ONTARIO
SUPERIOR COURT OF JUSTICE
DATE: 20131025
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JOAO ROSA
Laura Bird, for the Crown
R. Roots Gadhia, for Joao Rosa
reasons for sentence
MacDonnell, J.
[1] On September 18, 2013, Joao Rosa was arraigned before this court on an indictment charging him with one count of aggravated assault, two counts of assault and one count of failing to provide the necessaries of life. One of the counts of assault pertained to Mr. Rosa’s conduct toward his former common law partner C.R. The other three counts concerned Mr. Rosa’s conduct toward his infant son, J.
[2] On October 12, 2013, after four days of deliberations, the jury found Mr. Rosa not guilty of assaulting C.R. but guilty of failing to provide the necessaries of life to J. The jury was unable to reach unanimous verdicts on the counts of aggravated assault and assault in relation to J.
[3] Mr. Rosa is before the court for sentencing on the count of failing to provide necessaries of life.
A. The Circumstances of the Offence
[4] At about 10 p.m. on Thursday June 24, 2010 Mr. Rosa and C.R. brought their seven-week old son J. to the Hospital for Sick Children. Although an external examination of J. in the Emergency Department revealed no physical signs of injury, it was obvious that he was seriously unwell, and within a very short time after presentation at the hospital he began having seizures. The doctors were unable to obtain any information from either Mr. Rosa or C.R. that might account for J.’s grave condition. Over the course of that night and the days that followed the medical team conducted a battery of tests and procedures. What they discovered was shocking: J.’s skull had been fractured virtually from ear to ear, he had widespread subdural hemorrhaging on the sides and top of his brain, brain swelling in both cerebral hemispheres, extensive retinal hemorrhaging in his left eye, and soft tissue damage to his neck consistent with having been severely shaken. He also had seven rib fractures and four leg fractures.
[5] The devastating consequences of those injuries are heartbreaking. J.’s optic nerve was irreversibly damaged, leaving him permanently blind. He is physically disabled, he is significantly cognitively delayed, he struggles with ongoing seizures, he has had numerous hospitalizations, and he has to be tube-fed. There is no hope that there will ever be any meaningful improvement to the severely compromised quality of his life.
[6] The focus of the charge of aggravated assault was on J.’s head injuries, which the Crown alleged endangered his life. The charge of assault concerned J.’s rib and leg fractures. The allegation underlying the charge of failing to provide necessaries of life was that Mr. Rosa, knowing that J. was in urgent need of medical attention for the trauma to his head, failed to do anything to obtain it for some 40 hours, and that even after he finally brought J. to the hospital – at the insistence of C.R. – he failed to disclose to the medical team what had happened to J.
[7] The position of Mr. Rosa was that he had nothing to do with the infliction of any kind of trauma on J. and that he was unaware of any such trauma having been caused. He testified that he knew that J. had been unwell for a day or so before he was taken to hospital but he did not perceive a need for urgent medical intervention
[8] The jury was instructed that on the facts of this case they could only return a verdict of guilty on the count of failing to provide the necessaries of life if they were satisfied beyond a reasonable doubt that Mr. Rosa either intentionally or accidentally inflicted J.’s head injuries. The verdict of guilty on this count necessarily means, therefore, that the jury found that Mr. Rosa did inflict those injuries and that they rejected Mr. Rosa’s testimony to the contrary. However, the jury’s verdict did not resolve the issue of whether the infliction of the head trauma was intentional or accidental. Accordingly, it fell to me to determine that question in accordance with the provisions of s. 724 of the Criminal Code. As I indicated on Monday, for reasons to be provided separately I am satisfied beyond a reasonable doubt that the force was applied intentionally. That is, what happened to J. at the hands of Mr. Rosa was not an accident.
[9] Based on the medical evidence, and in particular the evidence of Dr. Shroff and Dr. Kadar, it is clear that Mr. Rosa inflicted severe blunt force trauma to J.’s skull. Based on Dr. Shroff’s evidence in relation to the soft tissue injury to J.’s neck and Dr. Mireskandari’s evidence in relation to the retinal hemorrhaging, I am satisfied that as part of the same incident Mr. Rosa shook J. repeatedly. Because the only persons present were Mr. Rosa and J., the precise manner in which Mr. Rosa inflicted the head trauma cannot be determined. On the basis of the totality of the evidence, however, I am satisfied as to where and when it occurred, namely in J.’s room at approximately 5 or 6 o’clock on the morning of Wednesday June 23.
[10] I make that finding in light of the medical evidence that the subdural hemorrhaging had occurred no more than 2 to 3 days before presentation at hospital, the evidence of Lisa Pulis that Mr. Rosa told her that he had dropped J. on Wednesday morning, and the evidence of C.R. that it was Wednesday morning that Mr. Rosa brought J. to her exhibiting signs of unresponsiveness. C.R.’s account of what she observed of J.’s condition on both Wednesday and Thursday supports a conclusion that the incident occurred Wednesday. Mr. Rosa’s evidence was that he brought J. to C.R. on Thursday morning. I am of the view that Mr. Rosa is mistaken on that point. I note that in the course of his interview with the police on Friday he initially indicated that it was on Tuesday. On the totality of the evidence I conclude that it was Wednesday morning that Mr. Rosa brought J. to C.R. in an unresponsive state.
[11] I am satisfied beyond a reasonable doubt that immediately after Mr. Rosa inflicted the trauma, J. began exhibiting obvious symptoms of distress. In his statement to the police, Mr. Rosa described a number of aspects of J.’s behaviour that the medical evidence indicates are symptoms of brain trauma: J.’s eyes rolled back into his head, he was not responsive, and he had difficulty breathing. Mr. Rosa told the police that after five minutes J. was still not responding normally and so he took him to C.R. Mr. Rosa’s statement to the police about what had happened to J. was largely a self-serving lie, but I am satisfied that with respect to the symptoms of distress displayed by J. he was telling the truth. While he may not have known the full extent of the damage he had caused to J.’s brain, he knew that J. was displaying alarming signs of injury and he knew that the cause of the injury was the severe trauma he had just inflicted on him. I am satisfied beyond a reasonable doubt that at that point it was obvious to Mr. Rosa that J. was in need of urgent medical attention.
[12] The charge of failing to provide necessaries of life pertains to what Mr. Rosa did and did not do over the next 2½ days. Put shortly, he told no one what had happened to J. and he did nothing to obtain medical treatment for him. He was out with his friends almost all day on Wednesday. On Thursday he was home for part of the day, playing video games and watching television, but he was out of the apartment hanging out with his friends for a number of hours. He was aware of C.R.’s concern about J’s condition, but at no point did he reveal to her what had happened.
[13] When C.R. eventually decided that J. should be taken to the Hospital for Sick Children, Mr. Rosa agreed to drive them there, but he took his time preparing to go. I reject his evidence that it was his idea to take J. to the hospital. At the hospital, he not only withheld vital information from the doctors with respect to the cause of J.’s condition but he lied and said that he did not know what had happened to him.
[14] Mr. Rosa first disclosed any information about the trauma J. had suffered the following afternoon, 16 hours after J. had begun having seizures, in his statements to Lisa Pulis and the police. As I have said, those statements were largely self-serving lies. It is telling, however, that Mr. Rosa did not make his disclosure to the doctors. Instead, he insisted on speaking to the police, who he knew were interviewing C.R., and who he knew would soon be questioning him. I have no doubt that what motivated him to finally admit that he had done something to J. was a concern not for J. but rather for himself. Indeed, in the context of all of the evidence, the only reasonable inference is that Mr. Rosa had not revealed to C.R. or to anyone else what he had done and he had not taken steps to get J. medical assistance because he did not want to face the consequences of his actions. That conclusion is supported by a statement he made to the police in the course of relating the false “accidental drop” story, namely that he did not tell C.R. because he was afraid she would get mad at him. That was partly true, but I am satisfied that Mr. Rosa recognized that he was in jeopardy of far more serious consequences than C.R.’s anger, namely a criminal prosecution. He put his self-interest in avoiding that jeopardy ahead of the needs of his son, who, by the time he was taken to hospital, was in a life or death situation.
[15] The jury found that Mr. Rosa’s failure to obtain medical treatment for J’s head injuries caused a permanent endangerment to J.’s health. That conclusion was amply supported by the evidence. Dr. Kadar was asked whether, from a medical perspective, it would have been helpful for J.’s medical treatment for him to have been brought to Sick Kids earlier. He responded as follows:
It’s possible, though it is also possible that even with best efforts to stabilize him things may still have evolved or progressed, but the hope would have been that by securing his breathing, by maintaining his blood pressure, by maintaining the red blood cells in his system (he was quite anemic by the time he came in), by providing a lot of different medical support we probably could have mitigated the progression of that brain injury.
B. The Circumstances of the Offender
[16] Mr. Rosa was 19 years of age at the time of the offence. He was born in Brazil and lived there until he was four, at which point he came to Canada. He remained in Canada until he was 12 and then went back to Brazil for 5½ years. In 2008, when he was 18, he returned to Canada. On his return, he worked part time in construction and then, in January 2009, he enrolled at Kipling Collegiate, where he met C.R. He stayed in school until the fall of 2009. He worked sporadically after that time until the occurrence of the offence. At the time of the offence both he and Ms. Rangel were on social assistance.
[17] Mr. Rosa comes from a large and supportive extended family. His father, Mauro Rosa was present in court throughout the trial, as was his sister, who had come from Brazil for that purpose. His aunt and uncle testified at trial, and it is obvious that they care very much for him and that they will continue to do so. He had no prior criminal record.
[18] Mr. Rosa was arrested at the hospital on June 25, 2010. He was initially released on bail. One of the terms of his release order was that he have no contact with C.R. He breached that term and in November 2011 his release order was cancelled pursuant to s. 524(8) of the Criminal Code. He has now spent 23 months in custody, 3 months of which are attributable to the sentence he received upon conviction for breaching his release order. The parties are agreed Mr. Rosa should receive a credit for the 20-month balance of his presentence custody on a one-for-one basis.[1]
[19] Pursuant to s. 726 of the Criminal Code, Mr. Rosa was given the opportunity to speak at the conclusion of the sentencing hearing. He stated that he took full responsibility for failing to get medical help for J. However, his acceptance of responsibility was conditioned on his position that he never applied any force to J.
C. The Positions of the Parties
[20] On behalf of the Crown, Ms. Bird submitted that the appropriate sentence for Mr. Rosa is a penitentiary term of four to five years less the credit of 20 months for presentence custody. The resulting sentence, if Ms Bird’s submission were accepted, would be between 28 and 40 months imprisonment.
[21] On behalf of Mr. Rosa, Ms. Gadhia submitted that the 20 months of presentence custody is a sufficient penalty but that if further imprisonment is required, it should be no more than a term of 4 months.
D. Discussion
[22] Section 718 of the Criminal Code provides, in part, that 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 have one or more of [six] objectives.” Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society where necessary, rehabilitation, and the promotion of a sense of responsibility in the offender. Whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”[2]
[23] The objectives set forth in s. 718 sometimes pull in different directions. Which objectives will be given the greatest weight in any particular sentencing scenario will be a case-specific determination. Any case where a conviction for failing to provide necessaries of life rests on a breach of the duty to obtain medical care for a seriously injured infant is necessarily a serious matter. Within that context, however, individual cases will tend to fall along a spectrum of gravity. In determining where this case lies on that spectrum, a number of circumstances should be taken into account.
[24] Although J. suffered devastating and life-altering harm at the hands of Mr. Rosa, that harm was not exclusively the result of Mr. Rosa’s failure to get him to a hospital – the trauma that Mr. Rosa inflicted to J.’s head was by itself a substantial contributing cause of J.’s present condition. Although the infliction of that trauma was a shocking and abhorrent act, it must be borne in mind that Mr. Rosa was not convicted of assaulting J. and he is not before the court to be sentenced for assaulting J. It should also be said that unlike many instances of a failure to provide necessaries, the time period during which the failure continued – 2½ days – was relatively brief. This was not a case where the failure extended over a lengthy period of time. I take into account, as well, that apart from the behavioral symptoms displayed by J. immediately after the trauma was inflicted and the fact that J. continued to be unwell over the next two days, there were no visible signs of injury to him. In addition, while I acknowledge that abuse of a position of trust and abuse of a child are statutorily deemed to be aggravating circumstances for sentencing purposes, one must be careful not to double count them, as it were, in that both of them are inherent in the commission of the offence charged.
[25] As I have said, Mr. Rosa is to be sentenced for failing to provide necessaries of life to J., not for intentionally inflicting trauma on him. However, for at least two reasons, the fact that he did intentionally inflict the trauma aggravates the moral blameworthiness of Mr. Rosa’s failure to obtain medical assistance for J. First, it explains why Mr. Rosa failed to get help for J., namely because he did not want to face the serious consequences that would flow if anyone discovered what he had done. He put his fear of being found out ahead of the life and safety of his helpless infant son. Second, it places Mr. Rosa’s failure to obtain medical assistance for J. at the more serious end of the spectrum of gravity. A conviction for failing to provide necessaries does not require subjective awareness of the risk of danger to the life or health of the victim, nor a subjective belief in the need to take action to avoid that danger. It is an offence that can be committed by negligence, provided that the failure to act constitutes a marked departure from the objective standard of a reasonably prudent person: R. v. Naglik, [1993] 3 S.C.R. 122, at paragraph 37. Mr. Rosa’s knowledge that he had intentionally inflicted significant trauma to J. carries the basis for his liability well past objective foreseeability of a risk of harm into the realm of subjective foreseeability. Further, his knowledge that he had intentionally inflicted the trauma informs the assessment of the extent to which his failure to get help for J. was a marked departure from what a reasonable parent would have done.
[26] Deciding which sentencing objectives should be given the greatest weight requires a balancing of the foregoing considerations together with Mr. Rosa’s personal circumstances, which include his youth, the support of his family, the absence of any prior record, and his prospects for rehabilitation. In my opinion, on a proper weighing of all of those factors, the paramount principles of sentencing in this case must be denunciation and deterrence. Those objectives can only be achieved in this case by a term of imprisonment
[27] In determining the length of the term necessary to achieve those objectives, it is helpful to consider sentences imposed on similar offenders for similar offences,[3] and in that regard counsel have referred to several sentencing decisions. The case that I find most instructive is the decision of the Ontario Court of Appeal in R. v. Chittamath, 2009 ONCA 239. In that case, as in the case at bar, the offender’s liability for failing to provide necessaries of life rested on a failure to obtain medical treatment for her severely injured son. As in the case at bar, the child had suffered blunt force trauma to the head as well as other serious injuries, including fractures to an arm and leg. Although the fact that the child was suffering was obvious for 10 days, the offender did nothing. The child ultimately died.
[28] The offender in that case, like Mr. Rosa, had no prior record. Unlike Mr. Rosa, she pleaded guilty. The sentencing judge imposed a term of imprisonment of six months. On a Crown appeal, the Court of Appeal expressed the view that the sentence was manifestly unfit, and that a sentence of 18 months imprisonment should have been imposed.
[29] The fact that the child in Chittamath died from his injuries is an important circumstance that is absent from the case at bar. However, while J. did not die from his injuries, the quality of his life has been permanently and devastatingly compromised. Further, there was no evidence in Chittamath that the offender had any involvement in the infliction of her son’s injuries. And more significantly, at the time of the commission of the offence in Chittamath the maximum penalty for failing to provide necessaries of life was two years imprisonment. It is now five years imprisonment. In stating that a sentence of 18 months would have been fit, the Court of Appeal added “we make no comment on what the appropriate sentence would be under the present regime in which Parliament has seen fit to raise the maximum penalty to five years”. In my view, it is manifest that under the present regime the sentence would have been much higher.
E. Disposition
[30] The case at bar presents a very serious instance of the offence of failing to provide necessaries of life to a child. While Mr. Rosa is not to be punished for intentionally inflicting the trauma to J.s head, the fact that he did so exacerbates the moral blameworthiness of his failure to obtain medical help. I conclude that but for the presentence custody the appropriate sentence would have been 3½ years, or 42 months. He is entitled to a credit of 20 months for his presentence custody. Accordingly, the sentence to be imposed today is 22 months imprisonment.
MacDonnell, J
Delivered orally and released: October 25, 2013
[1] Because the reason for Mr. Rosa’s presentence detention was an order under s. 524(8), he cannot receive more than one-for-one credit: see s. 719(3.1).
[2] Section 718.1
[3] Section 718.2(b) of the Criminal Code