ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11153
DATE: 2013/09/06

B E T W E E N:

HER MAJESTY THE QUEEN

F. Ball, for the Crown

• and -

DANIEL JIMENEZ-ACOSTA

S. Purohit & M. Montes for the Accused

HEARD: July 31 & August 2, 2013

REASONS FOR SENTENCE

A. J. Goodman, J.:

[1] On May 18, 2011, Patricia Pacheco-Hernandez was found dead in the basement area of the suburban house she shared with her husband, Daniel Jimenez Acosta and their three children. She had suffered from numerous blunt and sharp force impact wounds applied mostly to the back and top of her head, resulted in massive blood loss. She had multiple severe incised wounds of both of her hands which resulted in near-amputations of several fingertips. The bruises on the forearms and fractures of the back of the deceased’s hands were defensive in nature.

[2] Mr. Jimenez Acosta was convicted by a jury of the second degree murder of his wife. As a result, he is to be sentenced to life imprisonment, pursuant to the provisions of the Criminal Code. The only matter to be decided is the period that he must serve before he is eligible to apply for parole, which must be fixed at between 10 and 25 years.

[3] In their respective submissions, Crown counsel asks that the period of parole ineligibility should be increased to 15 years. In addition, the Crown requests a prohibition order pursuant to s. 109 of the Criminal Code for life, and a DNA order. Counsel for the offender argues that the parole ineligibility period be limited to 10 to 12 years. There is no dispute with regards to the Crown’s request for the ancillary orders.

The recommendation of the jury

[4] The recommendation of the jury was divided. Nine jurors recommended 15 years, one recommended 17 years and two recommended 20 years before parole eligibility.

The circumstances of the offence

[5] Ms. Pacheco-Hernandez’s relationship with Mr. Jimenez-Acosta had some difficulties. Prior to the incident, they had not seen each other for a period of time as Mr. Jimenez-Acosta was in Colombia engaged in business opportunities while the deceased remained at home in London. He had just returned back to London a few weeks before the murder.

[6] Ms. Pacheco-Hernandez knew Mr. Karpf for many years and had rekindled a serious relationship with him commencing a few years prior to her death. They communicated daily and had met a few times both in Colombia and in London. This relationship or extra-marital affair was not known to the offender.

[7] On May 18, 2011, it appears that Ms. Pacheco-Hernandez intended to inform Mr. Jimenez-Acosta about her relationship with Mr. Karpf and that she wanted a divorce. Mr. Jimenez-Acosta responded by brutally assaulting Ms. Pacheco-Hernandez, and beating her with a vase and other objects. Ms. Pacheco-Hernandez ultimately died of the injuries suffered during Mr. Jimenez-Acosta’s attack on her.

[8] Mr. Jimenez-Acosta killed Ms. Pacheco-Hernandez and then attempted to contaminate the crime scene in order to frustrate the police investigation into the matter.

Victim Impact Statement

[9] The deceased’s sister, Ms. Piedad De Jesus Pacheco-Hernandez provided a victim impact statement.

The circumstances of the offender

[10] A pre-sentence report was prepared in this case. The probation officer reported, inter alia, that the offender met Patricia Hernandez at a social event in Colombia and married in January of 1993. Together they had three children: two sons and a daughter. The family successfully immigrated to Canada and established themselves in the London community. The offender described a positive and loving relationship with his wife. He stated that there were no incidents of physical altercations between the couple, they maintained open lines of communications and were able to resolve their differences in a positive manner. He stated that there were no prior incidents of police involvement regarding domestic disputes. The offender maintained like many other couples, they had their differences but remained deeply committed to one another.

[11] The offender stated that his children are currently residing with Fernando Jimenez and Diana Rios (offender’s brother and sister-in-law). The Children’s Aid Society confirmed the guardianship placement and the eldest is residing independently in the community.

[12] Collateral contact with Fernando Jimenez reported that he was not aware of any form of physical violence or marital discord between his brother and Patricia. Fernando claimed that the offender is a very peaceful man who avoids conflict and he was not aware of any problems in the marriage.

[13] The offender described a positive and rewarding education experience. He stated that he attended the University of Autonoma del Caribe where he completed a four-year degree in Journalism. Upon immigrating to Canada, the offender secured employment with a company that was a building materials manufacturer. In 2008, the offender became self-employed; as the sole proprietor of a tow truck business in which he operated one vehicle.

[14] The offender maintained his innocence regarding the murder of his wife, Patricia Pacheco-Hernandez. He was adamant that the individual(s) who had broken into their home that morning was responsible for the murder of his wife. He accepted no responsibility or accountability for the death of the victim.

[15] The offender expressed no emotion throughout the course of the interview when discussing his life history or that of his relationship with Patricia. At the conclusion of the interview, this writer inquired about his future and only then when he became emotional, stating that “he has faith in God in whatever the outcome may be”, noting that “he wants the best outcome for his children.”

[16] All collateral contacts described the offender as being committed to his faith, a devoted father, a dedicated husband, a hard worker and a positive member of his community. The offender was described as a kind and humble man, one who helps others in need and is generous. The family stated that the offender had no reason to commit the offence. The family remained committed to the offender and will continue to be a source of support for him.

[17] The probation officer concluded that Daniel Jimenez-Acosta was raised in a stable family environment; he was not victimized as a youth, there are neither substance abuse concerns nor any mental health diagnosis. Mr. Jimenez-Acosta escaped from his native country of Colombia due to political unrest as his family was identified by the guerrillas and paramilitaries as targets in respect to family wealth. Upon immigrating to Canada, he was able to secure employment, establish himself independently in the community and provide a home for his family. He became a Canadian citizen and assisted family members in their relocation to the London community. He has no prior involvement in the criminal justice system. In respect to the relationship between the offender and the victim; the offender maintains that there were no marital difficulties, the marriage was positive and there was no indication from his perspective that the victim was preparing to leave him.

[18] The probation officer’s report is corroborated by witnesses called by the defence; Mr. Javier Hoyos, Ms. Marta Orbonez, Mr. Fernando Jimenez, Ms. Beatriz Mendoza, Mr. Mike Miguel and Ms. Milka Sanchez. All of these witnesses describe the offender as a hard-working individual, a gentle, caring and devoted father and husband. The offender is well respected in the community and was always willing to help others, including those who had recently immigrated to Canada. Mr. Jimenez reported that the entire situation has been very hard on the two youngest children.

The governing principles

[19] Under s. 745(c) of the Criminal Code, on conviction for second degree murder the offender must be sentenced to life imprisonment, with no eligibility for parole for a fixed period ranging from a minimum of 10 to a maximum of 25 years.

[20] Section 745.4 empowers the sentencing judge to increase the parole ineligibility period from the minimum of 10 years to the period that the judge deems fit, up to the maximum of 25 years. Section 745.4 requires that in exercising his or her discretion, the trial judge have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and the recommendation of the jury.

[21] In R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, the Supreme Court of Canada articulated the standard to be applied in assessing the exercise of a trial judge's discretion under s. 744 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, the offender should wait a longer period before having his suitable 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.

[22] As well, the court held that the power to extend the period of parole ineligibility need not be sparingly used and is not restricted to "unusual circumstances." The court recognized that "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."

Case Law

[23] In R. v. McKnight (1999), 1999 3717 (ON CA), 135 C.C.C. (3d) 41, the Ontario Court of Appeal upheld a period of parole ineligibility of 14 years where the husband murdered his wife of 20 years by stabbing her to death in their bedroom with a 10 inch serrated bread knife. The victim sustained numerous injuries and had over 50 defensive wounds on her hands and forearms. He suffered from depression. The jury rejected a defence of not criminally responsible by reason of mental disorder. There were some elements of planning and deliberation. The jury convicted of second-degree murder. The trial judge fixed the period of parole ineligibility at 17 years. In reducing the period of parole ineligibility to 14 years, Laskin J.A. held:

Taking into account all of these aggravating and mitigating features, in my opinion, a 17-year period of parole ineligibility falls outside a reasonable range. No two cases are the same but similar cases from this province of brutal second-degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years.

[24] The decision in McKnight confirmed that both denunciation and rehabilitation are relevant factors in fixing the period of parole ineligibility, but that the statutory 10 year minimum ineligibility period limits the weight that can be accorded to the offender's prospects of rehabilitation. The Court also acknowledged that elements of planning and deliberation can be considered as aggravating features of a second degree murder. The Court of Appeal held that a range of 12-15 years was a reasonable period of parole ineligibility in these types of cases.

[25] Both parties have filed a number of authorities setting out parole ineligibility findings on cases of domestic violence leading to second degree murder. I conclude that the authorities relied upon by the Crown, in particular, R. v. Hindessa [2009] O.J. No. 6412 (S.C.) aff’d 2011 ONSC 3685, [2011] O.J. No. 2811 (C.A.) and R. v. Czibulka 2011 ONCA 82, [2011] O.J. No. 372 (C.A.), while instructive, are distinguishable on the facts and the particular circumstances of each of their respective offenders.

[26] I have also considered a number of other reported cases. In R. v. Edgecombe, [1991] O.J. No. 2044, Watt J., as he then was, imposed period of parole ineligibility of 10 years on a conviction for second degree murder where Mr. Edgecombe was convicted of killing his spouse by manual strangulation. The offender had a lengthy criminal record. A distinguishing factor was that the accused pleaded guilty.

[27] In R. v. Munroe, [1995] O.J No. 819, the Ontario Court of Appeal upheld a period of parole ineligibility of 12 years imposed by the trial judge where the appellant was convicted of second degree murder of his wife.

[28] In R. v. Morrow, [1995] O.J. No. 4052, McLean J. imposed a period of parole ineligibility of 15 years on a conviction for second degree murder. The jury had recommended 20 years parole ineligibility. The accused murdered his common-law spouse by cutting her throat following an argument. The accused had a criminal record. The court found the commission of the murder in the presence of his two-and-a-half year old child to be particularly aggravating.

[29] In R. v. Plaha, [1999] O.J. No. 5577, Durno J. imposed a period of parole ineligibility of 12 years following a conviction for second degree murder. The offender stabbed his wife in the chest in a situation where the children witnessed the murder. This case was described as a brutal murder.

[30] In R. v. McLeod, 2003 4393 (ON CA), [2003] O.J. No. 3923, the Court of Appeal increased the period of parole ineligibility from 10 years to 12 years following a conviction of second degree murder. The accused had stabbed his girlfriend four times in the neck, then cut up her body and deposited it in a suitcase by the highway. The court considered the callous treatment of the victim's body.

[31] In R. v. Crogie, [2005] O.J. No. 6405, M.J. Quigley J. levied a period of parole ineligibility of 11 years following a guilty plea to second degree murder. The Crown had consented to the entry of the plea. The accused was 58 years of age and had been in a common law relationship with the deceased.

[32] In R. v. Kailayapillai, [2009] O.J. No. 1145, M.K. Fuerst J. imposed a period of parole ineligibility of 14 years. The court considered the accused to be in a position of trust to the victim and the fact that she was killed in her own home. The wife's skull was fractured and she was hung up in the garage and was discovered by her children. There were some elements of planning. The accused had no criminal record or prior history of domestic violence.

[33] Finally, in the case of R. v. Angelis, 2011 ONSC 462, [2011] O.J. No. 608, R.J. Smith J. imposed a period of parole ineligibility at 12 years. There are several similarities in Angelis as in the case before me. For example, both cases involved a murder as a part of a domestic altercation, and the deceased was left lying about for hours. However, there are also marked dissimilarities in Angelis including intoxication, a unanimous recommendation of the jury for 10 years of parole ineligibility, and the accused killing his wife in front of his two young children.

Application of these principles to this case

Analysis

[34] This court, or any court, is guided by the principles of sentencing as set out in ss. 718 to 718.2 of the Criminal Code. As directed by s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that reflect enumerated objectives. These objectives relevant to this case are denunciation of the unlawful conduct, specific and general deterrence of other potential offenders, separation of offenders from society where necessary, reparation for harm done and rehabilitation. It is important to impose a sentence that promotes a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community. The circumstances of the offence and of the offender must be analyzed to identify the aggravating and mitigating factors.

[35] In particular, I must apply the considerations mandated by s. 745.4. In assessing s. 745.4 factors and in deciding whether to increase the period of parole ineligibility, all of the objectives of sentencing as found in ss. 718 to 718.2 are relevant.

Aggravating Factors

[36] There are a number of aggravating factors in this case. The offender killed his wife as part of a domestic altercation, which is recognized as an aggravating factor pursuant to s. 718.2(a)(ii). Ms. Pacheco-Hernandez's husband, Mr. Jimenez-Acosta was in a position of trust towards her. Ms. Pacheco-Hernandez was killed in the basement of her own home.

[37] The assault on Ms. Pacheco-Hernandez was vicious and brutal. The fact that Mr. Jimenez-Acosta struck his wife numerous times on the head with sufficient force to fracture her skull, and used sharp and blunt objects in a frenzied manner indicates his determination to ensure that she was dead. The realization in the last moments of her life that her own husband was attacking her would have been a terrifying experience for Ms. Pacheco-Hernandez. The wounds to her hands and fingers indicate that she tried, without success, to defend herself from the blows.

[38] Mr. Jimenez-Acosta attempted to contaminate the scene of the crime after returning to the residence with his father. He placed great stress upon his elderly father, exposing him to a highly emotionally charged situation in a failed effort to provide an alibi for his conduct.

Mitigating Factors

[39] The offender has no criminal record. He has been described as a person of very good character, has been a good father to the children, a good husband and has been employed. He has no past history of any violence and in fact has a general reputation in the community as being a non-violent person and an individual always willing to help others.

[40] During the trial, even the deceased’s sister, Piedad Pacheco-Hernandez, whose statement was read-in, opined that Daniel Jimenez Acosta “was an excellent husband and that any woman would have wanted to have him as husband. He never raised a hand to my sister. “He was a great father and they were both very devoted to their children”. Piedad Pacheco Hernandez added that she never heard Daniel raise his voice at Patricia or raise a hand at her or at the children. She opined that Patricia was the stronger one and Daniel was the weaker one in the relationship.

[41] The jury has recommended that the period of parole ineligibility be fixed at between 15 and 20 years.

[42] As Watt J. (as he then was) wrote in R. v. Barry [1991] O.J. No. 2666 (Gen Div):[^1]

It is difficult to gauge with any accuracy the weight which should be attributed to a jury recommendation regarding parole ineligibility. In one sense, it might be said to represent the community view upon the issues. To so hold, however, as it appears to me, is somewhat to overstate the case. They are given no guidance on the precedents concerning the appropriate range. They are simply told the numbers. They are not required to at least endeavor to achieve unanimity. It is, as it was in this case, but a brief, somewhat informal exercise, after they have been earlier told that sentence forms no part of their responsibility in determining liability, and thereafter told it is but a recommendation. They receive no further evidence concerning, for example, the likelihood of recidivism, future danger to society or other matters which might logically bear upon the issue other than what they can recall was given at trial.

[43] I acknowledge and appreciate the jury’s combined wisdom and experience as representatives of the community. While the jury's recommendation is not binding on me, it is a factor that I consider and weigh when setting the period of parole ineligibility. However, the members of the jury did not have the benefit of considering the applicable case law, the aggravating or mitigating factors or have the benefit of hearing submissions from both counsel before making their recommendations. In this case I have taken all of these factors into account and with respect, have rejected their recommendations accordingly.

[44] It is not an aggravating factor that Mr. Jimenez-Acosta pleaded not guilty and had a trial. However, he cannot benefit from the mitigation that flows from a plea of guilty and the expression of remorse. In this case, Mr. Jimenez Acosta continues to deny his involvement in the crime and, given this position, has not demonstrated any remorse.

[45] Despite Crown counsel’s persuasive argument, I am not convinced that this offence bears elements of any planning or deliberation. I am permitted to draw inferences from the evidence and arrive at my own conclusion of fact from this aspect of the evidence. Specifically, I am not satisfied beyond a reasonable doubt that the use of the vase from the bedroom involved a degree of planning, rather was used impulsively, in the heat of the moment or in the context of one continuous transaction The evidence suggests that this incident was a frenzied and emotionally filled attack upon the deceased, precipitated by Mrs. Pacheco-Hernandez taking the opportunity to advise the offender that she was either having a relationship with Mr. Karpf, or wanted a divorce from him or both.

[46] I reject the range proffered by defence counsel for this type of case. Mr. Purohit submits that the Court of Appeal, in addressing the case of R. v. Pasqualino 2008 ONCA 554, [2008] O.J. No. 2737, adopted the trial judge’s view that an appropriate range for cases involving murder in the context of domestic violence is between 10 to 14 years. I do not agree. The Court merely repeats the trial judge’s considerations in arriving at his conclusion and goes on to affirm the decision of 13 years parole ineligibility as appropriate in the circumstances of that case. My reading of Pasqualino, in particular paras. 78 & 79 do not suggest to me that the Court of Appeal endorsed 10-14 years as establishing a range for these types of offences in circumstances involving domestic violence.

[47] I agree with Mr. Ball’s submission regarding the range of sentence and the applicability of R v. McKnight, for "brutal second-degree murders of an unarmed wife or girlfriend." The jurisprudence supports the general range for the period of parole ineligibility in similar cases of domestic