Court File and Parties

COURT FILE NO.: 7626/15 DATE: 2017-06-28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ZACHARY TORCASO -and- DERECK MAIONE

Counsel: Mr. D. Didiodato, Counsel for the Crown Mr. E. McCooeye, Counsel for Zachary Torcaso Mr. M. Bennett, Counsel for Dereck Maione

HEARD: June 16, 2017

VARPIO J.

REASONS ON SENTENCE

OVERVIEW

[1] Mr. Torcaso and Mr. Maione were found guilty by a jury of their peers of a variety of offences that centre around the “home invasion” break and enter of Mr. Ryan Gridzak’s residence. The two offenders broke into the home and Mr. Torcaso assaulted Mr. Gridzak. The victim sustained minor (although certainly not trivial) injuries.

[2] The incident occurred on March 14, 2014 when Mr. Torcaso’s then-girlfriend, Ms. Nadia Crowe, went to Mr. Gridzak’s residence after a night drinking at a local bar. Ms. Crowe called Mr. Torcaso to pick her up from the residence. There is disputed evidence as to what, if anything, occurred as between Ms. Crowe and Mr. Gridzak on the night in question. Nonetheless, when Mr. Torcaso and Mr. Maione attended at the residence, they broke into the residence through a locked front door.

POSITION OF THE PARTIES

[3] The Crown seeks a 6 to 9 month sentence for Mr. Torcaso and a 4 to 6 month sentence for Mr. Maione. The Crown also seeks a period of probation as well as DNA and s. 109 Orders as against both.

[4] The Crown supports its position by pointing to R. v. Wright (2006), 216 C.C.C. (3d) 54 for the proposition that home invasion cases are quite serious and routinely attract penitentiary sentences. The Crown also points to R. v. Lee 2004 ABCA 46 as being factually similar to the case before me. In Lee, the Alberta Court of Appeal sentenced the accused to 6 months in custody for a crime whereby Mr. Lee broke into a home and beat up a man that was sleeping with Mr. Lee’s lover. Mr. Lee used a key when entering the home.

[5] The defence suggests that suspended sentences are appropriate for both Mr. Torcaso and Mr. Maione. They point to the generally positive PSR’s for both men as well as the fact that both youthful offenders have limited records (Mr. Torcaso has no record and Mr. Maione only has two convictions for breaching court orders). These factors demand that rehabilitation take the fore. The defence points to paragraphs 17 to 22 of R. v. Priest (1996), 110 C.C.C. (3d) 289 in support of this position. The defence also submitted that the facts of this case differ from those cases described in Wright.

FINDINGS OF FACT

[6] At paragraphs 12 and 15 of R. v. Brown, [1991] 2 S.C.R. 518, the Supreme Court of Canada described the exercise that a judge must undertake when sentencing guilty parties after a jury has rendered a verdict:

The divergence to which the majority of the Court of Appeal referred centres on the question of whether the judge is bound to assume that the jury took the most lenient view of the facts which would support the verdict. That issue does not arise here because the only factual question relates to the consequences and on that factual question the jury's decision is not in doubt. Thomas makes it clear that subject to the jury's express and implied factual findings the judge must make the necessary sentencing findings. He or she must, of course, make those findings in keeping with the law relating to the finding of facts on sentencing set out in R. v. Gardiner, [1982] 2 S.C.R. 368, which establishes that while all credible and trustworthy evidence may be accepted, disputed facts relied upon by the Crown in aggravation must be established beyond a reasonable doubt.

This statement reflects the correct principle, namely that the sentencer is bound by the express and implied factual implications of the jury's verdict. There are other authorities to the same effect: R. v. Speid (1985), 46 C.R. (3d) 22, at p. 47; Boyle and Allen, Sentencing Law and Practice (1985), at pp. 225, 227 and 229; Fox and Freiberg, Sentencing: State and Federal Law in Victoria (1985), at p. 48; Stockdale and Devlin, Stockdale and Devlin on Sentencing (1987), at p. 62.

[7] In this case, the jury found Mr. Torcaso guilty of breaking and entering into Mr. Gridzak’s residence. They also found him guilty of two counts of assault.

[8] The jury found Mr. Maione guilty of breaking and entering as well as assault with a weapon.

[9] The uncontroverted evidence in this case is that two men broke into Mr. Gridzak’s residence. The first man entered the residence and committed two assaults. This first man literally broke down the front door in order to enter the home. The first intruder then injured Mr. Gridzak.

[10] The second man entered the home subsequently and was seen by two witnesses with a knife in his hand as he backed Mr. Pettenuzzo into the kitchen.

[11] The only identity evidence before the jury capable of supporting the jury’s findings came from:

a) Ms. Crowe who identified Mr. Torcaso as the first offender through the door; b) Mr. Gridzak who stated that the first offender identified himself as being Mr. Torcaso; and c) Mr. Maione’s rejected plea to unlawfully being in a dwelling house

[12] The aforementioned evidence was not disputed. Accordingly, the only inference that can be drawn from the jury’s verdict is that Mr. Torcaso was the first person in the door while Mr. Maione was the second person.

[13] Accordingly, I find beyond a reasonable doubt that Mr. Torcaso was the first person in the residence, that Mr. Torcaso broke down the door and that Mr. Torcaso injured Mr. Gridzak.

[14] I also find beyond a reasonable doubt that Mr. Maione was the person who came down the hallway with the knife in his hand and backed Mr. Pettenuzzo down towards the kitchen.

[15] Interestingly, the Crown rightly conceded that once in the kitchen, Mr. Maione attempted to calm the situation. As such, I accept that Mr. Maione at various points played a “peacemaker” role in an otherwise violent incident despite having been found guilty by the jury.

[16] The Crown asked me to find that the instant break and enter fit the definition of “home invasion” as an aggravating feature of the case before me. Defence conceded the point. I accept that the matter fits the definition as per s. 348.1 of the Criminal Code of Canada which states that

Aggravating circumstance — home invasion

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

[17] The Crown also asked me to find that the case was a version of domestic violence. The Crown could not point me to specific evidence that supported such an inference. I note two things in this regard. First, Ms. Crowe appears to have played a central role in this matter by placing a phone call. This causes me to question what was said in that call. Secondly, I note that Mr. Pettenuzzo gave evidence that Mr. Gridzak and Ms. Crowe were alone in a darkened room prior to Mr. Torcaso’s arrival. These two pieces of evidence suggest that the crime may have had to do with Mr. Gridzak and Ms. Crowe’s involvement.

[18] Conversely, Mr. Gridzak’s evidence stated that the first intruder entered the home and stated words that are more consistant with a robbery motive. This would auger against a finding that the breaking and entering and assaults were domestic violence-related. I cannot therefore be satisfied beyond a reasonable doubt that the offences constituted domestic violence (and thus constitute an aggravating feature on sentencing) since Mr. Gridzak’s evidence in this regard leaves me in a state of reasonable doubt on this point.

THE OFFENDERS

[19] A review of both the PSR’s filed as well as the letters filed on Mr. Maione’s behalf reveals that both offenders have suffered tragedy. Both young men have had good friends pass away in recent years which has caused them considerable upset.

[20] The PSR also suggests that Mr. Torcaso may also suffer from some form of as yet undiagnosed mental illness.

[21] Mr. Maione’s support letters suggest that this incident was out of character for him in that he has demonstrated himself to be both accountable and trustworthy to those who know him. Mr. Maione attempted to plead guilty to a lesser and included offence and he apologized to the victims at his sentencing hearing. These factors demonstrate genuine remorse on his part.

ANALYSIS

[22] First, I am mindful of the sentencing provisions of section 718 of the Criminal Code of Canada which describe the different, and often competing, principles of sentencing to be applied by judges.

[23] I am also mindful of the defence’s submission to the effect that this home invasion is not of the kind described in R. v. Wright wherein the Court stated at paragraphs 14 and 15:

As this court also noted in S.(J.), supra, at para. 34, home invasion offences are particularly troubling "because they represent a violation of the sanctity of the home and of the sense of security people feel when in their homes - highly cherished values in our society - and because they are frequently perpetrated against vulnerable individuals." They must therefore be dealt with sternly by the courts. This concern was eloquently captured by Trafford J. in R. v. Soares, [1996] O.J. No. 5488 (S.C.J.) 5 at para. 286:

The sanctity of one's home is of fundamental importance in a free and democratic society. It is constitutionally recognized in our country. Everyone must not only be, but feel, secure in their residence. A society that tolerates significant criminal intrusions into the privacy of one's home is a society that forces it citizens to resort to self-help to protect themselves against such wrongs. Absent effective responses from the judiciary, the alternative is for citizens to arm themselves in anticipation of a need to defend themselves against such criminal enterprises. A society like that is not ours today, has not been ours in the past, and will not be ours in the future. The obligation of the Court is to give proper recognition to the sanctity of the home, to protect all citizens against such intrusions, and to thereby preserve the public's confidence in the administration of justice.

For these reasons, a lengthy penitentiary term is fully warranted upon conviction for a home invasion offence: R. v. Nelson (M.), (2001), 147 O.A.C. 358 at para. 15 (C.A.). This appeal raises the issue of the appropriate "range" of that penitentiary term, in the context of the fitness of the sentence imposed by the trial judge.

[24] The distinguishing feature of this case is that of surprise. In Wright and those cases that appear to follow, the victims of the home invasion did not appear to know that the guilty parties were attending at the residence and breaking into said residence in order to perpetuate a crime.

[25] In this case, the victims were aware that someone was on the way to pick up Ms. Crowe. All people located in Mr. Gridzak’s house were “partying” and were drinking heavily. These facts do not obviate guilt or diminish the culpability of the offenders however it must be noted that when the Ontario Court of Appeal described the penitentiary sentence range for home invasions, the cases dealt with surprise scenarios where offenders terrify unsuspecting victims.

[26] In this case, the Crown appears to have tacitly accepted this distinction given their sentencing position.

[27] I am equally mindful of the fact that the offenders are youthful people with no or limited criminal records such that rehabilitation ought to be the primary factor in sentencing.

[28] Despite the aforesaid mitigating factors, however, it cannot be said that the circumstances of this offence are such that the principle of rehabilitation demands that only a suspended sentence ought to be applied.

[29] As described in Wright, home invasions are serious crimes that demand serious repercussion. One cannot knock down a residence door in order to assault a resident and expect that the judicial system will not impose a meaningful term of custody. Indeed, Trafford J. is correct when he states that the judiciary must ensure that deterrence and denunciation take the fore in these cases lest home owners begin to avail themselves of “self-help remedies” that are often dangerous to society.

[30] Accordingly, while I accept that both offenders are otherwise good people who should be afforded every opportunity to rehabilitate, the nature of the crime committed is such that a custodial disposition is necessary in order to ensure that general deterrence and denunciation are given adequate weight.

[31] For Mr. Torcaso, his involvement in the matter is more serious. He broke the door. He was the first perpetrator in the residence. He caused injury to Mr. Gridzak. While his involvement does not rise to the level of those cases like Wright where unsuspecting victims are terrorized, it nonetheless requires a meaningful period of incarceration in order to give life to the principles of denunciation and deterrence. As such, I hereby sentence Mr. Torcaso to six months in jail followed by 2 years of probation with the following terms (as sought by the Crown) [1]:

1. Attend probation and counselling as directed;
2. That he have no contact, directly or indirectly, with Mr. Ryan Gridzak, or Mr. Adam Pettenuzzo;
3. That he not attend Mr. Gridzak or Mr. Pettenuzzo’s place of residence; and
4. That he not attend at 548 McDonald Avenue

[32] Mr. Torcaso will provide a sample of his DNA pursuant to the break and enter charge (primary) and the assaults (secondary).

[33] Mr. Maione has a lesser involvement in the matter. He did not physically injure anyone and, at certain points in the transaction, he attempted to calm the situation. Further, he attempted to plead guilty to a lesser and included offence which is an indication of remorse.

[34] In light of the foregoing, Mr. Maione is hereby sentenced to 60 days in jail, to be served intermittently. He will report to jail on Friday, June 30, 2017 at 5:00 p.m. and will be released from jail on Sunday, July 2, 2017 at 5:00 p.m. He will report every Friday at 5:00 p.m. and will be released every Sunday at 5:00 p.m. until he has served his sentence.

[35] While serving his custodial sentence, he shall be subject to the following terms of probation while not in custody:

1. He shall remain in his residence between the hours of 9:00 p.m. and 7:00 a.m. except to attend school, counselling, medical appointments or for employment purposes;
2. He shall refrain from drinking alcohol or using any non-prescription drugs;
3. Attend probation and counselling as directed;
4. That he have no contact, directly or indirectly, with Mr. Ryan Gridzak, or Mr. Adam Pettenuzzo;
5. That he not attend Mr. Gridzak or Mr. Pettenuzzo’s place of residence; and
6. That he not attend at 548 McDonald Avenue

[36] Once he has completed his custodial sentence, Mr. Maione will be subject to a 24-month term of probation with the following terms:

1. Attend probation and counselling as directed;
2. That he have no contact, directly or indirectly, with Mr. Ryan Gridzak, or Mr. Adam Pettenuzzo;
3. That he not attend Mr. Gridzak or Mr. Pettenuzzo’s place of residence; and
4. That he not attend at 548 McDonald Avenue

[37] Mr. Maione will provide a sample of his DNA pursuant to his convictions for both the break and enter as well as the assault with a weapon (primary offences).

[38] Both Mr. Maione and Mr. Torcaso will be subject to s.109 weapons prohibition order for a period of 10 years as a result of their convictions of offences described in section 348 of the Criminal Code of Canada.

Varpio J.

Released: June 28, 2017

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN - and – ZACHARY TORCASO -and- DERECK MAIONE REASONS ON THIRD PARTY SUSPECT, SELF-DEFENCE AND DURESS Varpio J.

Released: June 28, 2017

[1] All terms of probation shall also include all statutory terms (if not specifically addressed herein).