CITATION: R. v. Mannella 2017 ONSC 2333
COURT FILE NO.: CR-14-0049
DATE: 2017-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Mary Anne Mousseau, for the Crown
- and -
Anthony Mannella
Ryan Amy, for the Accused
Accused
HEARD: January 10, 2017 at Kenora, Ontario
Mr. Justice F. Bruce Fitzpatrick
Reasons On Sentence
[1] On August 24, 2016, following a four day trial that had concluded the week before, Anthony Mannella was found guilty of one count of assault causing bodily harm. A second count of assault with a weapon was stayed. He was acquitted of a charge of forcible confinement.
The Facts
[2] I do not propose to describe in detail the facts which I found as the basis to convict Mr. Mannella for the offence of assault cause bodily harm. These were set out in my reasons for judgment. In general, Mr. Mannella seriously assaulted his wife, Penny Lucas, during the evening of June 28 and 29, 2014. The events took place in their matrimonial home over a relatively long period of time throughout the night. Mr. Mannella was convinced (erroneously) his wife was cheating on him. He confronted her in a manner that could only be described as ridiculous. The couple verbally sparred. For his wife, this was a “last straw” and she had resolved to end the relationship. Throughout the night Mr. Mannella acted in an aggressive and agitated manner. At one point, he cut her on the hand when he came up from behind her with a kitchen knife. Ms. Lucas had held up her hand to avoid a slashing motion that Mr. Mannella had made with the knife in the direction of her throat. The wound was not superficial but was not sufficient for me to find it took the act beyond that of assault cause bodily harm.
Circumstances of Mr. Mannella
[3] Mr. Mannella is now 74 years of age. His present circumstances are somewhat out of the ordinary. Mr. Mannella was previously convicted of a second degree murder of his third wife. He had been in a relationship with this woman for six years from 1982 until February 1988 when she left him. She went to a woman’s shelter. Mr. Mannella found her there and shot her twice.
[4] Mr. Mannella was sentenced on September 18, 1989 to a term of life imprisonment without parole eligibility for 14 years on a conviction for second degree murder. He was granted full parole on July 28, 2005. He was returned to custody as the result of being charged with these offences. He has been in custody, both in the Provincial jail system and the Federal system at Stony Mountain in Manitoba since his arrest on June 29, 2014.
[5] An outline of Mr. Mannella’s present condition was presented to the Court by way of a report by a psychologist, Dr. Ken Somers. Dr. Somers met with Mr. Mannella for almost a day very recently in order to prepare his report. Dr. Somers has had a 17 year practice as an independent psychologist. His experience in the field spans almost 30 years. He was the chief psychologist at Stony Mountain for approximately eight years. It does not appear he treated Mr. Mannella when he was at Stony Mountain the first time.
[6] Dr. Somers report sets out in some detail Mr. Mannella’s significant health problems. I had heard about these before when Mr. Mannella testified at the trial. It also outlined Mr. Mannella’s background, his childhood, his adult life and how he scored on a formal tool (a WAIS-IV) designed to measure his cognitive state. I was also provided with personal information from the submissions of counsel.
[7] Mr. Mannella was 72 years old at the time he committed the offence at issue. He had been with Ms. Lucas for approximately five years and had been married exactly four years on the offence date. They were living in Ignace, Ontario in a house owned by Mr. Mannella.
[8] He is a first generation Canadian immigrating to Canada when he was eight. He had a relatively stable upbringing in Thunder Bay. His first brush with the law was when he was 17 (1959) when he was convicted of break and enter. He went to prison that same year for a fraud (bad cheques) conviction. He was jailed again in a provincial institution in 1962 and again in 1966.
[9] He was married for the first time in 1964. He had one child from that relationship. He was divorced in 1966. He met his second wife at that time. He lived with her for six years, married and then continued to live with her for another eleven years. It appears he had at least one child from that relationship, Stacey Mannella who wrote a letter in support of Mr. Mannella for his sentencing hearing. That relationship ended in 1983.
[10] The relationship with his third wife ended in her murder in 1988 as noted above. Mr. Mannella has eight children spanning four relationships and apparently has contact with only three of his children.
[11] Dr. Somers reports based on the WAIS IV testing that Mr. Mannella’s “intellectual functioning presents as being more limited than that of most others his age, such that he is likely to be more limited than are others his age in terms of problem-solving, explaining ideas or experiences, or in acquiring new information.” His intellectual profile is consistent with his own reports of having difficulty in school and having a current problem with memory. According to Dr. Somers, “he is prone to being relatively concrete and even somewhat rigid in his thinking style and beliefs… Mr. Mannella’s responses to stresses, conflict, or other difficulties that he faces in life are likely to be more limited and less effective than would be the responses for others his age.” He had a grade six education prior to graduating from grade 12 while incarcerated at Stony Mountain the first time.
[12] One of Mr. Mannella’s daughters and a brother of his second wife wrote letters in support of a “time served” sentence for Mr. Mannella. His daughter Stacey expressed her belief her father now poses “zero risk” as the result of his health issues.
[13] Mr. Mannella claims to be remorseful about the offence. He reports he has no further interest or ability to have any intimate relations with a woman.
Impact on the Victim and/or the Community
[14] Penny Lucas filed a victim impact statement. It chronicles a loving relationship gone very bad. She describes the incident in question as a “night from hell.” She has experienced significant trauma as the result of the assault. She reports difficulty sleeping and personal shame resulting from others blaming her for taking up with Mr. Mannella. She also has an inability to enjoy outdoor things like walking, walking her dog and swimming because of her fears arising from the assault. She is specifically afraid for her safety and that of her family from the possibility of Mr. Mannella’s release back in to the community. She believes if he is released, she will spend the rest of her life looking over her shoulder. She does note however that she is prepared to forgive Mr. Mannella.
Legal Parameters on sentence
[15] There is no minimum sentence for a conviction of assault cause bodily harm. The maximum penalty is ten years imprisonment.
Position of the Crown
[16] The Crown seeks a period of incarceration of five to seven years concurrent to his present life sentence. It also seeks ancillary orders relating to a lifetime weapons prohibition pursuant to section 110 of the Criminal Code. The Crown acknowledges the length of the sentence requested is significant.
[17] The Crown argues Mr. Mannella is a dangerous man. It draws attention to the similarities between the latest two acts of domestic violence against Mr. Mannella’s third and fourth wife in so far as both women were in the process of leaving him. For the offence at bar, the Crown stresses the need to denounce and deter acts of “domestic terrorism” (the Crown’s characterization). The lengthy period over which the events of the evening unfolded evidence an element of planning in the submission of the Crown. The Crown dismisses Mr. Mannella’s expressions of remorse as disingenuous. It argues Mr. Mannella was controlling, abusive and violent that evening. In light of his record of the most heinous act of domestic violence, only a mid-range penitentiary sentence will be fitting to this second act of domestic violence. The Crown put the Ontario Court of Appeal case R v. Kakekagamick, 2006 28549 (ON CA), 81 O.R.(3d) 664 before the Court as support for its sentencing position. The Crown argues the Court has no jurisdiction to order a period of probation as Mr. Mannella is already subject to a life sentence.
Position of the Defence
[18] Counsel for Mr. Mannella argues for the imposition of a sentence that reflects the time Mr. Mannella has been back in prison since his parole was revoked in June 2014. The defence also proposes a period of probation of three years. The fact this represents a basic sentence of two years, six months and eleven days (as at the date of sentencing) is not a recognition that a penitentiary sentence is appropriate but rather it is a practical solution. The defence suggests that absent Mr. Mannella’s record, a sentence in the upper reformatory range would be appropriate. Also, Mr. Mannella has volunteered that he is prepared to agree not to become involved in any further domestic relationships. Counsel for the defence fairly and appropriately put before the Court jurisprudence which suggests that a “time served” sentence may not be permissible in this circumstance for reasons discussed below.
Mitigating and Aggravating Factors
[19] Section 718.2 of the Criminal Code requires the sentencing judge to increase or decrease the sentence imposed by any aggravating or mitigating factors in this case. In this matter I find it is an aggravating factor that Mr. Mannella committed an act of violence against his domestic partner (718.2(ii)) and that Mr. Mannella committed this offence while out on parole (718.2(vi)).
[20] In my view, there are several mitigating factors. Mr. Mannella is aged and infirm. He has some family support in place once he can put himself in a position to convince the National Parole Board that he should be released.
Principles of Sentencing
[21] In this case, I am mindful of the sentencing principles contained in s. 718 of the Criminal Code of Canada.
[22] Section 718 provides:
- 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.
[23] Section 718.1 provides that it is a fundamental principle of sentencing that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[24] Section 718.2 requires the Court to impose a sentence that is similar to sentences imposed on other similar offenders for similar offences committed in similar circumstances. Where consecutive sentences are imposed, the cumulative effect must not be unduly long.
Reasons for Sentence
[25] I am persuaded that a sentence reflective of a period of time to be served in a penitentiary represents the most just, fit and appropriate sentence for Mr. Mannella in this case. However, I do not accept the five to seven year range as suggested by the Crown. I am mindful of Mr. Mannella’s record. He has now been convicted of a second act of domestic violence against another intimate partner. This is despite the rehabilitative efforts of the Federal Correctional Service. Also, he committed the act when he was an aged person with significant physical difficulties. To me, this indicates Mr. Mannella is still capable of mustering significant anger and rage which he failed to control and it caused bodily harm to his partner. I do not find that the act was planned, but clearly, Mr. Mannella’s bizarre and threatening behaviour occurred over an extended period of time during the night in question. It was not just inappropriate behaviour. It was threatening, aggressive and violent. It occurred in Ms. Lucas’ home, the place where any Canadian would want to feel the most safety. In my view, this calls for a lowest range penitentiary sentence of two years and one day.
[26] I am directed by the Criminal Code to also respect a principle of proportionality in sentencing. Like offences attract like sentences. It is a cornerstone of our justice system and our democracy which strives to create similar conditions for all citizens regardless of their personal circumstances. Crown counsel in submissions noted that it was difficult to find cases that remotely come close to the unique circumstances facing us here. This submission acknowledges there a great many cases dealing with sentences for this type offence, with a wide range of results. The only case put before the Court strictly going to the quantum of sentence was R v. Kakekagamick. It was a five year sentence to a first time offender for an aggravated assault. It was upheld by the court of appeal. I recognize it was for a different offence. Yet it was a crime of violence in a domestic context with a lengthy background of abuse where a first offender was given a significant penitentiary sentence. I can extrapolate from this, that for circumstances of significant domestic violence, in a repeat situation, where it appears corrective measures have failed to modify behaviour, that a penitentiary sentence can be appropriate and proportionate.
[27] I am not convinced that Mr. Mannella genuinely understands the gravity of what he did to Ms. Lucas. I say this because of comments from the report of Dr. Somers and from what Mr. Mannella said when he addressed the Court. Dr. Somers’ report notes Mr. Mannella’s tendency to adhere dogmatically to his beliefs. In his comments to the Court, Mr. Mannella noted while he was remorseful, he said that he had done his time for the murder of his third wife. With respect, he has not. He was granted parole from the incarceration section of his life sentence contingent on certain things. That parole was revoked because of the assault on Ms. Lucas. What the National Parole Board is going to do with Mr. Mannella now is up to them and him. However, he is still serving a life sentence. He is back in jail because of what he did to Ms. Lucas. It is hard time for Mr. Mannella no doubt. However it is time that was imposed on him for actions he did. Parliament has specifically recognized that committing an offence while on parole is an aggravating factor on sentencing. In my view, this also militates in favour of a low range penitentiary sentence.
[28] With regard to the fitness of this sentence, I am also very mindful of the impact that this had had on Ms. Lucas. She did take a chance on Mr. Mannella. A lot of women would not have given his past. She was violently attacked. She is still very concerned about Mr. Mannella being violent to her in future. I find this fear is very well founded. Unfortunately they are still both locked in family law litigation where apparently neither one has decided they can afford a lawyer. I heard about this in the evidence at trial. Control of the only major asset Mr. Mannella has, and Ms. Lucas’ right to live in what was her matrimonial home is stark conflict. There seems to me to be a real possibility that Ms. Lucas will have to deal with Mr. Mannella in future. A penitentiary sentence will serve to specifically denounce and deter Mr. Mannella from any future violence against his former partner.
[29] I am left now to deal with the issue of presentence custody. As noted above, Mr. Mannella has been in both provincial jails and at Stony Mountain since being arrested in June 2014. He did not seek interim judicial release. By virtue of section 719(3), recognition of presentence custody is discretionary and not automatic. The section provides:
In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
[30] If circumstances can ever be described as “usual” in a criminal case, usually an offender is given credit for presentence custody and the only issue is whether it should be given on an enhanced basis. In this matter, counsel for the defence, (properly and in line with counsel’s ethical duties) has brought to the Court’s attention authorities which suggest that Mr. Mannella is not entitled to be credited with time served in respect of this sentence. In one of the decisions provided, R. v. Wheeler, 2011 N.J. 391 (Newfound and Labrador Provincial Court) the court made reference to an Ontario Court of Appeal decision R. v. Wilson, 2008 ONCA 510 which at paragraph 42 – 45 sets out the proposition “if there is no connection between the pre-sentence custody time that an accused has accumulated and the charges upon which an accused is being sentenced, then there is no principled reason to allow any credit for that time. To do otherwise 'would distort the sentencing regime'.” This reasoning was reaffirmed very recently by the Ontario Court of Appeal in a decision R. v. Pammett, 2016 O.J. No 6700 (December 29, 2016). In Pammett, the Court set out at para 29 of the judgment that it would be an error of law for me to grant credit to Mr. Mannella for time served for an unrelated offence.
[31] In my view, the time Mr. Mannella has served since June 29, 2014 is related to his second degree murder conviction. It is not time served for the offence before me. I find there is no connection between Mr. Mannella’s pre-sentence custody time and this offence. I have no principled basis to either give him credit for his time served, or to impose a sentence of “time served.” I am keenly aware of Mr. Mannella having been in jail for some two and a half years up until now. It is a something I have taken in to account in crafting the sentence I am imposing on him of two years plus one day.
[32] Stand up please, Mr. Mannella.
[33] Taking all of this in to account, for the conviction of assault cause bodily harm on Penny Lucas, I am imposing on you a sentence of two years plus one day of incarceration. The sentence is to commence today. I am also imposing a life time weapons ban pursuant to section 110 of the Code. There shall be a DNA order pursuant to section 487.051 There shall be a victim impact surcharge of $200.00. It shall be payable on or before April 13, 2022. Also except when physically present in court, you are to have no contact, direct or indirect, with Penny Lucas for the duration of your two year and one day sentence save and except through counsel, or by yourself if you are self-represented and then only by letter correspondence. This contact shall only be for the purpose of attempting to resolve your family law dispute with her.
_______”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: April 13, 2017
CITATION: R. v. Mannella 2017 ONSC 2333
COURT FILE NO.: CR-14-0049
DATE: 2017-04-13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and -
Anthony Mannella
Accused
REASONS ON SENTENCING
Fitzpatrick J.
Released: April 13, 2017
/sab