R. v. Trifts, 2015 ONSC 2805

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Trifts, 2015 ONSC 2805

COURT FILE NO.: CR-12-1964

DATE: 20150430

B E T W E E N:

HER MAJESTY THE QUEEN

Jacob Sone, Assistant Crown Attorney, for the Crown

• and -

ISABELLE TRIFTS and CARMELO OTTAVIANO

John Raftery for Isabelle Trifts and Arthur Neil Gregson for Carmelo Ottaviano

REASONS FOR SENTENCE

Justice Tzimas

OVERVIEW

1On October 23, 2014, Isabelle Trifts was found guilty of robbery and assault against Eric Dean. She was also found guilty of possessing and concealing a weapon. Carmello Ottaviano was found guilty of robbery against Eric Dean. The incident against Mr. Dean occurred in the late afternoon of February 20, 2011.

THE FACTS

a) Circumstances of the offence

2Mr. Dean was confronted by a group of young people in the late afternoon of February 20, 2011, in a tunnel beneath Clarke Parke, known to the people who were involved in the incident as Medusa’s Cave. Ms. Trifts and Mr. Ottaviano were among the group of young people. Mr. Dean was beaten, made to strip down to his boxer shorts, then made to bathe in the cold water that was in the tunnel and finally he was cut on various parts of his body.

3Some of the young people who were involved in the incident, including Ms. Trifts identified themselves as the “Juggalos” or “the Clowns”. They had nicknames and loosely identified with the “Insane Clown Posse”, an American hip hop group from the United States whose music was described at trial to be horror-themed and psychopathic that tapped into the dark side of clowns.

4The “Juggalos” considered themselves outcasts and lonely. They hung out together in the hope of offering each other support. Ms. Trifts’ nickname was “Smiles”. Mr. Ottaviano was not part of the “Juggalos”. Nor was he a clown. He was however associated with some of the individuals who were “Juggalos”. One of those individuals was said to be his girlfriend, MW.

5Three reasons were given at trial for the incident between the group of young people and Mr. Dean. The first reason was to confront Mr. Dean about his alleged rape of MW, which subsequently was admitted to be a false allegation. The second reason for the confrontation was an allegation that Mr. Dean had stolen from Mr. Ottaviano either $60.00 or $60.00 worth of weed. The third reason given for the confrontation was that Mr. Dean had various differences with the clowns and did not like them. Those individuals wanted to put an end to those differences. To be clear, the third reason related to the participation of others. There was no evidence that either Mr. Ottaviano or Ms. Trifts were motivated by that third concern.

6MW made the arrangements for Mr. Dean to come to the cave. Within minutes of his arrival there, Mr. Dean was confronted by at least two individuals. Others, including Ms. Trifts entered the front end of the cave at some point after the initial confrontation and stood by and watched the events as they unfolded. Another group of individuals came to the cave from the back entrance. Mr. Ottaviano was among those who stood at the back and watched the incident as it unfolded. In total there were over 15 individuals who participated in the confrontation.

7Ms. Trifts came to know about the plan to lure and confront Mr. Dean on the morning of the incident. Originally, she was supposed to be working at a fast food outlet at the mall but she was fired that morning. She went over to Tim Hortons where her boyfriend at the time, CPS, MW, Mr. Ottaviano and others were hanging out. There, MW, told Ms. Trifts of the alleged rape. Ms. Trifts did not know MW but she got very upset with the alleged incident as it triggered memories of negative experiences of her own. As she heard about the afternoon plans, she also became concerned about her boyfriend’s safety. Ms. Trifts went to her home for a bit but returned to Tim Hortons in the afternoon. She brought with her a hatchet, which she concealed in her pants by her waist. She testified that she brought the hatchet for her own protection but had no intention of using it.

8The confrontation with Mr. Dean got underway in the late afternoon of February 20, 2011 and was initially limited to a verbal exchange. Ms. Trifts stood on one side of the tunnel close to Mr. Dean. At some point she crossed over to the other side of the tunnel past Mr. Dean. As she did, she touched Mr. Dean and that triggered an all-out beating up of Mr. Dean by the other youth who were there. Eventually, Mr. Ottaviano, Ms. Trifts and some of the other individuals who were with them left the cave. The more violent aspects of the confrontation that included Mr. Dean being cut-up continued after Mr. Ottaviano’s and Ms. Trifts’ departure.

9At some point following the beating and the cutting up, Mr. Dean was left alone and he made his way to the parking lot by the Bramalea City Centre. A couple of his friends picked him up and brought him to the nearby police station. From there he was taken to the hospital where he received twenty-one stitches for his wounds.

b) Circumstances of the Offender, Isabelle Trifts

10A Pre-Sentencing Report, (“PSR”) for Ms. Trifts was prepared in contemplation of the sentencing. Ms. Trifts is a first-time offender who is living on her own and working full-time. She is now twenty-two years old. At the time of the offences she had just turned eighteen. Ms. Trifts was born in Fredericton, New Brunswick. At some point early on her parents moved to Toronto and they divorced when Ms. Trifts was three. Ms. Trifts lived with her mother. When she turned seven, they moved to Brampton.

11Ms. Trifts did not grow up in a happy home environment and was abused by her mother’s fiancé. Her mother corroborated this experience in her interview with the parole officer. She said that things got better for Ms. Trifts once the fiancé left the relationship. Her mother also reported that Ms. Trifts became rebellious in grade seven and eight but that she did not cause any problems at home.

12Ms. Trifts lived at home until the end of Grade 12. She then left home and moved to Orangeville where she graduated from high school. Ms. Trifts started studies at Georgian College in Barrie in Culinary Sciences but she did not complete them. In December 2013, she began working at Tim Hortons in Barrie and later moved to a Tim Hortons in Orangeville. Ms. Trifts has had a very stable position with Tim Hortons and by all accounts she works very hard and has been very successful. In a letter from a representative of her employer, it was confirmed that Ms. Trifts works very hard and that she has very good prospects of being promoted.

13There is agreement that Ms. Trifts uses marijuana from time to time. Ms. Trifts also reported that she suffered from “major depression”, she had an eating disorder and that she was prescribed anti-depressant medications. She said that smoking weed helped her with her eating disorder. Ms. Trifts’ family doctor confirmed that she saw Ms. Trifts and found that she was depressed and had suicidal thoughts.

14Despite Ms. Trifts’ difficulties with her childhood and her resentment of her parents’ divorce, Ms. Trifts has a supportive family. This is evidenced in the extensive letters that both her parents submitted to the court for consideration. Ms. Trifts also has a supportive employer. By all accounts, Ms. Trifts has turned her life around from the situation she was in at the time of the offence. Her ex-husband described Ms. Trifts as somebody who was very loving, caring and supportive over the three years of their relationship.

15Finally, Ms. Trifts is a first-time offender. The author of the PSR reports that Ms. Trifts is very remorseful over the events that occurred on February 20, 2011. Ms. Trifts’ parents confirmed as much and focused on how far along she has come since the incident and how much she has changed. Ms. Trifts’ remorsefulness was evident in both her testimony in court and her own statement at the conclusion of the sentencing submissions.

c) Circumstances of the Offender, Carmello Ottaviano

16A PSR was also prepared for Mr. Ottaviano in contemplation of his sentencing. Mr. Ottaviano is twenty two years old. Mr. Ottaviano is a first-time offender with a diagnosed learning disability stemming from Fetal Alcohol Spectrum Disorder (FASD). At the time of the offence he was eighteen. Mr. Ottaviano was born in Etobicoke and raised in the Caledon area.

17Mr. Ottaviano’s parents were separated when he was an infant and he was raised primarily by his father. Mr. Ottaviano described his growing up as very confusing. He did not have any contact with his biological mother between the ages of three and sixteen. His father’s common-law partner, who joined the family when Mr. Ottaviano was ten, was described as somebody who was very supportive. Mr. Ottaviano has two maternal half-sisters who are 21 and 20 years old and one maternal half-brother who is 30 years old. He also has three paternal step-brothers who are 36, 30 and 26 years of age and who live in the Brampton area.

18Although Mr. Ottaviano denied any history of family violence and abuse, Mr. Ottaviano eventually recalled that his father was physically abusive at times and that the Children’s Aid Society (CAS) conducted investigations on more than one occasion.

19In addition to his family, Mr. Ottaviano has been in a dating relationship for the past three years. This individual has been most supportive of Mr. Ottaviano and has helped him in all aspects of his life. Mr. Ottaviano’s biological mother described the person as an “amazing girl” who has had a positive influence on Mr. Ottaviano’s life.

20Mr. Ottaviano is reported to have completed grade 11 and is currently working through an online school program to complete his high school credits. His description of a confused childhood reflected his mental health issues, which as a child went undiagnosed. Mr. Ottaviano provided documentation from the FASD Diagnostic Clinic at St. Michael’s hospital dated July 22, 2009, which indicated that he “met the criteria for the diagnosis of Partial Fetal Alcohol Syndrome (PFAS), a diagnosis that falls within FASD. His cognitive functions are weak and he has significant problems comprehending and understanding. Since he turned 18, Mr. Ottaviano has been on financial assistance through the Ontario Disability Support Program (ODSP). He worked for a period of time as a landscaper but was laid off in the fall when the trial commenced.

21On the subject of substance abuse, Mr. Ottaviano reported that he used marijuana daily between the ages of sixteen and nineteen. He admitted to smoking marijuana on a sporadic basis and said that it helped him to “mellow”. He recognized that the daily use caused him mental health and emotional concerns and he indicated that he would be agreeable to attending substance abuse counselling. On the subject of alcohol, Mr. Ottaviano indicated that he hardly drinks.

22With respect to the offence, Mr. Ottaviano did not make any statement to the court. In the PSR it is stated that Mr. Ottaviano denied taking any part in the offence. Mr. Ottaviano’s family believed that Mr. Ottaviano associated with the wrong people at the time of the offence but that he distanced himself from all those individuals in the more recent years. They described Mr. Ottaviano as somebody who has come a long way and as a “sweet loving boy”, who was quiet and who kept to himself.

LEGAL PARAMETERS

a) Position of the Defence for Isabelle Trifts

23Counsel for Ms. Trifts submitted that it would be appropriate to sentence Ms. Trifts to 18 months probation. He suggested that this would be similar to the sentence that was imposed on MW.

24In support of the proposed sentence, defense counsel underscored the fact that the jury did not find Ms. Trifts guilty of aggravated assault. He also noted that the evidence did not support a finding that Ms. Trifts encouraged, aided or abetted the robbery and the assault. Ms. Trifts was not involved in either the planning of the confrontation with Mr. Dean or the luring of Mr. Dean to the cave. The money in question was not hers and she did not take any money from Mr. Dean. Nor did she initiate the violence. She went along with a large group of young individuals, most being in their late teens.

25Counsel also invited the court to make a finding that Ms. Trifts tripped in front of Mr. Dean as opposed to deliberately hitting him. In light of the conflicting evidence on this point, counsel noted that the evidence that Ms. Trifts’ bumping of Mr. Dean was deliberate came from witnesses for whom the jury was cautioned to look for confirmatory testimony before it accepted their evidence.

26Finally, counsel noted that Ms. Trifts could not have foreseen the level of violence that unfolded. In support of that contention, counsel underscored DB’s admission that he became so angry with Mr. Dean’s conduct and the allegations against him that he just lost it and beat him relentlessly. In the result, the only way that the jury could find Ms. Trifts guilty of robbery and assault was through the route of common intention. That finding would have implications on how to consider and analyze the aggravating factors of the offence.

27Turning more specifically to Ms. Trifts’ situation, counsel noted that Ms. Trifts had no previous convictions, no subsequent convictions, and no outstanding charges or criminal record other than the convictions in this matter. Moreover, counsel noted that Ms. Trifts is a very different person from the time of the incident. She has made herself a useful member of society, she worked night shifts through trial and respected the court process, she separated herself from the people who brought her into conflict and in short, there is no need to separate her from society.

b) Position of the Defence for Carmello Ottaviano

28Counsel for Mr. Ottaviano requested a suspended sentence, a probation order and fifty hours community service. He invited the court to consider the overall context of Mr. Ottaviano’s involvement in the incident against Mr. Dean. He suggested that the only thing that was foreseeable on the morning of the incident at Tim Hortons was a robbery. In the course of the incident, Mr. Ottaviano remained a passive observer. He stood at the back of the cave and was not seen by anyone doing anything wrong. With respect to the group that hung out at Tim Hortons, Mr. Ottaviano only had a peripheral connection to it and has had no connection since the incident. Counsel described Mr. Ottaviano as a follower, not a leader.

29Counsel identified some errors in Mr. Ottaviano’s PSR with respect to the identification of his siblings. More significantly, he relied on Mr. Ottaviano’s online school efforts to obtain his grade 10 equivalency certificate, his specific needs arising out of the effects of FASD, and his efforts to deal with his anger management to support his argument that there was no prospect that Mr. Ottaviano would re-offend and that a custodial sentence in Mr. Ottaviano’s circumstances would do more harm than good.

30In the alternative to a suspended sentence, counsel submitted that if the court were to conclude that a custodial period was warranted, that such a period be intermittent to take into account Mr. Ottaviano’s condition. Counsel suggested that given Mr. Ottaviano’s syndrome, a custodial term in one block of time would be harmful to Mr. Ottaviano.

31Finally, Mr. Ottaviano did not wish to address the court. His counsel explained that Mr. Ottaviano gets very nervous and would have difficulty with an address to the court.

c) Position of the Crown for both Offenders

32The Crown submitted that Ms. Trifts should be sentenced to eighteen months in jail followed by probation, and ancillary orders related to DNA and a s.109 weapons prohibition. He submitted that Mr. Ottaviano be sentenced to a period in the range of nine to twelve months jail as well as the same ancillary orders.

33The Crown highlighted several aggravating factors of the offence that the court could find on the basis of the evidence applicable to both offenders:

(a) The offence required significant planning and deliberation. Mr. Ottaviano and Ms. Trifts were both at Tim Hortons when the plan was formulated to confine Mr. Dean;

(b) The plan was to lure Mr. Dean to Medusa’s Cave, to barricade him there, to rob him and to teach him a lesson; in other words, to beat him up;

(c) The plan was a group event designed to prevent Mr. Dean from fleeing;

(d) The offence occurred in an isolated location that was deliberately chosen for its isolation;

(e) Mr. Dean was taken by surprise and was not prepared for the attack;

(f) Some of the attackers were masked, including Ms. Trifts, who was partially masked; and Mr. Ottaviano saw those who were masked;

(g) A number of the members of the group were armed, including Ms. Trifts who was identified by another witness as a “slender white woman” who was brandishing a weapon;

(h) Ms. Trifts initiated the violence by striking the first blow on the offender. CPS testified that “Smiles” ran up and cracked him in the knee”;

(i) The level of violence for the purposes of the robbery was extraordinary;

(j) Both offenders were part of the degradation and humiliation of the victim;

(k) Ms. Trifts, though not party to the wounding, expressed her support for the wounding in a chillingly cruel text message after the incident and after she learned that Mr. Dean received stitches; and

(l) Mr. Ottaviano expressed support for the robbery when he was reported to say that the victim was getting what he deserved.

34The Crown noted that it was of some importance that the victim was under the age of eighteen and that Mr. Ottaviano and Ms. Trifts were just over eighteen. He did acknowledge that while that was a factor, the offenders were youthful even if over eighteen.

35The Crown also acknowledged that the impact of the offence on Mr. Dean was formally unknown because he refused to give a statement for the purposes of sentencing. The Crown however invited the Court to recall Mr. Dean’s testimony that at the time he feared for his life and further suggested that it could be expected that somebody’s life would be affected following such an attack.

36Regarding mitigating factors, insofar as the offence was concerned, the Crown argued that there were none. Mr. Dean was beaten up on the basis of false allegations.

37Insofar as the circumstances of the offenders are concerned, the Crown noted that both offenders were youthful, they have good prospects for rehabilitation and they have supporting families, all suggesting that they will be able to contribute to the community in a positive way in the future.

38Regarding Ms. Trifts, the Crown acknowledged that her deep sense of remorse and her willingness to accept responsibility was a mitigating factor.

39For Mr. Ottaviano’s medical condition, the Crown expressed reservations over its consideration as a mitigating factor because there was no evidence of a causal connection between his conduct and his condition.

40On the application of the sentencing principles, the Crown argued that in the context of this offence general deterrence and denunciation were central considerations. He described the offence as “gravely serious”. It was conducted in a cruel and degrading manner and a message had to be sent to these offenders and to society that those who commit such crimes will pay a heavy price.

41The Crown addressed the subject of parity in relation to Mr. DB, the other gang member who was over the age of eighteen, and noted that it was an important principle but not a rule of sentencing. He agreed that like offenders should be sentenced for like offences. Then with respect to DB, he noted that although DB was sentenced to the equivalent of 21 days, none of the aggravating factors that were evidenced before this court were before that court. In that instance, the court was left with the impression of a routine robbery and an offender who pleaded guilty.

42Finally, the Crown referred to a number of cases but relied most heavily on R v. Panchan and Lopes, 2013 ONSC 5567, [2013] O.J. No. 4022 at paragraph 33 for the proposition that “different considerations apply in serious crimes of violence, particularly where careful planning is evident” and that in such robberies, sentences of fifteen months to two years less a day were appropriate even if the offenders were “well-situated first offenders”.

THE CASE LAW

a) The governing principles

43The governing principles of sentencing are outlined in s. 718 of the Criminal Code:

S. 718:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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 the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

S. 718.1

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

S. 718.2

A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

44Remarkably, all parties referred to different aspects of R v. Panachan, noted above, for its analysis of the relevant sentencing principles in the context of a robbery with facts similar to this case.

45As in Panachan, on the evidence before this court, the principles of sentencing pull in competing directions. Both Mr. Ottaviano and Ms. Trifts were youthful first time offenders. In the years since the occurrence of the offence, they have gone beyond the demonstration of having good rehabilitative prospects. They have already made significant strides and changed their ways. They pose little to no risk of re-offending. It has been recognized that in such circumstances, the primary sentencing values are aimed at rehabilitation and specific denunciation. On the other hand the seriousness of the robbery can shift the focus to a greater emphasis on denunciation and deterrence.

46In this instance, the consideration of whether or not such a shift is warranted is complicated by the intricacies of this offence, the involvement of several individuals, with competing motivations and whose roles and actions made the incident far more violent and pronounced than anything anticipated by either Mr. Ottaviano or Ms. Trifts.

47There can be little doubt that Mr. Dean’s beating became violent. But neither Mr. Ottaviano nor Ms. Trifts were found guilty of aggravated assault. Nor was there any evidence to support the finding that either Mr. Ottaviano or Ms. Trifts had anything to do with the escalation of violence. By the time of the more violent aspects of the beating, both Mr. Ottaviano and Ms. Trifts were gone. That finding, combined with the uncontroverted evidence that at least some of the individuals had different reasons for participating in the beating is relevant to how the sentencing principles are applied to this case. Although the incident turned violent, neither Mr. Ottaviano nor Ms. Trifts caused the violence. To shift the focus from rehabilitation and specific deterrence to general deterrence and denunciation for conduct that did not attach to them would result in a sentence that was disproportionate to their respective offending actions for which they were found guilty.

48With these preliminary thoughts in mind, I turn to the consideration of the aggravating and mitigating factors as they relate to the sentencing of the offenders.

b) Aggravating factors

49The point of departure for this part of the analysis rests with my findings on the nature of Mr. Ottaviano’s and Ms. Trifts’ participation in the robbery and beating up of Mr. Dean.

50As noted above, Mr. Ottaviano was found guilty of robbery against Mr. Dean. With respect to his specific participation, I find that Mr. Ottaviano was a party to the offence of robbery against Mr. Dean and the only plausible route to his guilt was through common intention. By all accounts, the $60.00 at issue, whether in cash or in the value of weed, belonged to Mr. Ottaviano. One of the reasons for the attack on Mr. Dean was that debt. I find, based on the evidence before the court that Mr. Ottaviano became aware of the plan to unlawfully confine Mr. Dean, he knew that one of the reasons for the planned confrontation was for somebody to get the $60.00 back, and he agreed to go along with the plan.

51I also find that Mr. Ottaviano was not actively involved in the actual robbery. Others took that step and he merely followed. The evidence before the court supports the finding that Mr. Ottaviano followed the group of individuals to Medusa’s Cave and remained in the background at all times. CPS underscored that evidence when he confronted Mr. Ottaviano in the cave and in a distinctly resentful manner laid moral blame on Mr. Ottaviano and criticized him for staying in the background.

52Ms. Trifts was a much more active participant in the confrontation, though as with Mr. Ottaviano there were limits to her participation. Like Mr. Ottaviano, she became aware of the plan to confront Mr. Dean and she agreed to go along with the rest of the group for that purpose. Ms. Trifts seemed to be motivated primarily by her reaction to the alleged rape by Mr. Dean. Before the execution of the plan, Ms. Trifts went to her home and brought back with her a small hatchet.

53Insofar as the robbery is concerned, although Ms. Trifts did not participate in the actual robbery, she knew that one of the reasons for the unlawful confinement related to the $60.00, she agreed to go along with the agreed plan, and she understood that somebody would be confronting Mr. Dean about the $60.00 as well as the alleged rape. She was found guilty through the route of common intention.

54Insofar as the assault is concerned, I am satisfied that the Crown at trial established beyond a reasonable doubt that Ms. Trifts was party to the offence of assault and was guilty by way of common intention. I am not satisfied that the Crown proved beyond a reasonable doubt that Ms. Trifts initiated the violence and that she struck the first blow that began the beating of Mr. Dean. The evidence that the ground in the cave where the confrontation occurred was slippery, that there were a number of individuals who crowded around, and that the space within the cave was narrow, raised doubts as to whether Ms. Trifts deliberately initiated the attack or whether she slipped in front of Mr. Dean when she tried to move across from one side of the cave to the other. CPS’s conflicting testimony on that point was confusing. In light of the limited space within the cave, his suggestion that Ms. Trifts ran up to Mr. Dean and cracked him on the knee did not make sense.

55The evidence could support a finding that Ms. Trifts’ slip and fall was interpreted by others as a deliberate first hit given her proximity to Mr. Dean and the dynamic situation that was unfolding. But the interpretation by others is to be distinguished by Ms. Trifts’ own intentions which I find were more in the nature of trying to get out of the way. In further support of this finding, I note that neither the evidence from DB nor Mr. Dean placed Ms. Trifts in a protagonist role.

56I do find that in her agreement to participate in Mr. Dean’s confinement, Ms. Trifts was concerned about the prospects of somebody getting hurt. She admitted that she had the intuition that something bad might happen to her, which caused her to obtain her hatchet. As well, Ms. Trifts’ testimony that one of the reasons she really went along with the plan was because she feared for CPS’s safety and wanted to protect him underscored Ms. Trifts’ knowledge and concern that somebody would probably get hurt in the course of Mr. Dean’s confinement.

57Turning to the aggravating factors suggested by the Crown, I have difficulty accepting a number of them. For starters, I agree with the submissions of defence counsel that there was no evidence to suggest “significant planning and deliberation”. I find that both Ms. Trifts and Mr. Ottaviano were present at the Tim Hortons on the morning of the incident and I also find that they heard about the plan and agreed to participate in it. But the evidence before the court does not support a finding that the planning was either significant or deliberate or that either of these offenders had a significant role. If anything, Ms. Trifts’ evidence regarding the plan, as compared to what eventually occurred and how matters got out of control is suggestive of a plan that was flawed, that lacked significant planning and for which Ms. Trifts had a woefully naïve outlook as to what might actually happen.

58Insofar as the luring of Mr. Dean was concerned, some of the steps were set in motion in the previous days but there was no evidence that Ms. Trifts had any part in that process. Mr. Ottaviano may have had some greater insight on the plan from MW but the evidence was inconclusive to allow for such a finding. What the evidence did suggest was that there was at least another individual, who was not present at Tim Hortons on the morning of the incident who may have been the mastermind of the confrontation. To be clear, I make no specific finding regarding that individual. I highlight the evidence only to underscore my finding that Mr. Ottaviano’s involvement in the luring was superficial at best.

59Insofar as Mr. Dean’s confinement was a group event, I agree and find that those involved including Mr. Ottaviano and Ms. Trifts intended to confine Mr. Dean. But the confinement itself as an aggravating factor can be given little weight because ultimately the group was not terribly successful. For starters, a number of them, including Mr. Ottaviano and Ms. Trifts left before the beating was over. They gave up on the confinement. Mr. Dean testified that at one point he was able to escape from the cave. DB verified that evidence and testified that he had to go after Mr. Dean and indeed succeeded in bringing him back into the cave.

60The degree of violence, as distinct from the prospect that somebody would get hurt and that there would be some violence, is also a dubious aggravating factor. Given DB’s testimony that he embarked on a relentless beating of Mr. Dean on his own initiative and for reasons of his own, I find that the actual turn of events that included Mr. Dean being cut up was not foreseeable by either Mr. Ottaviano or Ms. Trifts. This conclusion is further supported by DB’s testimony that neither Ms. Trifts nor Mr. Ottaviano were known to him. Similarly, DB was not present at the Tim Hortons on the morning of the incident; he showed up just before the incident. Moreover, Ms. Trifts testified that she did not know DB.

61I do accept that Mr. Dean’s degradation and the humiliation in the course of being confined and then beaten and wounded is an aggravating factor, particularly for Ms. Trifts. Although eventually they left the cave before the incident was over, Ms. Trifts and Mr. Ottaviano witnessed the first several minutes of the confrontation and the beating. They also watched as Mr. Dean was asked to strip down to his shorts and asked to bathe in the cold water. I accept CPS’s evidence that Mr. Ottaviano told him that Mr. Dean was getting what he deserved and I find Ms. Trifts’ text messages some hours following the incident, to the effect that she enjoyed the experience to be offensive and chillingly cruel. Both offenders took pleasure with some of what was going on. Moreover, based on Ms. Trifts’ testimony before the court, it was not until a few days following the incident, when she learned that the rape allegations were false that she began to feel bad for what happened. Until that moment her sense was that Mr. Dean was getting what he deserved. The respective sentiments expressed by Mr. Ottaviano and Ms. Trifts go to Mr. Dean’s degradation and humiliation and they are aggravating factors.

c) Mitigating factors

62In contrast to the limited aggravating factors, I find a number of mitigating factors as they relate to both Mr. Ottaviano and Ms. Trifts.

63I accept that both offenders have made very dramatic changes to their lives and are unlikely to reoffend. I find that both Mr. Ottaviano and Ms. Trifts were youthful at the time of the offence, they were first-time offenders, they have supporting families and they have already demonstrated good progress in their rehabilitation. Furthermore they have ceased all contact with those involved with the incident and moved on with their lives.

64I note that the lapse of approximately three years between the time of the offence and the trial was not explained to this court and cannot be treated as a mitigating factor. What is a significant mitigating factor however is that in this three year period, both offenders have made significant strides in their lives and are well on their way to being rehabilitated. Rehabilitation is not just a prospect but a reality. They have both moved away from their very troubled lives of the past. Ms. Trifts is gainfully employed by Tim Hortons and has credible prospects of being promoted within that organization. Mr. Ottaviano, who has particular medical challenges has made major strides in his education efforts and he is to be encouraged to continue in the same vein. These strides for both of these individuals, especially in light of their past vulnerabilities and challenges is that much more significant. I have serious concerns that a custodial sentence for an extended length of time would amount to a serious setback.

65I also accept Ms. Trifts’ deep sense of remorse and her willingness to accept responsibility as a mitigating factor for consideration. Ms. Trifts expressed concerns to this court that she not be considered a bad person and that she felt very bad. Her statement to the Court was accepted as one more indicator of her remorse.

66Finally, I note that both offenders have had significant challenges with mental health issues. The evidence before me confirms their efforts to address those issues. I find that it is essential that counselling and support be part of their continued rehabilitation. In addition, it is my hope that the family members who stepped up and expressed their support for each of the offenders during the trial and the sentencing process will continue to be there for each of Ms. Trifts and Mr. Ottaviano, and indeed make up for their own shortcomings of the past. It is not the role of this court to pass judgment on that past but, regrettably, it is often the case that the source for the trouble that both Ms. Trifts and Mr. Ottaviano find themselves in is traceable to failings within their families.

67Turning back to R. v. Panchan and in light of my findings on the aggravating and mitigating factors, and recognizing that neither Ms. Trifts nor Mr. Ottaviano were found guilty of aggravated assault, I do not find that their participation in the robbery and in Ms. Trifts’ case, the assault to be of such character so as to support a shift in focus from rehabilitation and specific deterrence to general deterrence and denunciation. This is not to be interpreted to mean that general deterrence and denunciation is to be minimized or ignored. Rather, it is meant to get at the need to identify terms of a sentence that are responsive to the particular offending conduct and proportional to actions that resulted in the respective convictions.

68In Mr. Ottaviano’s case, his overall participation and involvement was such that the sentencing objectives can be met without a custodial component to the sentence. For Ms. Trifts, I cannot ignore her pronounced involvement and her motivations to participate however misguided they proved to be. I recognize that Ms. Trifts is fundamentally a good person, that she has made strides and she is to be encouraged to stay on the path she is on. Given the four convictions against her, a sentence that is responsive to the sentencing principles must include a short but sharp custodial component, to be served intermittently for a short period of time, in addition to probation and community service.

CONCLUSION & DISPOSITION

69Having regard to the above analysis the appropriate sentences for Mr. Ottaviano and Mr. Trifts are as follows:

70Mr. Ottaviano’s sentence is suspended, and he is released on 12 months probation, and 50 hours of community service on the condition that he:

1. Keep the peace and be of good behaviour;

2. Appear before the court when required to do so;

3. Notify the court or probation officer in advance of any change of name or address and promptly notify the court and probation officer of any change in employment or occupation;

4. Co-operate with his probation officer. Mr. Ottaviano shall sign any release necessary to permit the probation officer to supervise him and he must provide on request proof of compliance with any term of this order;

5. Report to a probation officer within two working days of today’s order and thereafter, when required by the probation officer and in the manner directed by the probation officer;

6. Attend and actively participate in such assessment, counselling or rehabilitative programs as recommended by his probation officer to address anger management and any other related issues as may be determined to be helpful to him by his probation officer.

7. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

8. Refrain from communicating directly or indirectly with Mr. Dean and with all those individuals involved with the incident against Mr. Dean.

9. Perform 50 hours of Community Service Work as directed by the probation officer.

71Finally, the following ancillary orders will be made:

(a) a weapons prohibition order pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code for a period of ten years; and

(b) a DNA order pursuant to section 487.051(3) authorizing the taking of a DNA sample.

72Ms. Trifts is sentenced to 40 days intermittent custody, and thereafter to two years parole and 100 hours of community service, concurrent on account of four convictions.

73Ms. Trifts shall surrender into custody immediately for processing and then attend on Friday, May 1, 2015 at 7 p.m. and remain in custody until Monday May 4, 2015 at 6 a.m. Thereafter, the balance of the time in custody shall be served on consecutive weekends from Friday each weekend at 7 p.m. until the following Monday at 6 a.m. until the 40 days are fully served. Today’s attendance for processing is to be credited towards the 40 days.

74When not in custody, Ms. Trifts shall be on probation on the following conditions:

1. Report to a probation officer immediately and thereafter, when required by the probation officer and in the manner directed by the probation officer;

2. Keep the peace and be of good behaviour;

3. Appear before the court when required to do so;

4. Notify the court or probation officer in advance of any change of name or address and promptly notify the court and probation officer of any change in employment or occupation;

5. Co-operate with the assigned probation officer. Ms. Trifts shall sign any release necessary to permit the probation officer to supervise her and she must provide on request proof of compliance with any term of this order;

6. To attend and actively participate in such assessment, counselling or rehabilitative programs as recommended by her probation officer to address depression, tendencies to suicide, and any other related issues as may be determined to be helpful to her by the probation officer.

7. Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

8. Refrain from communicating directly or indirectly with Mr. Dean and with all those individuals involved with the incident against Mr. Dean.

75Following the completion of custody, Ms. Trifts shall remain on probation for an additional two years on the same conditions noted above. In addition, she will undertake 100 hours of community service as directed by the probation officer.

76Finally the following ancillary orders are made:

(a) a weapons prohibition order pursuant to subsections 109(1)(a) and 109(2) of the Criminal Code for a period of ten years; and

(b) a DNA order pursuant to section 487.051(3) authorizing the taking of a DNA sample.