Court Information

Ontario Court of Justice

Date: September 25, 2020

Court File No.: Region of Niagara 998 18-3622

Between:

Her Majesty the Queen

— and —

Lee Barlow

Before: Justice J. De Filippis

Heard: July 29, 2020

Reasons for Sentence Released: September 25, 2020

Counsel:

• Mr. Morris, counsel for the Crown
• Mr. Delisio, counsel for the accused

Reasons for Sentence

De Filippis, J.:

Admitted Facts

[1] The defendant and the victim, Mr. Danilo Rakocevic, were once friends. On the day in question the victim joined the defendant and others at his home and they consumed alcohol. At 2:17 am, the police were called to this area because three to four men were causing a disturbance. They were cautioned and the police left. Twenty minutes later, the police were again called to the scene with a report that the men appeared to be fighting and that one man was laying on the road, possibly dead.

[2] On arrival, the police found the victim lying on the road unconscious next to the open driver's door of a pick-up truck. The truck appeared to have struck the rear end of a second vehicle in front of it. The victim was bleeding profusely from the left side of his head. The defendant was observed to be standing over the victim trying to wake him. He told the police that they had been fighting. He claimed the victim had assaulted him.

[3] The police interviewed neighbors and reviewed a video of the events. The result of these inquiries established the following facts: The defendant pushed the victim towards the driver's seat of his truck. The engine was running. The two men struggled and then the defendant dragged him back out of the truck and threw him onto the pavement. He then kicked and punched the victim to the head. During these events, the truck rolled forward and collided with another vehicle. Following this, the defendant kicked the victim "soccer-style" three times followed by a stomp and multiple punches. He then dragged the victim's unconscious body back to the driver's side of the truck and attempted to put him in the driver's seat. The victim's 11-year-old son was present for these events and went to check on his father. The defendant continued in his efforts to put the victim into the driver's seat of the truck but dropped him, causing the victim to hit his head on the pavement.

[4] The victim was air lifted to Hamilton General Hospital in critical condition with a fractured hand, facial and orbital fractures, a swollen left eye and a spine fracture.

The Presentence Report

[5] The defendant is 45 years old, having been born in England. He immigrated to Canada with his parents when he was seven years old. He has a criminal record that includes convictions for possession of a weapon and assault causing bodily harm. His father has dementia and he helps his mother care for him. He is married to a woman with three children of her own and they have a 10-month-old daughter together. He is described by his spouse as a good husband and father. He owns a welding and pipefitting business. He acknowledges that he had had too much to drink on the night in question, but denies alcohol is a problem. However, Ministry records suggest that alcohol has been a factor in some of his prior convictions. He accepts responsibility for his actions but says what happened is not a reflection of his true character. He is concerned about how going to jail will impact the care of his father and his business (and employees).

The Victim Impact Statements

[6] Ms. Vida Rakocevic is the victim's mother. She came to Canada in 1973 to join her husband. She started work within one week and has worked ever since. She continues to do so at the age of 76. In 1992 her husband died and she was left with care of her young children. She worked 70 hours a week to provide for her family. Her son, the victim, has two children, one of whom is autistic. With respect to the latter, she said, "I do not know if he is ever going to be able to take care of himself without our help and his father is not ok physically or mentally. When he was so cowardly beaten unconscious something happened to his brain and it is not the same… he is in pain all the time." She said "I will never forget the day when I was told I may never see my son alive again, my heart almost stopped…..My life is never going to be the same and I know my son Danilo is not ok and is never going to be the same again…"

[7] Ms. Dee Iannarelli is the victim's sister. She said "I will never forget the fear the anxiety the inability to breathe… this is when I and my husband were told that my brother had been airlifted to Hamilton he had been badly beaten….This has for life ruined my brother. His brain has been damaged and he doesn't remember things… . I feel angry sad frustrated my anxiety is high my worry is high I cannot have peace".

[8] Mr. Guy Iannarelli is the victim's brother-in-law. He is upset at seeing his wife, mother-in-law, and nephew worry about the well-being of the victim. This has caused him stress and difficulties in sleeping.

[9] Mr. Danilo Rakocevic is the immediate victim in this matter. He reports that he is in constant pain in the neck with severe headaches, his eyes are unduly sensitive to light, he has trouble remembering things and must often sit or lay down to obtain some relief. Sometimes, he is barely able to conduct routine daily activities. His broken nose did not heal well, with the result that it compromises his breathing. He lost several crowns on his teeth and he cannot afford to replace them. He had to move into the home of his sister and brother-in-law because he could not safely use the stairs in his home. He has not been able to be a reliable worker and must often call in sick. This has caused great anxiety as he does not know how he will provide for his family, especially his autistic son.

Sentencing Analysis

[10] The Crown and Defence provided me with relevant case law. Both agree that R v Tourville, 2011 ONSC 1677 is instructive. In that case, Justice Code sentenced an aboriginal man to 21 months in jail after finding him guilty of using excessive force during a consent fight. The court noted as follows:

[27] The parties have helpfully provided me with a large number of sentencing cases, dealing with the offence of aggravated assault. That offence, contrary to s. 268 of the Criminal Code, carries a maximum sentence of fourteen years imprisonment. The cases disclose a wide range of sentences. At the bottom end is an exceptional case like R. v. Peters, 2010 ONCA 30, 250 C.C.C. (3d) 277 (Ont. C.A.) where an Aboriginal offender received a suspended sentence and three years probation on her guilty plea to aggravated assault. She was twenty-six years old with no prior adult record. She had used a broken beer bottle in the assault, during a bar room dispute, causing serious facial lacerations to the victim. The "Gladue report" disclosed a very difficult upbringing in a violent and abusive home, leading to alcoholism and drug abuse. By the time of sentencing, she had obtained employment and was making real progress in counseling for her substance abuse problems. Some of these features are not dissimilar to the case at bar.

[28] In the mid-range are cases where high reformatory sentences have been imposed of between eighteen months and two years less a day. These cases generally involve first offenders and generally contain some elements suggestive of consent fights but where the accused has resorted to excessive force. See: R. v. Chickekoo, 2008; R. v. Moreira; R. v. Basilio, 175 C.C.C. (3d) 440 (Ont. C.A.).

[30] At the high end of the range are cases where four to six years imprisonment have been imposed. These cases generally involve recidivists, with serious prior criminal records, or they involve "unprovoked" or "premeditated" assaults with no suggestion of any elements of consent or self-defence. See: R. v. Scott, [2002] O.J. No. 1210 (C.A.); R. v. Thompson, [2005] O.J. No. 1033 (C.A.); R. v. Vickerson, 199 C.C.C. (3d) 165 (Ont. C.A.); R. v. Pakul, [2008] O.J. No. 1198 (C.A.).

[11] The Crown suggests this case falls within the mid to high range identified in Tourville, as the defendant is not young and has a prior conviction of assault causing bodily harm. Counsel points out that this assault occurred in the presence of the victim's young son and the guilty plea occurred on the day of trial.[1] The Crown submits that the appropriate sentence is one of three years in jail.

[12] The Defence argues that this offence comes within the low and mid-range identified in Tourville. Counsel submits that "it's not clear if this was an unprovoked attack" and it may be that victim was a difficult person to remove from the property. The defendant suggested to the author of the presentence report that the victim was a threat to his family. Counsel notes that a guilty plea, even on a trial date, is mitigating. Defence counsel stated that "the best-case scenario is a 90-day intermittent sentence as it would allow him to provide for family and his employees". In the alternative, he seeks a sentence of six months in custody.

[13] On the record before me it is difficult to determine if there is an air of reality to the defendant's claim that the victim provoked him and posed a threat to his family. At some point the parties were fighting. Both had consumed alcohol and the defendant concedes he was intoxicated. Whatever the background, it is clear the defendant used excessive force; he engaged in a brutal and prolonged attack that has resulted in serious and life altering injuries. The impact of the crime has significantly affected the victim's family, including a special needs son. There is little to balance these aggravating factors. The guilty plea is mitigating, but less so as it was entered on the day of trial. In addition, I consider the defendant's lessened moral blameworthiness due to his intoxication.

[14] The principles of sentencing are set out at section 718 of the Criminal Code. In this case, denunciation and deterrence – both, general and specific – are the factors to be emphasized. The sentence I impose is intended to condemn this senseless act of violence, serve as a warning to others, and show the defendant that he will pay a price if he continues in assaultive behavior. I regret the impact this may have on the defendant's father and employees, but these considerations cannot stand in the way of a just sentence.

[15] I agree with the Crown that this case falls within the mid to upper end of the ranges described in Tourville. In all the circumstances, I conclude that an appropriate sentence is two years in jail. This will be followed by a period of probation for three years. In addition to the statutory terms, he will not associate or communicate, directly or indirectly with the victim, his spouse and children, or his mother, sister and brother-in-law.

[16] The defendant is bound by an order, under section 109 of the Criminal Code banning him from possession of weapons as defined therein. He will provide a sample of his DNA. He will pay a victim fine surcharge in the amount of $200.00.

Released: September 25, 2020

Signed: Justice J. De Filippis

[1] The guilty plea was initially entered before a visiting judge to this jurisdiction. On consent of that judge, and the parties, the plea was re-entered before me.