COURT FILE NO.: CR12-7000140

DATE: 20120730

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

KIMRON BENGY and EDWIN MODESTE

Counsel:

Ms. M. Scott and Mr. R. Wright, for the Crown

Mr. A. Bernstein and Ms. S. Smith for Mr. Bengy

Mr. M. Moon and Ms. E. Heath for Mr. Modeste

SENTENCING SUBMISSIONS HEARD: June 27, 2012

FORESTELL J.

REASONS FOR SENTENCING

Overview

[1] Kimron Bengy was tried on an indictment charging him with the second degree murder of Andy James and with the second degree murder of Brandon Ramdeen. Edwin Modeste was charged on the same indictment with the manslaughter of Brandon Ramdeen.

[2] Andy James died on June 21, 2009 as a result of a stab wound during an altercation. After Andy James was stabbed, another fight ensued in which Brandon Ramdeen was fatally stabbed. Following a trial, the jury found Mr. Bengy not guilty of the second degree murder of Andy James, but guilty of the second degree murder of Brandon Ramdeen. It found Mr. Modeste guilty of the manslaughter of Mr. Ramdeen.

[3] At trial, it was alleged by the prosecution that Mr. Bengy stabbed Mr. Ramdeen while Mr. Ramdeen was overpowered by Mr. Modeste and others. Mr. Bengy argued that he acted in defence of himself and in defence of Mr. Modeste. Mr. Modeste argued that he acted in self-defence. Mr. Modeste also argued that to the extent that he was involved in the fight with Mr. Ramdeen, it was a consensual fight.

[4] The jury, by its verdict, rejected the argument of Mr. Bengy that he acted in self-defence or defence of Mr. Modeste when he stabbed Mr. Ramdeen. The jury also rejected the arguments of Mr. Modeste that he acted in self-defence or that the fight was consensual.

[5] I must now determine the appropriate period of parole ineligibility for Mr. Bengy and the appropriate sentence for Mr. Modeste.

[6] The circumstances of the offence and the impact of the offence on the victim’s family are relevant considerations to both the sentencing of Mr. Modeste and the parole ineligibility period for Mr. Bengy. I will first address those two areas and I will then separately address the circumstances of each offender, the applicable principles of sentencing, the range of sentence and my decision with respect to each offender.

Circumstances of the Offence

[7] In order to sentence Mr. Bengy and Mr. Modeste, I must, to some extent, determine the facts of the offence. As stated by McLachlin C.J. in R. v. Ferguson[^1]:

The appropriateness of a sentence is a function of the purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code as applied to the facts that led to the conviction.

This poses a difficulty in a case such as this since, unlike a judge sitting alone, who has the duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

Two principles govern the sentencing judge in this endeavour. First, the sentencing judge “is bound by the express and implied factual implications of the jury’s verdict.” The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty…and must not accept as fact any evidence consistent only with a verdict rejected by the jury”.

Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts. In so doing, the sentencing judge may “find any other relevant fact that was disclosed by the evidence at the trial to be proven.” To rely upon an aggravating fact, or previous conviction, the sentencing judge must be convinced of the existence of that fact or conviction beyond a reasonable doubt; to rely upon any other relevant fact, the sentencing judge must be persuaded on a balance of probabilities. It follows from the purpose of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be imposed in the case at hand. The judge should first ask what the issues on sentencing are and then find such facts as are necessary to deal with those issues. [citations omitted]

[8] The events in this case occurred following a cruise on the Toronto Harbour. At the end of the cruise there was a confrontation between Leon Alexander and Andy James. Mr. Alexander was removed from the boat. After he was removed from the boat, he again confronted Andy James in the parking lot. There was an altercation that followed this confrontation. It is not necessary for the purposes of the sentencing for me to decide the precise role played by the participants in that fight. What is relevant is that Edwin Modeste, Kimron Bengy, Leon Alexander, Anski Julien and Edmund Benjamin were all in the vicinity of the fight. Edwin Modeste was observed to be attempting to end the fight.

[9] Andy James was stabbed in the fight and later died from his injuries.

[10] Within minutes of the fight with Andy James ending, Edwin Modeste was confronted by Dexter Regis, a friend of Andy James, who asked him why he ‘stabbed the guy’. Mr. Modeste told Mr. Regis that he did not stab him. At this point, Mr. Regis was accompanied by Collins George, Brandon Ramdeen and other friends of Andy James. Dexter Regis had armed himself with a baseball bat. The men in the group that went to confront Mr. Modeste were angry.

[11] Brandon Ramdeen next confronted Mr. Modeste. I find that the other men from the group that went to confront Mr. Modeste were near Mr. Ramdeen when he approached Mr. Modeste. By this point, Mr. Modeste was with a group of his own friends, including Edmund Benjamin, Leon Alexander, Kimron Bengy and Anski Julien – the same men who had been present minutes earlier during the altercation with Andy James.

[12] Within seconds of Mr. Ramdeen approaching and confronting Mr. Modeste, Mr. Ramdeen was overpowered by Mr. Modeste and three to five other men. Again, it is not necessary for me to decide the precise role played by those involved in the fight other than Mr. Modeste and Mr. Bengy.

[13] I find that Mr. Modeste knew that Mr. Ramdeen was approaching him prior to the confrontation. He knew that Andy James had been stabbed in the earlier fight as a result of the question put to him by Dexter Regis. He had been at the earlier fight and knew that the confrontation with Andy James had involved some of his friends. Mr. Modeste chose to engage in an assault on Brandon Ramdeen in circumstances where he knew that Mr. Ramdeen was outnumbered and in circumstances where he knew that the participants in the assault were the same participants who had just been involved in a fight that led to a stabbing.

[14] I find that Mr. Modeste struck Mr. Ramdeen. He was observed striking Mr. Ramdeen in the lower part of his body by Eric Mitchell. He did so while others were also striking Mr. Ramdeen.

[15] Mr. Bengy entered the fight after it was ongoing and at a point when Mr. Ramdeen was overpowered. Mr. Bengy had brought a knife to the cruise. He had the knife in his hand when he entered the fight. He immediately stabbed Mr. Ramdeen who was unarmed and who was attempting to defend himself from the assault. He stabbed Mr. Ramdeen in the heart.

[16] In addition to the two stab wounds to Mr. Ramdeen, the pathologist found serious injuries to the face, chin and jaw of Mr. Ramdeen, bruises to the scalp and abrasions to his hands and elbow. Witnesses described Mr. Ramdeen falling face first to the pavement after he was stabbed. The injuries to his face, chin and jaw were likely caused by this fall. I am not satisfied beyond a reasonable doubt that they were caused by the assault. The remaining bruises and abrasions were caused by the assault.

Victim Impact

[17] Victim impact statements were filed and read to the Court. Brandon Ramdeen’s mother, sisters, girlfriend and close friend all provided the Court with statements that set out the impact of this offence. The statements disclose the central role that Brandon Ramdeen played in his family and the profound loss suffered by those close to him.

[18] They have lost his companionship, his love and his contribution to their family. Their pain over the loss of Mr. Ramdeen is greater knowing that he died violently, as a result of the brutal and cowardly actions of Mr. Bengy and Mr. Modeste.

[19] The effect upon them, as disclosed by their victim impact statements, has been significant. I have considered the impact of the offence as disclosed by the victim impact statements in determining the appropriate sentence and parole ineligibility period while recognizing that no sentence can compensate the family and friends of Brandon Ramdeen for their loss.

Kimron Bengy

Positions of the Parties

[20] The sentence for second degree murder is life imprisonment. The only issue that I must decide is whether the parole ineligibility period ought to be longer than the minimum period of ten years. The Crown seeks a period of parole ineligibility of 12 years. The defence submits that a period of ten years is appropriate. It is important to remember that the end of the period of parole ineligibility is not the release date for an offender. Whether Mr. Bengy is granted parole after the parole ineligibility period will be up to the parole board and will depend on a number of factors, including the conduct of Mr. Bengy while imprisoned.

The Recommendation of the Jury

[21] I am required by section 745.4 of the Criminal Code to take into account the jury’s recommendation concerning parole eligibility. Nine of the jurors recommended 10 years before eligibility for parole. Three of the jurors recommended 15 years.

Background and Character of Mr. Bengy

[22] There is very little evidence of the background and character of Mr. Bengy.

[23] Mr. Bengy was 19 years-old at the time of the offence and 22 years-old at the time of sentencing. He has no criminal record.

[24] Mr. Bengy was born and raised in St. Vincent and came to Canada in 2006. He lived with his sister when he came to Canada. He has worked in construction and was working full time when he committed this offence. He has two young children.

Sentencing Principles

[25] In deciding the period of time before which Mr. Bengy will be eligible for parole I must take into account the principles of sentencing set out in sections 718, 718.1 and 718.2 of the Criminal Code, R.S., 1985, c. C-46, which set out a number of principles and factors. These include rehabilitation, deterrence of the offender and others from committing offences, separating offenders from society where necessary, denunciation of unlawful conduct and acknowledging the harm done to the victim and the community. The sentence must be proportional to the gravity of the offence and degree of responsibility of the offender.

[26] The sentencing purposes to be emphasized, in the determination of the period of parole ineligibility, are public safety, the separation of Mr. Bengy from society, denunciation, general deterrence and specific deterrence. Rehabilitation is less significant in determining parole ineligibility for the offence of second degree murder.

[27] In determining parole ineligibility I must also consider the factors set out in section 745.4 of the Criminal Code; namely, the nature of this offence of second-degree murder, the circumstances surrounding the commission of this offence, the character of Mr. Bengy and the recommendation of the jury.

[28] In R. v. Shropshire, 1995 CanLII 47 (S.C.C.), [1995] 4 S.C.R. 227 at paras. 27 and 29, the Supreme Court of Canada set out the standard to be applied in the judge’s exercise of discretion in determining parole eligibility as follows:

…as a general rule, the period of parole ineligibility shall be for 10 years but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s.744 (now s.745.4), the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be “unusual”, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

...In permitting a sliding scale of parole ineligibility, Parliament intended to recognize that, within the category of second degree murder, there will be a broad range of seriousness reflecting varying degrees of moral culpability. As a result, the period of parole ineligibility for second degree murder will run anywhere between a minimum of 10 years and a maximum of 25, the latter being equal to that prescribed for first degree murder. The mere fact that the median period gravitates towards the 10 year minimum does not, ipso facto, mean that any other period of time is “unusual”.

Application of the Principles

[29] Mr. Bengy armed himself with a knife to attend a crowded social event. He took out that knife and entered a fist fight in which Mr. Ramdeen was unarmed, outnumbered and overpowered. He intentionally killed Mr. Ramdeen. His conduct was callous and cowardly. These aggravating factors, in my view, take the case from the minimum parole ineligibility period and raise it to the range of 11 to 15 years. In terms of mitigation, Mr. Bengy cooperated with the police by attending the police station after the stabbing and he is a young man with a reasonable prospect for rehabilitation. In light of these mitigating factors, the lower end of the range is appropriate.

Conclusion with respect to Mr. Bengy

[30] I have concluded that the appropriate period of parole ineligibility is 11 years.

[31] Therefore, Mr. Bengy is sentenced to life imprisonment without eligibility for parole until he has served at least 11 years.

[32] Section 745.01 requires that I state for the record the date when Mr. Bengy is eligible for parole. Mr. Bengy has been found guilty of second degree murder and sentenced to imprisonment for life. He is not eligible for parole for 11 years from the time of his arrest and incarceration and therefore is not eligible for parole until June 21, 2020.

[33] In addition, I hereby impose two further mandatory orders:

1. Mr. Bengy is prohibited from possessing any firearms, or any weapon and other items enumerated in s. 109 of the Criminal Code for life.

2. He will provide such samples of bodily substances as may be reasonably required for forensic DNA analysis under s. 487.051 of the Criminal Code.

Edwin Modeste

Positions of the Parties

[34] The Crown seeks a 7-year sentence of imprisonment. The Crown argues that a significant penitentiary sentence is necessary to further the sentencing objectives of general deterrence and denunciation.

[35] Counsel for Mr. Modeste submits that a sentence of 2 to 3 years is appropriate in light of the role played by Mr. Modeste in the offence and his prior good character. Both parties agree that Mr. Modeste should receive ten and one-half months credit for the five months and one week that he spent in pre-trial custody.

[36] Counsel for Mr. Modeste submits that further credit should be given to Mr. Modeste for the period of time that he has spent, since November 2009, on house arrest. Mr. Moon submits that Mr. Modeste should be credited with a further period of 10 months.

Background and Character of Mr. Modeste

[37] Mr. Modeste is 40 years old. He was 37 at the time of the offence. He has no criminal record. Mr. Modeste was born in Grenada and came to Canada in 1987 when he was 15 years-old. The pre-sentence report that was prepared in this case indicates that he has a good relationship with his parents and siblings. His family has remained supportive of him since his arrest and conviction. He has been in a relationship for the last two years.

[38] Mr. Modeste has five children from previous relationships. One of his daughters lives with him and the other children reside with their mothers. He has had a stable employment history until his arrest. He completed high school and completed a two-year Computer Technician course in 1995.

[39] The pre-sentence report supports the position taken by counsel for Mr. Modeste on sentencing, that Mr. Modeste is a hardworking person of prior good character.

Sentencing Principles

[40] In sentencing Mr. Modeste, I have considered sections 718, 718.1 and 718.2 of the Criminal Code. It is the task of sentencing court not only to consider and weigh the various principles and factors, but in some cases to select a dominant principle. In cases of violence the appellate courts have held that emphasis in sentencing must be placed on deterrence. At paragraphs 37 and 38 of R. v. Costa[^2], Watt J. discusses deterrence in the context of homicide, saying,

Deterrence also has inherent in it the notion of denunciation. A sentence must make apparent society’s concern for the sanctity of human life, as well as its revulsion that anyone would take the life of another. [citations omitted]. …

It may be fairly said that the leading principle which emerges from the sentencing jurisprudence is that general deterrence and denunciation command the imposition of a custodial sentence in cases of unlawful killing, absent exceptional circumstances. [citations omitted] Identification of the predominant principle makes it no less difficult, however, to determine a fit sentence in the case of an offender who has no previously-recorded criminal conviction and whose conduct is quite at odds with his prior good character.

[41] The range of sentences imposed in manslaughter cases is very broad. This was explained by the Supreme Court of Canada in R. v. Creighton[^3]:

…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender. …

[42] One of the principal considerations in imposing a sentence for manslaughter, therefore, is the moral blameworthiness of the offender.

[43] The Alberta Court of Appeal in R. v. Ferguson[^4] has explained what is involved in the “comprehensive consideration of moral blameworthiness” that is required in a manslaughter sentencing:

An assessment of moral culpability involves a consideration of the particular circumstances of the case including: the nature, quality and gravity of the act; the method and manner by which the act was committed; the offender's awareness of the risk; and what should have been in the offender's mind, had he or she acted reasonably. One begins the analysis by classifying culpability on the basis of subjective and objective intent. …

Mens rea is only the starting point. To complete the moral blameworthiness assessment, the court must consider other circumstances that would aggravate and mitigate culpability. There are many relevant factors and all must be blended and balanced.

[44] It is difficult to find a precedent that is close to the facts of this case. Crown and defence have provided me with a number of manslaughter cases which I have considered. In addition, I have considered the recent case of R. v. MacFarlane[^5] in which our Court of Appeal upheld a sentence of 4 years less pre-trial custody for a manslaughter involving a two on one beating of an unarmed 18 year-old who was ultimately stabbed by a co-accused. The accused knew that his co-accused had a knife, but he was not the person who stabbed the deceased. With credit for pre-trial custody, the offender was sentenced to 2 years less a day and 2 years probation. In that case, by way of mitigation, the offender entered a guilty plea to the charge and was remorseful. He had also been assaulted in the jail by his co-accused. Aggravating factors were that, at the time of the offence, he had just been released from custody and was on probation. The sentence was a joint submission except with respect to the credit to be given for the pre-trial custody. This was an endorsement of the Court of Appeal and the product of a joint submission and therefore its utility is somewhat limited. However, it is instructive in illustrating the lower range of sentence for a manslaughter conviction in similar factual circumstances.

Application of the Principles

[45] The moral blameworthiness of Mr. Modeste, assessed in accordance with the analysis in R. v. Ferguson, is at the lower range of the spectrum of blameworthiness for the offence of manslaughter. Mr. Modeste’s culpability is grounded in his participation in an assault with other assailants against the victim in circumstances where he knew or ought to have known that one of the others would carry out an unlawful act that was likely to cause serious harm.

[46] There are several circumstances that the Crown asks me to find as aggravating factors in this case.

[47] The Crown has submitted that the victim’s intoxication rendered him vulnerable. The evidence does not support a finding that Mr. Ramdeen was so intoxicated that he could be found to be vulnerable on that basis.

[48] The Crown further points to the use of a weapon against an unarmed man as an aggravating factor. I find this to be an aggravating factor although the weapon was not wielded by Mr. Modeste. Mr. Modeste, by the time the fight began, was aware of the prior stabbing.

[49] The Crown points to the fact that Mr. Modeste fled as a further aggravating factor. Mr. Modeste certainly fled, as did many friends of the victim. While aggravating, I do not give much weight to this factor. This is not a case where the victim was left unattended. There were many people who did not leave and who assisted Mr. Ramdeen and who obtained medical assistance for him.

[50] The Crown also asks me to find that the injuries, in addition to the stab wounds, are aggravating. As I indicated earlier, the most serious injuries to the face, mouth and chin of Mr. Ramdeen were likely caused by his fall after being stabbed. The bruises and lacerations in other areas are attributable to the assault.

[51] Mitigating factors in this case are that Mr. Modeste has strong family support, a stable work history and is a person of prior good character. He has no drug or alcohol abuse problems and no history of violence before this offence.

[52] The circumstances of Mr. Modeste’s involvement and the basis for his conviction are somewhat unusual as he is not alleged to have committed the unlawful act that caused the death or to have aided, abetted or encouraged Mr. Bengy to commit it. The circumstances of the offence before me are very similar to the circumstances in MacFarlane. The level of moral culpability is comparable. It is clear that the circumstances of this case, as in MacFarlane, call for a penitentiary term. General and specific deterrence and denunciation, in this case however, can be addressed by a sentence in the lower range. Rehabilitation is also addressed by a sentence in the lower range. A significant difference between this case and MacFarlane is that MacFarlane was a guilty plea and the offender was remorseful.

[53] Balancing the considerations of deterrence, prevention and rehabilitation, a sentence of five years is appropriate.

[54] I have considered the submission that credit should be given to Mr. Modeste for the period of time that he spent on house arrest. There is not sufficient evidence before me as to the impact of his conditions of house arrest to justify such credit.

[55] It is agreed that Mr. Modeste should receive credit for his pre-trial custody.

Conclusion with respect to Mr. Modeste

[56] I therefore sentence Mr. Modeste to five years imprisonment. With credit for pre-trial custody of five months and one week credited as 10 months and two weeks, a sentence of forty-nine and one-half months remains to be served.

[57] There will be a s. 109 order prohibiting Mr. Modeste from possession of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

[58] Manslaughter is a "primary designated offence" in s. 487.04, the section of the Criminal Code dealing with forensic DNA analysis and the securing of DNA samples. As such, s. 487.051(1) of the Criminal Code makes such an order mandatory. Therefore, I order that Mr. Modeste to provide such samples of his bodily substances as are reasonably necessary for the purpose of forensic DNA analysis.

Forestell J.

Released: July 30, 2012

[^1]: R. v. Ferguson, 2008 SCC 6, [2008] S.C.J. No. 6 at paras. 15-18 [^2]: [1996] O.J. No. 299 (Gen. Div.) at para. 33 [^3]: 1993 CanLII 61 (SCC), [1993] S.C.J. No. 91 (S.C.C.) at para. 86 [^4]: R. v. Ferguson, 2006 ABCA 261, [2006] A.J. No. 1150 (C.A.), at paras. 60 and 61, aff'd 2008 SCC 6, [2008] 1 S.C.R. 96 (S.C.C.) [^5]: 2012 ONCA 82```