ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CRIMJ(P) 479/13
DATE: 2015 09 23
B E T W E E N:
HER MAJESTY THE QUEEN
R. Alexander Cornelius and Ann-Marie Calsavara for the Crown
- and -
BRIAN FUNES
Mary Cremer for Brian Funes
HEARD: June 19, 2015
REASONS FOR SENTENCE
Fragomeni J.
[1] Mr. Brian Funes was convicted by a jury of manslaughter on March 13, 2015. Prior to setting out the appropriate sentence in this matter it is necessary for me to make the relevant findings of fact that resulted in a finding that Mr. Funes committed manslaughter.
Position of the Crown
[2] The Crown submits that the evidence at trial supports the following findings of fact:
Mr. Funes planned the robbery. The evidence of Joe Magdangal and Nirm Satkunananthan (Nirm) supports this submission. The idea of the robbery was initiated by Mr. Funes when Mr. Funes was shown the flyer advertising the large gambling event at the Rozz Banquet Hall.
Mr. Funes was aware that the event would generate a large sum of money.
The testimony of John Morrone is cogent evidence that supports the finding that Mr. Alexis, Mr. Kelly and Mr. Owusu were John Morrone’s contribution to the plan to rob the Rozz Banquet Hall. Mr. Funes, having conceived the plan, arranged for Mr. Morrone, Mr. Alexis, Mr. Kelly and Mr. Owusu to participate in the robbery.
Mr. Funes had the connection to the poker world not Mr. Morrone, Mr. Kelly, Mr. Alexis or Mr. Owusu.
B (Gregory Brown) introduced Mr. Funes to Mr. Morrone.
Mr. Funes arranged for the inside man, Nirm.
[3] The Crown argues, therefore, that the evidence supports a finding that Mr. Funes arranged and planned the robbery.
[4] The Crown submits further that the evidence supports a finding that Mr. Funes would have had knowledge of the following:
Mr. Morrone and his associates were known for carrying and using guns.
Mr. Funes knew that the foreseeable outcome of this robbery was death or serious bodily harm to constitute a finding of manslaughter.
Mr. Funes knew there would be over 100 people at this event.
Mr. Funes knew there would be a large amount of cash at the event.
Mr. Funes knew there would be security at the event so he would need a degree of force to overcome any resistance to the plan to rob the hall. In such circumstances, therefore, the plan required guns. Mr. Funes knew or ought to have known that Mr. Morrone and those tasked to rob the hall had to be armed.
The Crown submits that inherent in the jury verdict is that Mr. Funes knew or ought to have known that the robbers had to be armed to deal with any resistance.
Following the attempted and failed robbery and the resultant death of Mr. Nedd, Mr. Funes knew of the death of Mr. Nedd and that is why at the YMCA parking lot meeting, subsequent to Mr. Nedd’s death, he was not surprised at all that there had been a shooting. Instead, the Crown submits, he took the bloody clothes and guns and cleaned up the aftermath.
[5] In summary, the Crown’s position is as follows:
Mr. Funes conceived the plan for the robbery of the Rozz Banquet Hall and put the plan in place.
Mr. Funes needed guns to implement and carry out the robbery.
Mr. Funes arranged to get the people he needed and the people he used were known for carrying and using guns.
Mr. Funes attended at the scene of the Rozz Banquet Hall to ensure the plan was carried out.
Mr. Funes had arranged for Nirm to be the inside contact and let him know the right time to carry out the robbery.
Mr. Funes controlled the clean up after the failed robbery and shooting of Mr. Nedd.
The intercepts filed demonstrate that Mr. Funes counselled others how to avoid and hinder the police investigation.
[6] All of this is inherent and consistent with the jury verdict.
[7] The Crown urges the Court to make these findings and on that basis the Crown points to the following aggravating factors relevant to sentence:
The crime was motivated by greed. The robbery was dangerous and brazen designed solely for the purpose of stealing a large sum of money (up to $100,000).
The harm associated was foreseeable.
There is no expression of remorse. In one of the intercepts Mr. Funes and Nirm are joking about what happened. Mr. Funes remarks, “Next time let’s not kill anyone.”
The incident drove a large group of people inside the Rozz Banquet Hall into a state of panic and chaos, hiding under tables and trying to exit the hall.
Sam Parker was pistol whipped. Mr. Davis had a gun pointed at his head.
Mr. Owusu was shot and a bullet left in his body.
Mr. Nedd was killed. Mr. Nedd was the Good Samaritan trying to help Mr. Parker.
The Victim Impact Statements are strong and profound.
Mr. Funes is not a youthful first offender. He has a criminal record: for violence. The criminal record is as follows:
i) July 18, 2007 dangerous operation of a motor vehicle; sentence to $1,000 fine;
ii) August 19, 2008 assault peace officer; sentence to suspended sentence and 18 month probation;
iii) October 30, 2008 assault; sentenced to conditional discharge 12 months probation;
iv) May 15, 2009 assault; sentenced to conditional discharge 12 months probation;
v) July 8, 2010 possession under $5,000 x 2; break and enter x 4 and fail to comply with recognizance; sentenced to one day on each count and 24 months probation;
vi) October 7, 2011 fail to comply with probation; sentenced to suspended sentence and 10 months probation; and
vii) November 7, 2011 fail to comply with probation; sentenced to two days jail.
viii) July 19, 2013 possession of a loaded firearm s. 95(1), sentenced to 4 years; possession of Winchester 12 gauge sawed-off shotgun while prohibited s. 117.01(1), sentenced to 1 year consecutive; careless storage of a firearm, sentenced to 6 months concurrent.
- The prospects of rehabilitation are slim. The intercepts after the incident demonstrates that not even Mr. Nedd’s death deterred Mr. Funes for criminal activity and being involved in the criminal world.
[8] In all of these circumstances the Crown submits that the appropriate sentence is 12 years in a penitentiary. The Crown also seeks a DNA order and a section 109 order for life.
Position of the Defence
[9] The defence agrees with the Crown that I do have to make some findings of fact. It was open to the jury to find that Mr. Funes was an aider and abettor so my fact finding task is made more difficult.
[10] The defence submits that the common factor in this robbery was not Mr. Funes. It was B (Gregory Brown) who introduced Mr. Funes to Mr. Morrone. The idea of the robbery comes from B, not Mr. Funes. The defence argues that although Mr. Funes is involved in the robbery he was not the planner or organizer.
[11] According to the testimony of Mr. Morrone it was Mr. Morrone who organized it all and arranged to have Mr. Alexis, Mr. Owusu and Mr. Kelly to be armed during the robbery.
[12] To strengthen that position the defence points to the testimony of Nirm that there was no discussion with him and Mr. Funes about using weapons.
[13] In summary the defence submits the following:
At its highest Mr. Funes was only a party to the robbery.
There is no evidence Mr. Funes was aware that guns would be used.
The role that he played was minimal.
The Court cannot use the clean up or intercepts to impute prior knowledge that guns would be used.
It was not foreseeable by Mr. Funes that Mr. Parker would be pistol whipped, or that Mr. Davis would be held at gunpoint or that Mr. Nedd would be shot and killed.
The character evidence shown in the intercepts cannot be used by the Court on the basis that the Court does not punish people for words and thoughts. There is no evidence Mr. Funes carried out any of these intentions.
[14] The defence submits that the sentencing principles applicable in this case are denunciation and general deterrence, specific deterrence and rehabilitation. The defence does concede, however, that rehabilitation is not a significant factor in this case, however, as Mr. Funes is only 28 years of age, it is still important.
[15] The defence points to the following mitigating factors and personal circumstances of Mr. Funes for the Court to consider:
Mr. Funes is only 28 years of age and will be able to make a meaningful contribution to society after his release from prison.
Mr. Funes is a dual citizen, Canadian plus he is a citizen of El Salvador.
Mr. Funes has 5 siblings, three are in Canada and two are in El Salvador. When he was two years old his parents, himself, and his siblings, Jose, Rose Marie and Jim moved to Montreal.
When he was four his parents separated. From the age of four to nine he was cared for by his Aunt. His father had returned to El Salvador. Mr. Funes and his brother Jim went to live with their father there. This was 1995, one year after the war ended in El Salvador.
He really did not know his father. There was turmoil and unrest in El Salvador. Mr. Funes missed his Aunt here in Canada while in El Salvador. He was kicked out of school. Mr. Funes worked for his father as a mechanic. They lived in the slums of El Salvador. The country was filled with violence and gangs ran the country.
Mr. Funes lived in the jungles of El Salvador and had to hunt for food.
At the age of 14 his mother agreed to take him back to live with her. He went back to school in grade 9. School was a difficult transition. At 15 years of age he went to work. He worked at McDonalds; Famous Player Movie Theatre; as a meat packer and construction.
He has two daughter’s with his girlfriend Victoria. At the age of 22 he moved in with her to live with her parents.
Up to the summer of 2011 he worked for his uncle in construction.
Mr. Funes has been in custody since February 2012.
Mr. Funes’ daughters are ten and eight years of age. He has a good relationship with them and they are very supportive as is their mother, Victoria. Victoria wants Mr. Funes to stay involved in Vanessa and Cassandra’s lives.
Mr. Funes’ ultimate goal is to finish school. While at Maplehurst he has been taking courses to obtain his GED Equivalency. His long term goal is to have his own trucking company.
[16] The defence submits that the appropriate sentence is eight years in a penitentiary.
Victim Impact Statements
[17] The Crown filed two Victim Impact Statements. One from Kearn Nedd’s brother, Kendall Nedd, and one from his mother Linda Nedd. These Statements are set out in Tab 6 of the Crown’s Book of Materials.
[18] I will not review these statements in these reasons, however, I do wish to state that the death of Kearn Nedd has had a significant and lasting impact on Kendall and Linda Nedd.
Analysis and Conclusions
Findings of Fact
[19] In order to determine the appropriate sentence for Mr. Funes, I must, to some extent, determine the facts that ground the finding of manslaughter.
[20] In R. v. Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96 the Court set out the following at paras. 17, 18, 21 and 22:
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”: R. v. Brown, 1991 73 (SCC), [1991] 2 S.C.R. 518, p. 523. The sentencing judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty” (Criminal Code, s. 724 (2)(a)), and must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R. v. Braun (1995), 1995 16075 (MB CA), 95 C.C.C. (3d) 443 (Man. C.A.).
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: Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact that was disclosed by evidence at the trial to be proven” (s. 724 (2)(b)). 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: ss. 724 (3)(d) and 724(3)(e); see also R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368; R. v. Lawrence (1987), 1987 9452 (ON SC), 58 C.R. (3d) 71 (Ont. H.C.). 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 issue on sentencing are, and then find such facts as are necessary to deal with those issues.
However, the trial judge did not stop with these conclusions. He went on to make detailed findings of fact on Constable Ferguson’s conduct. It was open to him under s. 724 (2)(b) of the Criminal Code to supplement the jury’s findings insofar as this was necessary for sentencing purposes. However, it was not open to him to go beyond what was required to deal with the sentencing issues before him, or to attempt to reconstruct the logical process of the jury: Brown; Fiqia. Nor was it open to him to find facts inconsistent with the jury’s verdict or the evidence; a trial judge must never do this. The trial judge in the case at bar committed both these errors.
First, the trial judge erred in attempting to reconstruct the logical reasoning of the jury. The law holds that the trial judge must not do this, and for good reason. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case: R. v. Thatcher, 1987 53 (SCC), [1987] 1 S.C.R. 652. It is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury’s findings.
… The onus of course, is on the Crown to establish aggravating factors in the sentencing process beyond a reasonable doubt. (See R. v. Gardiner, 1982 30 (SCC), [1982] 2 S.C.R. 368.)
[21] I am satisfied beyond a reasonable doubt that the evidence called at trial establishes the following facts:
Mr. Funes was a principle in the organization and planning of the robbery at the Rozz Banquet Hall. The evidence also establishes that it was Mr. Morrone who secured and arranged for Mr. Alexis, Mr. Owusu and Mr. Kelly to carry out the robbery.
Mr. Funes was responsible for obtaining the particulars of the Poker Tournament from the inside guy, namely Nirm.
Mr. Funes no doubt was interested in the robbery and B was responsible for introducing Mr. Funes to Mr. Morrone. Mr. Funes arranged to have Nirm be the inside man who would let them know when the robbers were to go in.
I cannot agree with the defence position that Mr. Funes was only an aider or abettor. I find that Mr. Funes was a principle and that his duties included arranging for the inside man to let them know when to go in.
I am also satisfied that Mr. Funes knew or ought to have known that the robbery would be conducted by those tasked to go in while armed. Mr. Funes knew that there would be over 100 people at the Banquet hall. Mr. Funes also knew that there would be a large sum of money (up to $100,000) available to be robbed. Mr. Funes knew there would likely be security at such a large event. Finally, Mr. Funes knew or ought to have known that to carry out this large scale robbery those involved would have to be armed in the event that the organizers or any of the players resisted. It is a logical and reasonable inference that Mr. Funes would have known or ought to have known that the plan required a degree of force and that degree of force pointed at the use of guns.
Mr. Funes was at the scene at the relevant time not as an aider or abettor but as one of the principles to ensure that the robbery proceeded according to plan. He was involved in the communication that Nirm eventually has with the number associated to Kelly and Nirm giving the signal for the robbers to go in.
[22] Both the Crown and the defence filed Case Briefs. I do not intend to review all of the cases but I do wish to review some.
[23] R. v. Francis 2006 10203 (ON CA), [2006] O.J. No. 1287, Francis was convicted of manslaughter and robbery. He was sentenced to 15 years for the manslaughter. I am satisfied, however, that the facts in Francis are different than those in the case at bar and the conduct attributed to Mr. Funes.
[24] R. v. Whyte [2001] O.J. No. 212, Whyte was convicted of manslaughter. He was sentenced to 14 years. The evidence established that Whyte was a willing party to a robbery with an armed accomplice.
[25] R. v. Marini [2006] O.J. No. 4072, Marini was convicted of conspiracy to commit robbery, robbery, aggravated assault and manslaughter. At paragraph 78 Justice Clark sets out the following:
78 In R. v. Whyte, [2001] O.J. No. 212, a case provided by Mr. Lafontaine, the Court of Appeal upheld a sentence of fourteen years imposed by Ewaschuk J., [1997] O.J. No. 5462, on an offender for the offence of Manslaughter committed by the accused in the course of robbing a drug dealer. Because of a lengthy record, which included firearms offences, the trial judge had considered the accused to be approaching the “worst offender” status. That is not Mr. Marini’s situation. However, in terms of the likelihood of bodily harm, the Court of Appeal noted that the accused had been “a willing party to a robbery with an armed accomplice.” That is Joe Marini’s situation.
At paragraphs 115 to 118, Justice Clark states:
115 This case has the following mitigating factors:
(i) The accused is a first offender; and
(ii) The accused has strong family support.
116 This case has the following aggravating factors:
(i) The initial offence of robbery was preceded by a conspiracy to commit it;
(ii) The offence of robbery involved considerable planning, including surveillance and multiple prior break-ins into the Lash jewellery store, each a serious offence in itself;
(iii) A loaded firearm was used;
(iv) The perpetrators were masked;
(v) The initial plan involved a degree of violence that had a high risk of serious bodily harm and possibly death;
(vi) There was serious injury to Mark Lash from the initial violence;
(vii) Joe Marini was an active participant in the initial violence;
(viii) The shooting of Mr. Lash nearly resulted in his death;
(ix) The lasting trauma to Mark Lash;
(x) That Niv Erez was executed;
(xi) The property the robbers hoped to steal had a wholesale value of approximately $2 million dollars;
(xii) The vulnerability of shopkeepers as a class of victims; and
(xiii) The accused attempted to obstruct the course of the investigation by attempting to destroy evidence, namely, by taking his car to Rogers Road Auto body to have the interior removed.
117 Based on those factors, I am of the view that the appropriate range of sentence is between ten to fifteen years to properly take account of the principles of deterrence and denunciation, which must be the foremost considerations in such a crime.
118 Having said that, guided by fact that the accused is a first offender and by the principle of parity respecting the other offenders in this case, I am of the view that an appropriate sentence in this case, is one of twelve years. As earlier stated, considering his pre-trial custody and the conditions and length of his pre-trial release, I give Mr. Marini a total credit of two years time served.
[26] R. v. Douglas 1996 666 (ON CA), 1996 Carswell Ont. 2456, Douglas pleaded guilty to manslaughter. Douglas was sentenced to 7 years. Both accused in this case were armed with firearms but had no intention to kill. The facts are set out at para. 3 to 5 as follows:
3 Douglas Newton, the appellant’s co-accused, owned an automobile repair shop in Brampton, Ontario. The victim Blakemore left an unplated pick-up truck on the repair shop lot so that an employee of Newton’s could repair it. Newton’s landlord warned him that unplated vehicles were not allowed on the lot. Newton was unsuccessful in contacting Blakemore and by the time Blakemore returned to the repair shop, the truck had been removed. Blakemore demanded cash to replace the truck and threatened to harm Newton’s family unless he paid. The extortion did not end even after Newton paid Blakemore $3,000.00: Blakemore simply added another $1,000.00 to Newton’s debt, and threatened to add more.
In August, 1993 Newton asked the appellant, a truck driver and customer of Newton’s, to help him confront Blakemore. The appellant and Newton agreed to arm themselves with guns and to fire shots above Blakemore’s head and between his legs, but to engage in no other gun play unless Blakemore was armed.
The confrontation was fatal. Mr. Blakemore went to the repair shop unarmed but the appellant, who had been hiding in the washroom awaiting a signal heralding Blakemore’s arrival, heard a gunshot he thought was fired by Blakemore. The appellant exited the washroom and he and Newton shot and killed Blakemore. They later buried the victim’s body at a farm.
[27] R. v. Bates 2009 ABQB 379, in this case the accused pleaded guilty to manslaughter. The sentence was 8 ½ years. At paragraph 40 the Court states:
[40] I do find, however, that the aggravating factors include that Bates was the instigator; that it was his gun and shell that was provided to Gittens; that he recruited Woods and Gittens to assist him the commission of an armed robbery that was planned to enable Bates’ criminal occupation of drug trafficking; that Bates conceived and executed this plan while under a firearms prohibition; that he engaged in subsequent activity after the offence that he believed to be criminal, and in criminal conduct.
[28] I am satisfied that the following aggravating factors are applicable in this analysis:
The crime was motivated solely by greed and an opportunity to obtain a large sum of money.
The robbery was carried out in a dangerous and brazen manner with a total disregard for the safety of over 100 people in the banquet hall.
The robbers were armed with dangerous weapons putting numerous people at risk.
Mr. Funes is not a youthful first offender. He has a significant criminal record.
During the failed robbery Mr. Parker was pistol whipped and Mr. Davis had a gun pointed right at his head. Mr. Nedd, acting as a Good Samaritan, is fatally shot. The incident drove a large group of people inside the hall into a state of panic and chaos, hiding under tables to avoid the gunfire and desperately trying to exit the hall.
The Victim Impact Statements demonstrate in no uncertain terms the devastating impact the death of Kearn Nedd has had and continues to have on his brother and mother.
[29] The cases referred to by the defence are sentences imposed following a plea of guilt. Of course Mr. Funes cannot in any way be penalized by having a trial. He does not, however, in those circumstances, receive the benefit attached to a plea of guilt and an expression of remorse in doing so.
[30] It is noted that Mr. Funes, when asked if he had anything to say, apologized to the Nedd family. He said he never meant for anyone to get hurt. He knows an apology will not bring Kearn Nedd back.
[31] There is no doubt that Mr. Funes has had a difficult background. Life in the jungles of El Salvador could not have been easy and surely his exposure to the violence that existed there has had a significant and lasting effect on the choices he has made upon his return to Canada.
[32] Mr. Funes, however, had choices to make. He has to now realize that the decision to enter the criminal world has serious consequences not only for him but now, starkly, for his two daughters.
[33] Mr Funes is a relatively young man. He has a lot of life left to live. The question that is still to be answered is whether he can be rehabilitated.
[34] There is no issue that the significant principle of sentencing in this matter relates to denunciation and general deterrence. In addition to that, and in light of his criminal record and character, specific deterrence is also in play.
[35] What is extremely troubling is how Mr. Funes reacted to the aftermath of their failed robbery attempt. His comment to Nirm “Next time let’s make sure no one is killed” is very telling. The intercepts filed at the sentencing hearing demonstrate that not even the death of Kearn Nedd is a deterrent to continuing in a life of crime. How then is Mr. Funes a candidate for rehabilitation? The record does not support that he is and the defence quite rightly concedes that, although relevant at this sentencing, it is not a significant factor.
[36] What then is the appropriate response by the Court in addressing the proper sentence for Mr. Funes. The cases filed by the Crown and the defence are helpful but it is abundantly clear that each case is dependent on the circumstances of the case and the individual circumstances of the offender. Sentencing is a very individualized process.
[37] Sections 718 and 718.1 of the Criminal Code set out the following:
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.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[38] Mr. Funes was not a minor player in this failed attempt to rob the Rozz Banquet Hall that resulted in the death of Kearn Nedd. There is no sentence this Court can impose that can return the Nedd family to the life they knew prior to Kearn Nedd’s death.
[39] However, this Court can send a clear and strong message to Mr. Funes and to others of like mind that the cost of being engaged in a criminal lifestyle is high. The cost is the loss of freedom; the cost is the loss of family; the cost is not being able to enjoy a relationship with your daughters or your friends; the cost is delaying any prospects of achieving your potential in contributing in a meaningful way to society. The ultimate loss of course, was the life of an innocent young man, Kearn Nedd.
[40] Mr. Funes, you saw firsthand the carnage and destruction that a criminal gang lifestyle had on the world you lived in, in El Salvador. Unfortunately rather than avoiding similar violence and criminal conduct you were drawn to it. The lure of easy money is tempting but at the end of the day it is not that easy at all. In this case a person died. A brother, a son, a friend to many, died in a brazen and callous attempt to steal money.
[41] Society as a whole, and this Court, cannot and will not tolerate this kind of senseless violence in our community. The message to you and others must be a strong one.
[42] Mr. Funes please stand up:
You will be sentenced to 11 years in a penitentiary, consecutive to the time you are presently serving.
A DNA order shall be issued in the usual form.
A Section 109 order shall issue for a period of life.
Fragomeni, J.
Released: September 23, 2015
COURT FILE NO.: CRIMJ(P) 479/13
DATE: 2015 09 23
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BRIAN FUNES
REASONS FOR SENTENCE
Fragomeni, J.
Released: September 23, 2015