[9] We conclude that the trial judge made no error in designating the appellant as a dangerous offender.
Penalty
[10] The appellant submits that, having been designated a dangerous offender, the trial judge should have imposed a determinate sentence followed by a long-term supervision order. He submits that the trial judge failed to give proper weight to the connection between aging and violent conduct. The appellant is 48 years old. He also submits that she placed too much weight on his PCL-R and VRAG scores.
[11] Again, the trial judge was entitled to rely on the expert evidence that the appellant posed a high risk to violently reoffend. Although she did not refer to the aging aspect referred to in the submissions, she made her decision on the totality of the evidence including the appellant’s poor insight, lack of remorse, lack of support in the community, long history of anti-social and violent behavior and poor compliance with community supervision.
[12] In summary, the decisions made by the trial judge were open to her on the evidence. We have not been shown, nor did we find, a reversible error.
[13] For these reasons, the appeal is dismissed.
“K. van Rensburg J.A.”
“M.L. Benotto J.A.”
“J. Copeland J.A.”