Ontario Court of Justice

Date: 2019-01-07

Court File No.: Niagara Region 998 17 W0849 & 998 17 W0850

Between:

Her Majesty the Queen

— AND —

Paolo Rego and Mario Rego

Before: Justice J. De Filippis

Heard on: December 4, 2018

Reasons for sentence released on: January 7, 2019

Counsel:

• Mr. Morris, counsel for the Crown
• Mr. Root, counsel for the defendants

Reasons for Sentence

De Filippis, J.:

[1] The defendants were found guilty, after trial of assault causing bodily harm. Paolo Rego was also found guilty of uttering threats. I rejected the version of events they testified about and accepted that of the victim and his spouse. The following summary of my findings will suffice for the present purposes.

[2] The victim, Mr. Federico Procopio, is 62 years old and self-employed in the construction industry. He and Mr. Paolo Rego were once business partners; together they purchased the Welland Inn in July 2015. The victim said he sold his interest in that hotel in March 2017.

[3] On February 15, 2017 the victim drove a motor vehicle, with his spouse, Ms. Amanda Poulin, as a passenger to the Welland Inn. He explained they did so to ensure that all was in order for the property to be sold. They arrived around 6 PM but did not linger as Ms. Poulin was hungry. They returned after dinner at about 10 PM and drove near the front doors and stopped. It was dark and all lights in the building were shut off. The victim found this odd and telephoned another investor in the hotel purchase for an explanation. The latter told him she did not know why the lights had been turned off.

[4] While making these inquiries, the offenders and a third person, ran to the victim's car and banged on it. As Paolo Rego shouted, "Let's kick the shit out of this piece of shit", Mario Rego and the other man pulled the victim from his car. He fell to the ground and hit the back of his head. While on the ground he was kicked in the face by one or more of the three men. At some point during this incident, Paolo Rego accused the victim of having "stolen food from his table" and threatened to kill him. He also shouted that he would "take care of Amanda [Poulin] and ensure she would remember this day as long as she lives".

[5] Ms. Poulin exited the car and tried to assist her spouse by pulling Mario Rego away. She heard Paolo Rego scream "kick him harder, the son of a bitch, you stole from my daughter". He also said to her, "you're next". Ms. Poulin shouted for help. She elbowed Mario Rego and he hit her back. After the assailants left, she helped Mr. Procopio get to the hospital. While there, she took photographs of his injuries; they depict marks on the back of his head and nose, a black eye, and bruises to his knee and inner thigh.

[6] I have reviewed victim impact statements prepared by Mr. Procopio and Ms. Poulin. Both continue to suffer emotionally. In addition, Mr. Procopio reports that he has a permanent scar on his nose and now experiences migraines that his doctor suspects are due to the blows to his head. His glasses were damaged during the attack; a new pair will cost $300.00. Moreover, the moulding was ripped from the driver's doorway and was replaced at a cost of $317.00. The most significant expense is that related to dental work. A previously installed bridge, with three teeth, was knocked out during the attack. A dentist has estimated the cost of repair to be in excess of $8,500. To date, this dental work has not been undertaken because Mr. Procopio is on blood thinners due to other medical issues. He does not have insurance for any of these claims.

[7] Paolo Rego is 48 years old and is self-employed with real estate investments. Mario Rego is 44 years old and employed as an electrician. Neither man has a criminal record. I have considered 26 letters provided to me by defence counsel. They are from family, friends, business associates, and local organizations. These letters attest to the fact that the offenders are well regarded by their peers and have contributed much to the community, including as volunteers for charitable endeavours.

[8] The Crown and Defence provided me with helpful case law. These cases make it clear that the appropriate sentence is shaped by the nature of the offence and offenders.

[9] The Crown submits that the appropriate range of sentence is two to six months' jail or, in the alternative, a longer conditional sentence order. Counsel stressed the need to denounce the crimes and deter others. The Crown also seeks orders with respect to DNA and the possession of weapons.

[10] The Defence argues that the offenders should be discharged or, in the alternative, that sentence be suspended. It is said that the offenders acted out of character in violently responding to the breakdown of a business relationship with Mr. Procopio. The restitution claims for the glasses and car moulding are conceded. However, the claim for dental expenses is disputed because there is no documentation to support it.

Sentencing Principles

[11] Section 718 of the Criminal Code provides as follows:

The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 acknowledgment of the harm done to victims or to the community.

[12] Parliament has given judges the discretion to avoid the normal consequence of a finding of guilt. Section 730 provides that,

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2)

[13] This is not a case in which the Defence can point to the mitigating effect of a guilty plea as an expression of remorse. However, both offenders apologized for their misconduct at the sentence hearing. I have the impression that they are genuinely sorry. Moreover, Defence counsel is correct to point out that both offenders are entitled to rely on their otherwise good character. Nevertheless, a discharge is not in the public interest given their roles in a violent and unprovoked attack that has caused personal suffering and financial loss.

Sentencing Decision

[14] In balancing the aggravating and mitigating factors in this case, I conclude that incarceration – be it in jail or by way of house arrest – is not required. The aforementioned principles are best served by suspended sentence and probation on terms that include full restitution to Mr. Procopio. In addition, having regard to the greater role played by Paolo Rego in encouraging the attack and threatening both victims, I am of the view that he should perform community service work. Both offenders will be subject to the ancillary orders requested by the Crown.

[15] With respect to both offenders, sentence is suspended and they will be on probation for 18 months. In addition to the statutory terms, both will report as required to a probation officer and make restitution to Mr. Procopio as follows:

First, a total of $617.00, for the replacement of glasses and car moulding, to be paid within 60 days.

Second, the reasonable costs, not to exceed $10,000, for dental work to repair damages directly caused by this assault, provided that such work is completed within 12 months and confirmed in an original invoice issued by a qualified dentist. In such a case, the cost is to be paid within 90 days of the receipt of that invoice by the probation officer. The victim may provide the invoice directly to the probation officer or through the office of victim/witness services.

The offenders are jointly and severally responsible for all restitution. Should there be any dispute about the dental claim, the Crown, offenders or probation officer can bring those issues to my attention within the 18 month period in question.

Paolo Rego is also ordered to perform 100 hours of community service work, to begin within 60 days, and to be completed at not less than 8 hours per month.

[16] Both offenders will provide a sample of their DNA and are subject to a weapons prohibition, pursuant to s. 110 of the Code, for a period of five years.

Released: January 7, 2019

Signed: Justice J. De Filippis

Footnote

[1] Reasons were delivered on August 9, 2018 and reported at R v Rego, 2018 ONCJ 562. The delay in sentencing is primarily due to the fact that the defendants discharged trial counsel and retained present counsel for the hearing.