CITATION: R. v. Tayongtong, 2017 ONSC 6436

COURT FILE NO.: Crim J(P) 496/14

DATE: 20171027

SUPERIOR COURT OF JUSTICE - ONTARIO

BETWEEN:

HER MAJESTY THE QUEEN

Crown

v.

NELSON TAYONGTONG

Defendant

BEFORE: Ricchetti, J.

COUNSEL: N.J. Bridge and G. Hendry for the Crown

M. Moon and K. Perchenok for the Defendant

HEARD: October 23, 2017

RULING ON PAROLE INELIGIBILITY PERIOD

[1] On October 18, 2017, Mr. Tayongtong was convicted by a jury of the second degree murder of Aicha Saludares on September 9, 2012.

[2] As required by law, Mr. Tayongtong is hereby sentenced to imprisonment for life.

[3] The sole remaining issue is the period of parole eligibility pursuant to s. 745.4 of the Criminal Code.

BACKGROUND

[4] On September 8, 2012, just before 6:00 a.m., Elma Saludares and Edwin Nene, her boyfriend, left the apartment for work. Aicha and Mr. Tayongtong were still in the apartment.

[5] Mr. Tayongtong murdered Aicha with a knife or knives after Elma Saludares and Edwin Nene had left.

[6] Aicha’s body was found on the kitchen floor in a large pool of blood. She was facing downward. Aicha had defensive wounds. There were wounds to Aicha’s front and back, neck, legs, and abdomen. There were a total 138 stab and incise wounds to Aicha’s body.

[7] The murder was as brutal as imaginable. Many knife wounds were inflicted on the face and neck of Aicha. Such force was used by Mr. Tayongtong that the tip of a knife, broke off and remained imbedded in Aicha’s mandible. In another wound, the inside of Aicha’s mouth was very badly cut. The blood spatter evidence at trial established, beyond a reasonable doubt, that Aicha was stabbed repeatedly by Mr. Tayongtong while she laid on the floor.

[8] After the murder, a blue handled knife had been placed in Aicha’s right hand by Mr. Tayongtong. Whether this was a feeble attempt to try to establish Aicha was using a knife to instigate the attack or defend herself against an intruder is not clear on the evidence.

[9] Mr. Tayongtong, after the murder of Aicha, went to the washroom and washed up, picked up his medicine and left the apartment, leaving Aicha’s mutilated body to be found by her mother or Edwin Nene when they returned from work.

POSITION OF THE PARTIES

[10] The Crown seeks a period of parole ineligibility of 20 years notwithstanding an acknowledgement that the “usual” range is 12 to 17 years.

[11] The Crown also seeks a DNA Order and a Weapons Order for life.

[12] The Defence seeks a period of parole ineligibility of 12 to 15 years, but acknowledges that the period should be closer to the top of the range suggest by the Defence.

[13] The Defence does not dispute the ancillary orders sought by the Crown.

THE LAW

[14] In R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, the Supreme Court articulated the standard to be applied in assessing the exercise of a trial judge's discretion to set the parole ineligibility period under the Criminal Code:

... as a general rule, the period of parole ineligibility shall be for 10 years but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end an extension of the period of parole ineligibility would not be unusual, although it may well be that, in the median number of cases, a period of 10 years might still be awarded.

[15] In Shropshire, the Supreme Court canvassed the appropriate factors and principles which should guide trial judges in setting the parole ineligibility period under the Criminal Code:

II. At issue in this appeal are the factors and principles that should guide a trial judge in determining whether to extend the period of parole ineligibility on a second degree murder conviction beyond the statutory minimum of 10 years.

XXIII. The only difference in terms of punishment between first and second degree murder is the duration of parole ineligibility. This clearly indicates that parole ineligibility is part of the "punishment" and thereby forms an important element of sentencing policy. As such, it must be concerned with deterrence, whether general or specific. The jurisprudence of this Court is clear that deterrence is a well-established objective of sentencing policy. In R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, La Forest J. held at p. 329:

In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender. No one would suggest that any of these functional considerations should be excluded from the legitimate purview of legislative or judicial decisions regarding sentencing.

Section 744 must be concerned with all of the factors cited in Lyons. In R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, the importance of structuring sentences to take into account the individual accused and the particular crime was emphasized. This is also a factor that any order made pursuant to s. 744 ought to take into consideration.

XXIV. The exercise of a trial judge's discretion under s. 744 should not be more strictly circumscribed than the sentencing itself. The section does not embody any limiting statutory language; rather it is quite the contrary. In its terms, it is very similar to s. 745, which permits an application to be made to reduce the parole ineligibility period after 15 years of incarceration. Section 745 has recently been given judicial scrutiny by this Court in R. v. Swietlinski, 1994 CanLII 71 (SCC), [1994] 3 S.C.R. 481. That case involved an assessment of the relevant considerations for a jury hearing a s. 745 application; Lamer C.J. concluded at p. 500:

It is true that deterrence is one of the functions of the penalty and that it is therefore legitimate for the jury to take this factor into account when hearing an application under s. 745.

There is no reason why the functions of s. 744 should be given a more restrictive interpretation than those of s. 745.

[16] The parole eligibility range where an offender has murdered his spouse was recently re-affirmed by the Court of Appeal in R. v. French, 2017 ONCA 460:

[28] Amicus also supports the appellant’s appeal against sentence. Amicus submits that the trial judge erred in principle by imposing a 17 year parole ineligibility term which was outside the range of 12 to 15 years set by this court in McKnight (1999), 1999 CanLII 3717 (ON CA), 135 C.C.C. (3d) 41 (Ont. C.A.). Amicus submits that if 17 years was in the range, the sentence is manifestly unfit. The trial judge also erred by finding that the murder was planned and treating that as an aggravating factor, when the jury acquitted the appellant of first degree murder.

[29] In our view, the trial judge made no errors in principle in imposing the 17 year parole ineligibility period.

[31] With respect to the range, cases from this court including R. v. Wristen (1999), 1999 CanLII 3824 (ON CA), 141 C.C.C. (3d) 1, and R. v. Czibulka, 2011 ONCA 82, 267 C.C.C. (3d) 276, allow a range up to 17 years in circumstances where there are no mitigating factors or remorse. The trial judge’s determination is entitled to deference. The sentence was not unfit.

(emphasis added)

ANALYSIS

Recommendations of the Jury

[17] Section 745.4 of the Criminal Code requires that this court consider the recommendations of the jury regarding parole ineligibility.

[18] In this case, 8 members of the jury recommended the parole ineligibility period be set at 25 years, 3 members of the jury at 15 years and one juror made no recommendation.

[19] The jurors’ recommendations, are a factor to be considered, but are not determinative of the appropriate parole ineligibility period. See R. v. Olsen, 1999 CanLII 1541 (ON CA), [1999] O.J. No. 218.

The Character of the Offender

[20] Mr. Tayongtong is 44 years old. He has no criminal record. According to the trial evidence, his employment history in Canada was sporadic at best.

[21] There is no evidence to determine whether Mr. Tayongtong can or will be rehabilitated.

[22] The Defence submits that Mr. Tayongtong is remorseful and points to Mr. Tayongtong’s statements in court on March 11, 2015. Mr. Tayongtong admitted he murdered Aicha when he said “I am so sorry for what happened between me and my wife” during the court appearance. At the same time, Mr. Tayongtong said that his wife no longer loved him and was stealing. He suggested that he was fearful for his safety if released. Having reviewed the entire exchange in court, I do not consider these in-court statements by Mr. Tayongtong to demonstrate that he is remorseful. These statements fail to demonstrate that he appreciates or is remorseful for the murder he had committed and to the harm to those who have suffered as a result. Even if the statements suggested that he was remorseful, the subsequent attempt to blame his wife and her family in some manner for what happened clearly overshadowed any possible remorse.

[23] There is no other evidence of remorse. Mr. Tayongtong has said nothing at the trial or the sentencing hearing which hints at any remorse.

[24] The Defence points to Mr. Tayongtong’s stroke in 2010 to submit that he is disabled. I am not persuaded this is a significant factor. First, the evidence is that, during the few months leading up to the murder, Mr. Tayongtong took martial arts lessons, went to the gym, walked frequently, and was capable of giving massages. In addition, Dr. Chan’s evidence was that this was a mild stroke and had seen him attend numerous medical appointments unassisted. Lastly, given the amount of strength and effort needed to commit this murder, it belies any finding that Mr. Tayongtong was physically disabled to the extent it impacts his sentence.

[25] There is also evidence that Mr. Tayongtong used a cane when necessary to persuade a doctor that he needed social assistance. But there is also some evidence that Mr. Tayongtong had used a cane on at least another occasion. I am not prepared to go so far as to find that the evidence shows Mr. Tayongtong was a manipulative man when it came to his physical abilities.

Nature of the Offence

[26] This murder occurred in Aicha’s home by her husband of nine years, although separated. Clearly, this is a brutal and vicious “domestic homicide”. The utterly brutal nature of the attack demonstrates a callous, personal animosity to Aicha, his wife of 9 years. There were numerous knife wounds to the face and neck. There were numerous knife wounds to the front and back. There was a particularly gruesome knife wound to the inside of Aicha’s mouth. The evidence establishes, beyond a reasonable doubt, that Mr. Tayongtong continued his knife attacks despite the fact Aicha was lying on the kitchen floor face down.

[27] The Defence submits that Aicha’s death was not slow. I disagree that the evidence shows this. There were numerous defensive wounds on Aicha. There are wounds to the front of her body – she was laying on the floor with wounds to her back when found. The medical evidence was that some of the wounds were inflicted while the heart was pumping. The evidence establishes, beyond a reasonable, doubt that this was not a quick or painless death. In any event, regardless of how quickly Aicha died, it does not mitigate the brutality of this murder.

[28] After murdering Aicha, Mr. Tayongtong placed a knife in Aicha’s hand, for some unknown reason, but to clearly show some aggressiveness or possible responsibility on the part of Aicha.

[29] The fact that Mr. Tayongtong went to the washroom, cleaned up in the sink, cleaned himself in the shower area, picked up his medication and then left, demonstrates a callousness to the murder and disregard for Aicha Saludares’ family who would find such a gruesome, haunting sight on their return to the apartment.

The Circumstances Surrounding the Commission of the Offence

[30] The Crown submits that an aggravating factor is the breach of trust or position of authority by Mr. Tayongtong. Besides being married but separated, there is no additional evidence to support that Mr. Tayongtong occupied a greater position of trust or power towards Aicha. This is not an additional aggravating factor. It is subsumed in the fact of their relationship.

[31] There was no history of violence.

[32] Right up until shortly before her death, Aicha was assisting and caring for Mr. Tayongtong to obtain social assistance and get medication at the drug store. When Mr. Tayongtong didn’t want to stay at the Tobermory home, Aicha persuaded her mother to take Mr. Tayongtong back into her mother’s home while waiting for a flight back to the Philippines. All the evidence shows a caring Aicha. There is no evidence that Aicha did anything to prompt any aggression towards her by Mr. Tayongtong, let alone her murder.

[33] The motive for the murder was prominent at the trial. Whether it was because Aicha had separated from Mr. Tayongtong, found another boyfriend and wanted to distance herself from Mr. Tayongtong or whether it was because of the dispute regarding the division of property – particularly what might happen to the Davao City property on which Mr. Tayongtong’s family lived, demonstrates that Mr. Tayongtong committed the murder because he was spurned by his spouse or for financial reasons. In either case, Mr. Tayongtong’s motive for committing the murder deserves strong denunciation by this court.

[34] I need not repeat the many comments of this court which recite and repeat the all too common societal problem of brutal domestic violence and the need to strongly deter and denounce such conduct in our society.

The Victim Impact Statements

[35] Many family members read their Victim Impact Statements in court at the sentencing hearing. There can be no doubt that the murder of Aicha had a profound and lasting negative impact on all her family.

[36] For a period of 11 days, until Mr. Tayongtong was arrested on September 19, 2012, the impact to Aicha’s family included being fearful of Mr. Tayongtong, who had disappeared from the murder scene after being the last person seen with Aicha.

[37] It is abundantly clear, that Aicha’s family continues to be haunted by the murder of Aicha. There are many examples in the Victim Impact Statements but let me simply quote two statements from Aicha’s mother’s statement, bearing in mind this is more than five years after Aicha’s death:

Losing Aicha in a horrific way left a big gaping hole, all of a sudden my protector is gone and the thought that I was not there to help and protect my daughter when she needed me the most left me feeling guilty, angry and caused me constant pain and that never goes away.

My darling daughter, wherever you are, I want you to know that as difficult as it is to get up each morning, I will draw inspiration from your strength and courage and continue to move on with my life.

[38] This sentiment and expression demonstrating the impact on Aicha’s family was echoed by the other family members when reading their Victim Impact Statements.

[39] Unfortunately, there is no sentence which will assist this family to overcome their deep sense of loss. A court does not impose a sentence to exact vengeance or retribution for Mr. Tayongtong’s actions. The period of parole eligibility must comply with the provisions and principles of sentencing set out in the Criminal Code, with guidance from the legal authorities.

CONCLUSION

[40] I have considered the nature of the offence and the circumstances surrounding its commission, the recommendations of the jury, and the character of Mr. Tayongtong.

[41] I have considered the authorities provided by the Crown and defence counsel. The cases are clearly fact-driven, but governed by the guiding principles established by the Supreme Court of Canada in Shropshire. Denunciation and deterrence, both general and specific, are the primary principles of sentencing engaged.

[42] The only mitigating factor here is Mr. Tayongtong’s lack of a criminal record.

[43] On the other hand, there are a number of aggravating circumstances, including:

a) This was a homicide of Mr. Tayongtong’s spouse (see s. 718.2(a)(ii) of the Criminal Code);

b) This murder was carried out in Aicha’s home, where she should have been safe and while Aicha was helping Mr. Tayongtong by providing him shelter for a few days;

c) This murder was carried out in the most brutal, cold-blooded and callous manner. It is simply impossible to imagine the amount of sheer hatred and drive that Mr. Tayongtong had that morning when he murdered Aicha; and

d) There was an attempt by Mr. Tayongtong to alter the crime scene to suggest some fault or responsibility on Aicha by placing a knife in her hand.

[44] In my view, the Crown has established that it is necessary and appropriate in these circumstances that a much longer period of parole ineligibility beyond the 10 years minimum period set out in the Criminal Code be imposed on Mr. Tayongtong.

[45] The circumstances of this case require that a parole ineligibility period be imposed at the top end of the range – 17 years.

[46] Mr. Tayongtong is hereby sentenced as follows:

a) Life imprisonment;

b) The 10 year parole eligibility in s. 745 is hereby increased by substituting 17 years of parole ineligibility from September 19, 2012;

c) A DNA Order; and

d) A Weapons Prohibition Order for life.

Ricchetti, J.

Date: October 27, 2017

CITATION: R. v. Tayongtong, 2017 ONSC 6436

COURT FILE NO.: Crim J(P) 496/14

DATE: 20171027

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

NELSON TAYONGTONG

RULING ON PAROLE INELIGIBILITY PERIOD

Ricchetti J.

Released: October 27, 2017