ONTARIO COURT OF JUSTICE DATE: 2022 01 10 COURT FILE No.: 21-45000-178; 21-45000-353
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Jessy MANDINO
Before: Justice Cidalia C. G. Faria
Heard on: January 6, 2022 Reasons for Sentence released on: January 10, 2022
Counsel: Leanna Guzzo..................................................................................... counsel for the Crown William Jaksa................................................... counsel for the accused Jessy MANDINO
Faria J.:
I. Overview
[1] On July 30, 2021 Mr. Jessy Mandino pleaded guilty before me to two counts of Break and Enter into two separate residences on two separate dates in January 2021. A request was made by both parties to adjourn sentencing as Mr. Mandino wished to obtain a Gladue Report and the Crown wished to obtain Victim Impact Statements. The matter returned before me for sentencing submissions on January 6, 2022.
[2] Mr. Mandino filed a letter authored by Aboriginal Legal Services (ALS) articulating they could not confirm Mr. Mandino to be of Aboriginal ancestry and so could not provide a Gladue Report. The Crown filed Mr. Mandino’s criminal record, the synopsis of the offences, and two Victim Impact Statements as exhibits as well as a casebook of authorities.
[3] The Crown recommends a sentence in the range of 3.5 to 4 years and Counsel on behalf of Mr. Mandino recommends a 2-year sentence.
II. Circumstances of Offence
[4] On January 7, 2021 Mr. Mandino entered the rear yard of a residence, shattered the rear sliding glass door, and entered the home. He went to the second floor and ransacked both bedrooms stealing numerous items. He was arrested on January 14, 2021 wearing the same clothes as he was wearing when caught on surveillance attempting to use the credit cards he had stolen from the home.
[5] On January 14, 2021 Mr. Mandino entered the rear yard of another residence and smashed the glass of the rear door. A 17-year-old resident of the home was upstairs. She locked herself in the bathroom and called police while Mr. Mandino ransacked her home and stole items. He was arrested outside her home.
III. Circumstances of Offender
[6] Mr. Mandino is 56 years old. At first blush, Mr. Mandino’s criminal record appears to be a defining descriptor of his life. First convicted of Break and Enter at the age of 16 on December 3, 1981, just over 40 years ago, he has amassed over 70 convictions since. He has been convicted 22 times for Break and Enter offences and has been sentenced to a total of 21.5 years for them. This is his 23rd and 24th conviction for Breaking and Entering. [1]
[7] The Gladue Report Mr. Jaksa requested was not created. Ms. Amanda General of Aboriginal Legal Services wrote that though ALS had interviewed Mr. Mandino, one of his sisters, and his mother, and then researched the nations and the territories referred to by his mother as the link to his Aboriginal ancestry, they were unable to write a report because firstly they are “unsure” about the specific nature of his Indigenous ancestry and secondly, they are unable to “address how being an Indigenous person has affected his life circumstances” which is the purpose of a Gladue Report. Ms. General was very clear however, that their position was in no way to be read as “stating that Mr. Mandino is not an Indigenous person” and that the fact they are unable to prepare a report to mean that “there are no Gladue-related issues counsel may wish to raise with the Court”. [2]
[8] I commend counsel, Mr. Jaksa, for taking on that opportunity and presenting to the court Mr. Mandino’s background in a detailed and comprehensive fashion.
[9] After having spoken to Mr. Mandino, his mother, his sister and his daughter, Mr. Jaksa submitted the following information about Mr. Mandino:
- Mr. Mandino is the oldest of 5 siblings.
- He was in the custody of the Catholic Children’s Aid Society from the age of 4 to 18 with a brief period at the age of 14 to15 when he lived with his mother and siblings. He spent only a few days at a time, birthdays, and Christmas, especially during his younger years, with his siblings and did not bond with them until his adolescence. He had no significant contact with his father since the age of 7 or 8, and even then, it was for a few hours a year. He last spoke to his father when he was in his 30’s and has had no contact since.
- Mr. Mandino’s mother, now 75, lost her own mother at the age of 3 and her father when she was 14. Her father insisted she was not Aboriginal though her paternal grandfather was Ojibway and her maternal grandmother was Aboriginal. He said that was “not who we are”. She told counsel she clung to that and was “proud not to be” Aboriginal. She was told not to relate to “that” side of the family. She only recently realized the extent to which she had internalized a “racist view towards being Aboriginal”. She indicated she had told Mr. Mandino about his Indigenous ancestry but that he would not listen. She blames herself for not having raised her son and referred to the Catholic Children’s Aid Society not allowing her to care for her children because she is not Catholic.
- Mr. Mandino had no sense of identity or family and struggled with addictions to alcohol and cocaine since the age of 15, using these substances to comfort himself. He only gleaned what family is by watching other families as he did not have his own.
- Mr. Mandino’s daughter confirmed that her Mandino side of the family is unable to hug or express affection.
- He only achieved a grade 8 education and struggled in school because of dyslexia. His employment experience is also limited though he worked briefly in landscaping in 2019.
[10] Mr. Jaksa also put forth recent developments in Mr. Mandino’s life that have had a traumatic, but profoundly motivating impact on his life. Mr. Mandino’s wife was murdered in 2018. Mr. Mandino’s nephew was also murdered in 2019. Two people close to him have died of opiate overdoses.
[11] As a result, after his release from prison in 2019 Mr. Mandino came back into his daughter’s life as her only parent. He went to counselling with his daughter as she needed to deal with the grief of the murder of her mother. He was able to clean up his alcohol and drug dependency and care for his grandchild for periods of time. He got a job.
[12] During his present incarceration Mr. Mandino has become connected to a social worker and has been pre-screened for the North York General Hospital Addictions Clinic.
IV. Position of the Parties:
[13] The Crown submitted the appropriate sentence is in the range of 3.5 to 4 years in the penitentiary minus presentence custody enhanced on a 1.5 basis. She emphasized the primary consideration for this court is the protection of the public given Mr. Mandino’s criminal record, followed by general deterrence and then specific deterrence. She stated breaking into a person’s home is a serious offence that requires a lengthy jail sentence particularly because Mr. Mandino’s criminal record is replete with numerous previous similar convictions. She noted Mr. Mandino was sentenced to 2 years on his last two Break and Enter convictions in 2018 and so a higher sentence is required for the same conduct. She relied on several cases all of which held this range to be appropriate for offenders who repeatedly broke into residential dwellings. [3]
[14] Mr. Jaksa on behalf of Mr. Mandino submitted a 2-year sentence is appropriate given the specific life experience of Mr. Mandino and what he argues are significant recent traumatic experiences that now motivate Mr. Mandino to stay out of jail so as to be available and supportive to his daughter, his grandchild, and his aging mother. He urges the Court to consider Mr. Mandino’s recent identification with his Aboriginal ancestry and the intergenerational trauma he has experienced even in the absence of a Gladue Report. Moreover, he submitted the global pandemic has created harsh conditions at the Toronto South Detention Center with significant lockdowns because of staff shortages and protocols to prevent the spread of the Covid-19 virus. These protocols have limited access to programs, telephone calls, and visits. There have been delays in receiving clean clothes and showers. However, Mr. Mandino has taken advantage of vaccines and has become vaccinated.
V. Relevant Factors
Criminal Record
[15] Mr. Mandino’s criminal record is a significantly aggravating factor to consider. Breaking and entering people’s homes and taking their property has been a way of life, a way to making a living, a way to get by, for over 40 years.
[16] The continuous pattern of offending was broken for a period of 3 years from 1996-1999. I do accept however, that the traumatic deaths of four people close to Mr. Mandino in a short span of time did have a positive affect on him in 2019. He was able to be out of trouble for a period of 18 months, get a job and be a support to his daughter. Though 18 months may not be much for most people, for Mr. Mandino given his life experience, this demonstrates a significant effort and commitment to live abiding by the law.
Seriousness of offence
[17] Breaking into dwellings has long been found to be a serious offence. It is usually described in terms of the violation people feel when their home, where they lay their head, as grand or humble as it may be, is broken into. Although property and possessions may and often do have financial value that is lost when stolen, it is not the economic or financial harm that lasts. It is the lost sense of safety, the psychological and emotional damage to the sense of security, the loss of objects that hold emotional value and memories, the sense of invasion into a private space.
Impact on victims
[18] In this case, the impact of Mr. Mandino’s offences were very significant. One impact was potently articulated by the 17-year-old victim who locked herself in the bathroom while he ransacked her home:
After the whole event, I had nightmares about the break in. These nightmares would usually end with the situation taking a turn for the worse: with me getting found and getting hurt. On some nights, I'd lay awake for hours, thinking about what happened. The whole scene would play in my head on repeat. All the fear I felt during the break in would keep coming back to haunt me. Additionally, every time there's a loud noise, from a nearby build site, or from the road, it makes me flinch. These noises remind me of the noises I heard when the offender was trying to break in, and while I locked myself in the upstairs bathroom. Moreover, if I walk by strangers that have a similar build to the offender, I start getting anxious, and move away as quickly as I can. My parents were also scared of letting me stay home alone for months, and once they did, I was paranoid that something would happen. One time, a family friend came over to say hello, and I was home by myself. It took me more than 5 minutes to open the door because I was terrified of opening it. Lastly, whenever I go out with my parents, and no one is left at home, I sometimes come home expecting to find shattered glass near the door and our house broken into. I now have a lot of fear surrounding strangers, and what they are capable of. [4]
[19] The impact of his breaking into the other home on that victim is just as clear:
All our valuables were gone, and our emotional items disappeared as well. I always carried my mom ’ s and best friend ’ s pictures with me in the wallet (we took it 12 years ago, right before I left my home country), but no longer able to see that…… Through this awful experience, our family has developed a tremendous fear towards our own home. Due to the mental trauma, we still lock up all the inside room doors before going out. When we are staying outside, even for a short time to go for a walk, we still are very anxious about our home…..The thought of having a stranger going through our belongings as well as entering our private space gives us chills every time we walk in through our front door…..Even with new alarms, new cameras and new locks, the bad memory always gives us anxiety and fear of "what if there is someone inside " when coming back to home…..My 12 year old son still hesitates to come to our home sometimes, so our parents are taking care of him in their home, most of the times. [5]
Guilty Plea
[20] In addition to these serious aggravating factors however, there are also mitigating factors. Mr. Mandino pleaded guilty before setting a trial date and took responsibility for his actions.
[21] His guilty plea obviated the attendance and testimony of witnesses who would have had to re-live the experience to re-tell it in court. This saved them considerable distress and inconvenience.
[22] In addition, Mr. Mandino’s guilty plea at this time in particular, saved significant judicial resources when the criminal system is under tremendous pressure as a result of the effect of the Covid-19 pandemic on resources, staffing, backlog, and safety protocols to name just a few.
Substance Dependency
[23] Although not elaborated on, at the time of the guilty plea it was mentioned Mr. Mandino was intoxicated at the time of the offences, and during submissions, counsel explained Mr. Mandino has struggled with addictions since the age of 15. Breaking into these homes and stealing items did not appear to be a sophisticated plan or motivated by greed, but rather related to the issue of addiction and thus relevant to Mr. Mandino’s moral culpability at the time of the offences.
Covid -19 impact on incarceration
[24] The Court is mindful, that just as pandemic restrictions have significantly impacted employment, organizations, education, social interactions, family gatherings, and all manner of public and private lives, limiting liberty and mobility, these restrictions have had a particularly harsh effect on those living in the congregate setting of incarceration.
[25] Mr. Mandino committed these offences during a particularly restrictive period of the pandemic, January 2021. We are now, again, under a similarly restrictive period because of the fast spreading Omicron variant. Schools are online again, and indoor dining is closed again. Mr. Mandino has experienced significant restrictions while incarcerated. Indeed when a man who has spent much of his life in custody tells the court “I’ve done time all my life – this is the worst time I’ve ever done in my life”, the court accepts that conditions in custody are particularly severe.
Gladue Principles
[26] Section 718.2 (e) of the Criminal Code codifies the restraint principle with express reference to the circumstances of Aboriginal offenders. This imposes an affirmative obligation on the court to inquire into the relevant circumstances of an offender with Indigenous ancestry, including the types of sentencing procedures and sanctions which may be appropriate because of the Aboriginal heritage or connection.
[27] Mr. Mandino before me raises a challenging situation. On the one hand, he informs Aboriginal Legal Services that he has just learned of his Indigenous ancestry, and they are unable to either confirm the assertion or how Indigenous ancestry has affected Mr. Mandino’s life circumstances. As such the court’s ability to consider Mr. Mandino as a person of Indigenous ancestry is curtailed.
[28] On the other hand, Mr. Jaksa’s inquiries into Mr. Mandino’s background and conversations with his closest family could be said to demonstrate why Mr. Mandino’s Indigenous ancestry is undocumented – the non-Indigenous side of his family did not accept their Indigenous connection and in fact propagated its annihilation. The very storyline of Mr. Mandino’s mother’s experience and his own experience speak to how his Indigenous ancestry and the history of anti-Indigenous racism affected his identity, how he was parented, his early challenges and his way of coping with the effect of that history.
[29] Mr. Jaksa submitted Mr. Mandino’s life has been significantly impacted by anti-Indigenous racism and inter-generational trauma. It caused a loss of identity and is connected to the reason Mr. Mandino is before the Court today. I accept his submission and find that Gladue factors do apply to the sentencing of Mr. Mandino.
[30] Unfortunately, there were no programs, resources, proposals, or options put forth that addressed Mr. Mandino’s unique position as a recently self-identified Indigenous person. There was nothing submitted that would address his history and attempt to assist in his rehabilitation with a new context of insight to move forward – even when the court specifically inquired what was Mr. Mandino’s plan moving forward.
[31] As a result, Mr. Mandino’s self-identification as an Indigenous person and his life experience is considered as a factor relating to his moral culpability but not of assistance in the consideration of his rehabilitation possibilities.
VI. Analysis and Sentence
[32] It is well known that the sentence this court imposes must be proportionate to the gravity of the offence, in this case serious, and the degree of responsibility of the offender, in this case, attenuated by both substance use and Indigenous ancestry.
[33] The court must increase or reduce a sentence to account for relevant aggravating or mitigating circumstances including evidence the offence had a significant impact on a victim; it should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.
[34] In this case the sanction must denounce Mr. Mandino’s unlawful conduct. His ransacking victim’s homes and destroying the sanctity of their private space, damaging their psychological security, and confiscating their sense of safety must be reflected in the sentence.
[35] The criminal justice system uses incarceration as the highest form of sanction to demonstrate denunciation and to deter an offender and others in the community from committing these offences. However, when it comes to denunciation and deterrence, Mr. Mandino’s record demonstrates one point very clearly: incarceration does not deter him from breaking into people’s homes.
[36] A sentence can provide an offender with an opportunity to make reparations to the victim, but in this case, there is no way Mr. Mandino can repair the harm he has caused, either in financial terms, the least of the injury he has caused, or in psychological terms of healing. He is not yet in a place where he can move beyond his own pain to see the pain he has caused the victims in this case.
[37] In terms of rehabilitation, Mr. Mandino has not submitted a plan that substantively deals with the numerous and complex challenges he faces today and that have led to his life of repeated incarceration. This is not to say however, that there is no intention to rehabilitate. Indeed, the court accepts that Mr. Mandino’s newly acquired experience as a parent of an adult child who needs him in her time of grief has, and can, motivate him to address his demons with alcohol and drugs. But those are not his only challenges, and those are severe enough and long standing enough that it is unlikely he can overcome them alone without structured, consistent, and professional support. As a result, even though this court does believe in Mr. Mandino’s potential for rehabilitation, there is nothing more than a pre-screened referral to a hospital addictions clinic to rely on.
[38] Having heard of Mr. Mandino’s background and the challenges he has faced and continues to face, as well of as from Mr. Mandino himself, it is more than unfortunate that the bluntness of incarceration to protect the public and separate Mr. Mandino from the community so as to protect them from his persistent offending is the tool most often used, and the one most significantly at play in today’s sentencing.
[39] I have considered the nature and circumstances of the offences, their gravity, Mr. Mandino’s legal responsibility, his criminal record, the impact of the harm he caused, his personal history, current circumstances, Gladue factors, the applicable mitigating and aggravating circumstances and the purpose and principles of sentencing as drawn from the authorities and the Criminal Code.
[40] Given Mr. Mandino’s criminal record, these offences attract a significantly lengthy period of incarceration. In fact, the Crown’s position of 3.5 to 4 years is very reasonable and demonstrates restraint that considers Mr. Mandino’s specific background, Covid restrictions for those in custody, and the mitigating features of a guilty plea. The lack of structure and a plan to assist Mr. Mandino with his many issues does not enable to court to explore very much of a reduction in that recommendation, and certainly not to the level of giving him the same sentence of 2 years he last received as recommended by counsel. I will, however, reduce the Crown’s recommendation somewhat, to recognize Mr. Mandino’s effort to get clean, get a job, support his family and deal with the traumatic loss of his loved ones in 2019.
[41] Mr. Mandino, I sentence you to 3 years in the penitentiary minus pre-sentence custody of 1-year x 1.5 enhanced to be 18months for each offence of the two counts of Break and Enter to be served concurrently. I am ordering you to provide a sample of your DNA in relation to each offence. Once it is confirmed by the authorities that your DNA is already in the databank, you will simply be processed in furtherance of the order and no actual sample will be taken. The victim fine surcharge is waived as you are not working, and it would cause you undue hardship.
Released: January 10, 2022 Signed: Justice Cidalia C.G. Faria
[1] Exhibit 1: Criminal Record
[2] Exhibit 3: Aboriginal Legal Services letter, October 5, 2021, authored by Amanda General
[3] R. v. Alves, 2008 ONCJ 2597: Mr. Alves was a 25-year-old with 65 convictions, 20 of which were Break and Enter. He was convicted after a trial of break and enter a dwelling with no one home as well as breaches of probation. He was sentenced to 4.5 years minus pre-sentence custody. R. v. Campbell, 2011 ONCJ 593: Mr. Campbell was a 29-year-old who pleaded guilty to his 25th and 26th residential Break and Enter. He had a challenging childhood, a mental health diagnosis and was already serving a sentence. He was sentenced to 30 months on each offence consecutive for a 5-year sentence. R. v. D.R.B., 2018 ONCJ 4849: Mr. DRB was 37 years old and with an associate broke into a residence, and then went back again on bright Saturday afternoon. He had a bad record, a 12-year gap, and then relapsed into substance use after his father died. He had positive rehabilitation prospects, he had children, and a gap in his record. He was sentenced to 9 months. R. v. Douglas, 2014 ONSC 1946: Mr. Douglas was a 48 year- old living on the street, with a year university education, who was convicted of his 22nd residential Break and Enter. He had family support. His sentence was reduced from 4.5 years to 2 years less a day because he volunteered for difficult cleaning jobs at the Toronto East Detention Centre.
[4] Exhibit 4: Victim Impact Statement, January 3, 2022, A.G.
[5] Exhibit 2: Victim Impact Statement, July 28, 2021, J.Y.