COURT FILE NO.: CR 16 1454

DATE: 20180411

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MOSES TORREZAO

Carson Coughlin, for the Crown

David Bayliss, for the Defendant

HEARD: March 23, 2018

REASONS FOR SENTENCE

SPROAT J.

Introduction

[1] The jury concluded that Mr. Torrezao was not guilty of second degree murder, but was guilty of manslaughter, in the death of Rupie Budhu which occurred on April 28, 2014. The two men lived on the same street with two houses between them. I will simply refer to the Budhu family living at house number 60 and the Torrezao family living at 66.

[2] Mr. Budhu lived at 60 with his wife, Ms. Lekhram, son Omar and two other children. Mr. Torrezao lived at 66 with Ms. Persaud, their son Nicholas, daughter Naomi, her partner and their infant child.

Circumstances of the Offence

[3] There was a history of animosity between certain members of the Budhu household and certain members of the Torrezao household. This is highly relevant to the sentencing because it informs Mr. Torrezao’s state of mind and provides context for his actions.

[4] Mr. Torrezao testified to incidents he observed, and also gave his understanding of a number of prior incidents involving the residents of 60, as follows:

a) August of 2012 – Mr. Budhu had a dispute with the neighbour at 64 and spit in his face and head butted him.

b) October 5, 2012 – Mr. Torrezao heard Omar threaten to “bust up” Nicholas and Mr. Torrezao called the police.

c) November 26, 2012 – Omar came to 66 and hit the car owned by a friend of Naomi with a baseball bat while someone was inside the car. Mr. Torrezao called the police.

d) Mr. Torrezao was not at home but received a call from his next door neighbour at 64 indicating that someone had been banging on his door telling Nicholas to come out and saying “we will kill you.” Mr. Torrezao called the police.

e) On March 8, 2013 Mr. Torrezao was in the garage with his son Nicholas. Mr. Budhu, Omar and about 10 men came over, some with pipes in hand. Mr. Budhu was in front and had a pipe. Mr. Torrezao picked up a cricket bat and held it up in the air but they kept coming so he closed the garage door. He heard banging on the garage door and later observed that the door was bent. Mr. Torrezao’s wife later told him that Mr. Budhu had pushed in through the front door and knocked her over and she hit her head. Mr. Budhu also threw a vase out onto the sidewalk. A steel chair had also broken the rear window of a car on the driveway.

f) As a result of this incident, Mr. Budhu entered into a peace bond. Mr. Torrezao correctly understood that because of the peace bond Mr. Budhu was not allowed to be on the property at 66.

g) March 13, 2013 – Mr. Torrezao heard banging on his door and then saw two people wearing black hoodies walking back towards 60

h) September 26, 2013 – Mr. Torrezao was informed that a friend of Omar’s had come and punched and head butted his son Nicholas. Mr. Torrezao called the police.

i) April 2, 2014 – Mr. Torrezao was at home with his wife. Two friends of Omar’s came and one man pulled down his pants and said that he was going to rape Mr. Torrezao’s wife and daughter.

j) April 27, 2014 – Mr. Torrezao was awakened early in the morning by a bang and a man who could not be identified was walking away. Mr. Torrazeo discovered a car bumper on his porch.

[5] Mr. Torrezao had never gone on the property at 60. There is no indication that he was ever the aggressor in these earlier incidents. In fact, he was criticized by members of his family for being too passive and for simply counseling them to ignore the members of Budhu family and their friends and associates.

[6] On the evening of April 27, 2014, Mr. Budhu had been socializing with friends. He had been consuming alcohol and his blood alcohol was more than three times the legal limit for driving. His friends put him in a taxi. There was a miscommunication between Mr. Budhu and his friends with the result that the taxi driver was advised to take Mr. Budhu to 66 instead of his home at 60. Mr. Budhu arrived at the Torrezao residence and did not appear to realize he was at the wrong house. The taxi driver repeatedly rang the doorbell at 66.

[7] Mr. Torrezao had a security system with video cameras which captured Mr. Budhu arriving at the door, the taxi driver repeatedly ringing the bell and the stabbing. The timeline is as follows:

a) 12:41:31 – Mr. Budhu is near the steps to the front door and the taxi driver rings the doorbell

b) 12:42:15 – the taxi driver rings the doorbell again

c) 12:43:03 – Mr. Budhu comes near to the door

d) 12:43:26 – the taxi driver rings the bell repeatedly while Mr. Budhu is at the door

e) 12:44:54 – Mr. Torrezao comes out of the house and immediately jabs a sword at Mr. Budhu. The sword had been purchased as a decorative item to be displayed in a holder.

[8] Dr. Rose, a forensic pathologist, testified that the stab wound was 10 centimetres deep. Once the skin was breached it would not require much additional force to penetrate the body. The sword did not hit any bone or cartilage. It severed the largest artery, and the largest vein in Mr. Budhu’s body. Dr. Rose testified that Mr. Budhu was very unlucky in terms of the extent of damage caused by the stab.

Circumstances of the Offender

[9] Mr. Torrezao is now 55 years of age. He was injured in 1996 and needed surgery and a spinal fusion. He has not been able to work since. In April, 2014 he weighed 140 pounds and was 5’4’’ tall.

[10] Dr. Panjwani, a psychiatrist who has treated Mr. Torrezao since 1998 for chronic pain and depression, testified at the sentencing hearing. He stated that it was his clinical opinion that Mr. Torrezao was likely to relapse into a severe depression with a potential suicide risk if he was incarcerated. Dr. Panjwani indicated that Mr. Torrezao had said he might harm himself if sent to jail. Dr. Panjwani acknowledged that he did not know a lot about the mental health supports that were available to prisoners. Dr. Panjwani also acknowledged that Mr. Torrezao has consistently denied suicidal ideation but stated that his concern related to how Mr. Torrezao would react if incarcerated.

Victim Impact Statements

[11] Mr. Budhu’s wife Angela Lekhram provided a thoughtful victim impact statement on behalf of herself and her children. Mr. Budhu’s 10 year old son also provided a victim impact statement explaining how his world changed on April 28, 2014. He drew a “before” and “after” drawing showing how his life had changed from smiling with his father on a sunny day to frowning and being alone on a rainy day.

Position of the Crown

[12] The Crown’s submission was that a sentence in the range of 8-10 years was appropriate. The Crown agreed that Mr. Torrezao should get 6 months credit for pre-trial custody of 3.5 months. The Crown submitted that Mr. Torrezao should receive relatively slight credit related to his house arrest bail condition.

[13] The Crown sought a s. 109 weapons prohibition prohibiting Mr. Torrezao from possessing the items referred to in s. 109(2)(a) for 10 years and the items referred to in s. 109(2)(b) for life. The Crown also sought a D.N.A. order. These orders are both mandatory and are granted.

Position of the Defence

[14] Mr. Bayliss agreed that there should be 6 months credit for pretrial custody. He submitted that Mr. Torrezao should get 16.5 months credit on account of his bail conditions which he calculated as 40 per cent of the eligible time after he was released and while awaiting trial.

[15] Mr. Bayliss then submitted that the proper sentence was 22.5 months such that the disposition should be time served with strict probation.

Additional Findings of Fact

[16] The Crown submitted that I should be satisfied beyond a reasonable doubt as to the following aggravating facts:

a) that Mr. Torrezao was aware that Mr. Budhu was grossly impaired by alcohol and intentionally armed himself with the sword instead of the less lethal police baton and bear spray that were in the house despite recognizing Mr. Budhu’s incapacity.

b) that in thrusting the sword forward Mr. Torrezao intended to cause significant bodily harm;

c) that Mr. Torrezao deliberately chose the more lethal sword over the less lethal police baton and bear spray that he had in the house.

[17] In R. v. Ferguson 2008 SCC 6, [2008] SCJ No. 6, McLachlin C.J., for the Court stated:

[16] This poses a difficulty in a case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the jury gives only its ultimate verdict. The sentencing judge therefore must do his or her best to determine the facts necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require the sentencing judge to arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case at hand.

[17] 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.).

[18] 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 issues on sentencing are, and then find such facts as are necessary to deal with those issues.

[18] As I will later explain in greater detail, I am satisfied that Mr. Torrezao was extremely frightened and alarmed after being awakened and realizing that Mr. Budhu was at the door. Mr. Torrezao was also angry at Mr. Budhu for being there. He could probably tell that Mr. Budhu was impaired to some extent. The fact that Mr. Budhu appeared somewhat impaired would not necessarily suggest to Mr. Torrezao that he was less threatening. I am certainly not satisfied beyond a reasonable doubt that Mr. Torrezao was able to gauge the extent of the impairment such that he had any awareness that Mr. Budhu did not pose a threat.

[19] Mr. Torrezao was awakened from his sleep and alarmed to find Mr. Budhu at the door. There was general panic in the home and a fan was knocked over in the upper hall. I am not satisfied that Mr. Torrezao made a conscious decision to opt for a lethal as opposed to a non-lethal weapon.

[20] I also conclude that a factor in Mr. Torrezao getting the sword was his legitimate concern there were additional men with Mr. Budhu and he thought that a sword might frighten them.

[21] I am satisfied beyond a reasonable doubt that Mr. Torrezao intended to jab Mr. Budhu with the sword. As Dr. Rose testified, however, either Mr. Torrezao pulled back on the sword or Mr. Budhu pulled back. Given Mr. Budhu’s extreme impairment, he was certainly not in a state to react or move quickly. If Mr. Torrezao had intended to inflict a deeper wound, by continuing to push the sword forward, he easily would have. On the video it appears that Mr. Torrezao jabbed the sword forward and then intentionally pulled it back. As Dr. Rose explained, it was extremely unfortunate and unlucky that the precise location of the stab resulted in a lethal wound.

[22] This conclusion is further supported by the fact that after the initial jab that proved lethal, Mr. Torrezao followed Mr. Budhu to the driveway and jabbed at him again. If Mr. Torrezao was intent on doing any real damage he could have. This jab, however, resulted only in a .4 cm cut on the embroidery on Mr. Budhu’s jacket.

Mitigating Factors

[23] The Crown agrees that Mr. Torrezao should be treated as a first time offender given that his only criminal conviction is for impaired driving.

[24] Mr. Torrezao has strong family support. Mr. Torrezao also suffers from chronic pain and depression. This will make any custodial sentence more difficult for him.

[25] Mr. Torrezao addressed the court and did express the fact that he was sorry and felt bad for the Budhu family and that he did not mean for Mr. Budhu to die.

Aggravating Circumstances

[26] After the offence was committed Mr. Torrezao washed off the sword and hid it. He initially lied to the police claiming to not know anything about the injury to Mr. Budhu.

[27] The death of Mr. Budhu has had a devastating impact on his family.

Credit for Pre-Sentence Custody and House Arrest

[28] Counsel agree that Mr. Torrezao should receive 6 months credit against any sentence on account of 3.5 months in pre-trial custody.

[29] Mr. Torrezao has been subject to bail conditions for approximately 42 months. He has been required to be in his home from 8:00 p.m. until 6:00 a.m. Outside of these hours, with one exception, he can only leave his home in the presence of a surety. The exception is that after the preliminary hearing he was allowed to travel to and from court without his surety.

[30] Ms. Persaud testified on the sentencing hearing that the house arrest prevented Mr. Torrezao from doing things that were important to him such as visiting his sister and father when they were in the hospital and visiting his daughter immediately after she gave birth. She also testified that Mr. Torrezao was very disturbed that he could not do things for himself and that he had to impose on her and ask for help.

[31] Ms. Persaud testified that, while there are four sureties, one was her sister who lives in Kitchener and is employed. The other sureties are another sister and her husband who are also responsible for dropping their grandchildren off at school. As such most of the surety duties fell to Ms. Persaud. She works as a clinical co-ordinator at a rehabilitation centre which is not near where the family now live which is outside of the Greater Toronto Area. She estimated that she has taken approximately four months off work to be with Mr. Torrezao while he needed to be out in the community.

[32] In R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 the offender had been subject to 18 months of house arrest and was credited with 5 months against his sentence on that account. Rosenberg J.A. for the Court explained:

[37] In summary, credit for pre-trial bail conditions should be approached in the following manner:

-- Time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor.

-- As such, the trial judge must consider the time spent on bail under house arrest in determining the length of sentence.

-- The failure of the trial judge to explain why time spent on bail under house arrest has not been taken into account is an error in principle.

-- The amount of credit to be given for time spent on bail under house arrest is within the discretion of the trial judge and there is no formula that the judge is required to apply.

-- The amount of credit will depend upon a number of factors including, the length of time spent on bail under house arrest; the stringency of the conditions; the impact on the offender's liberty; the ability of the offender to carry on normal relationships, employment and activity.

-- Where the offender asks the trial judge to take pre-sentence bail conditions into account, the offender should supply the judge with information as to the impact of the conditions. If there is a dispute as to the impact of the conditions, the onus is on the offender to establish those facts on a balance of probabilities in accordance with s. 724(3) of the Criminal Code. [page333]

[33] The bail condition was that Downes remain in his house at all times except in the company of his surety. The Court observed that, unlike most house arrest conditions, there was no exemption for medical necessities, employment or religious worship. The offender, therefore, was entirely dependent upon his surety if he wished to go out of the house.

[34] The Crown cited R. v. Reis 2017 ONSC 1961, [2017] O.J. No. 2044 (S.C.J.) in which the offender had been subject to house arrest for 722 days, which was varied to a curfew for an additional 559 days. Akhtar J. observed that the offender was the father of five young children so that the curfew would have little effect on his regular lifestyle. Further, the Crown had been prepared to consider a bail variation to delete the house arrest condition so the offender could work. The offender failed to provide a letter from a prospective employer and the variation request was not pursued. That would seem to indicate that the house arrest did not interfere with employment. In the result Akhtar J. gave four months credit for the 722 days spent on house arrest.

[35] As of today approximately 48 months have elapsed since the offence. Given that Mr. Torrezao is receiving 6 months credit for pre-sentence custody, there are 42 months of house arrest bail conditions to consider having regard to Downes.

[36] While I realize that this is not an arithmetic exercise, the credit in Downes was approximately 28 per cent and in Reis it was approximately 17 per cent.

[37] There is some merit to the Crown argument that, given the fact Mr. Torrezao was not employed and did not have an active social life, house arrest had a lesser impact on him. On the other hand, given his chronic pain and depression, being deprived of some of his few opportunities to be out and contribute, such as by visiting family in the hospital, would logically have a greater impact on him.

[38] On balance I would not depart greatly from Downes and so would credit with approximately 25 per cent of the 42 months of house arrest.

[39] As such Mr. Torrezao shall be credited with 6 months on account of pre-trial custody plus 11 months on account of the house arrest bail conditions.

General Principles of Sentencing in Manslaughter Cases

[40] In R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290, Bastarache J., writing for the court on the issue of the proper sentence in cases of provoked manslaughter, cited with approval the words of Fraser C.J. in R. v. Laberge (1995), 1995 ABCA 196, 165 A.R. 375, as follows:

Therefore, the court must look not only at the physical characterization of the act itself, but must assess a range of other considerations. These include the choice of weapon used to effect the unlawful act, the degree of force the offender used in perpetrating the act, the extent of the victim’s injuries, the degree of violence or brutality, the existence of any additional gratuitous violence, the degree of deliberation involved in the act, the extent to which the act reflected forethought of action or planning, the complexity of the act, what, if anything, provoked the act, the time taken to perpetrate the act and the element of chance involved in the resulting death.

[41] In R. v. Hermiz, [2007] OJ No. 1589, Hill J. provided a helpful summary of some principles of sentencing in manslaughter cases as follows:

[11] It has long been recognized that the crime of manslaughter attracts a broad range of sentence depending on the circumstances of the offence and offender: R. v. Stone (1999), 1999 688 (SCC), 134 C.C.C. (3d) 353 (S.C.C.) at 446 (the “broad sentencing range for manslaughter”); R. v. Clarke, 2003 28199 (ON CA), [2003] O.J. No. 1966 (C.A.) at para. 7 (“The range of sentence for the offence of manslaughter can vary immensely”); R. v. Clemons, 2003 MBCA 51 at para. 7 (“The sentencing options available to a sentencing court for this offence are like no other”); R. v. Dasilva, [1988] B.C.J. No. 1744 (C.A.) at 2 (“It is clear enough that sentences for manslaughter vary from a suspended sentence to sentences of life imprisonment”); R. v. E.H., 2005 BCCA 3, [2005] B.C.J. No. 4 (C.A.) at para. 20 (“…the well-established spectrum of culpability in manslaughter cases ranging from ‘near accident’ to ‘near murder’”; R. v. Jones, [2005] EWCA Crim 3115 (“manslaughter cases vary greatly from one end of the scale to another”); D.P.P. v. Kelly, [2004] IECCA 14 at 14 (“The very wide range of facts which a manslaughter case may feature make it difficult to establish any very precise range of sentencing”); Attorney General’s Reference No. 33 of 96 (Latham), [1996] EWCA Crim 1308 at 7 (manslaughter “covers a wide field”).

[12] At para. 6 of the Clemons decision, the court observed that:

It has often been stated by sentencing courts and by appellate tribunals that the imposition of the correct sentence in a case of manslaughter is one of the most difficult tasks that a court faces. There is a reduced blameworthiness to be attributed to an offender because of a lack of intent or because of provocation, but the result of the offender's actions still culminate in a death in circumstances that absent that lack of intent or because that provocation would otherwise result in murder.

[13] An appropriate sentence for manslaughter “must reflect our society’s concern for the sanctity of life” and ordinarily “a lengthy sentence must be imposed having in mind the gravity” of the crime: R. v. Head, [1985] O.J. No. 153 (C.A.) at 2. As a general rule, severe sentences are imposed proportionate to the gravity of the offence of manslaughter: R. v. Turcotte (2000), 2000 14721 (ON CA), 48 O.R. (3d) 97 (C.A.) at para. 19 (“…many, if not most, sentences for manslaughter, are in the penitentiary range”); D.P.P. v. Cooney, [2004] IECCA 19 at 10 (“Manslaughter is…an extremely serious offence, which in the majority of cases must result in a substantial custodial sentence”).

[14] Recognizing that there is no subcategory of “aggravated manslaughter” within the crime (R. v. Devaney, 2006 33666 (ON CA), [2006] O.J. No. 3996 (C.A.) at para. 33-4), the sentencing court is nevertheless obliged to scrutinize the case-specific circumstances of the offence and the offender: R. v. Simcoe, at para. 24 (“courts have viewed the offence of manslaughter in the context in which it occurred, including the relationship between the victim and the accused, together with the personal characteristics of the accused, in order to determine the appropriate sentence”); R. v. Cleyndert, 2006 33851 (ON CA), [2006] O.J. No. 4038 (C.A.) at para. 13 (“each case must be decided on its own facts”); R. v. Dasilva, at 2 (in manslaughter cases, the fit disposition “[v]ery much depends upon the circumstances of the offence, and, of course, the circumstances of the offender”); Attorney General’s References (Nos 19, 20 and 21 of 2001), [2001] EWCA Crim 1432 at 7 (in “any case of manslaughter the court inevitably looks at a number of factors to determine the appropriate sentence” including “the context in which the death was caused”).

Analysis

[42] I begin by addressing the family and friends of Mr. Rupie Budhu. You have suffered a great loss due to a criminal act. No sentence I impose can restore Mr. Budhu to you. I also expect that no sentence will seem appropriate or proportionate to the loss you feel every day.

[43] My responsibility is to impose a fit sentence having regard to all of the circumstances of this case. We all understand the unfortunate reality that people are killed every day in automobile accidents in which chance plays a large role in a collision occurring. In some cases there is simply no real fault on either driver. A car slides into the wrong lane at precisely the moment a car is approaching.

[44] The death of Mr. Budhu was not an accident. It was, however, a case in which chance played a large role. Mr. Torrezao was at fault but a fit sentence must recognize all of the circumstances, the extent of his blameworthiness including the role that chance played in the tragic death of Mr. Budhu.

[45] Mr. Torrezao knew that Mr. Budhu, according to the peace bond, was prohibited from coming to 60 yet he was there. I am certain that it never occurred to Mr. Torrezao that Mr. Budhu might be there by virtue of multiple mistakes, namely the wrong address given to the taxi driver, and Mr. Budhu’s inability to recognize that he was at the wrong house. I think that any reasonable person in the position of Mr. Torrezao would have believed that, if Mr. Budhu was prepared to violate a court order and come to 66 after midnight, he must be there to cause harm. I find that this was what Mr. Torrezao believed.

[46] I further find, given the history of prior incidents, Mr. Torrezao believed that Mr. Budhu was probably accompanied by others who also intended to cause harm. As you can see on the video when Mr. Torrezao, followed by other family members, comes out of the house to confront Mr. Budhu they appear to be looking around anxiously to see who else is there. Mr. Budhu knew that Mr. Torrezao and two young men lived in the Torrezao residence. If he was coming there to do harm it would make no sense that he would come alone. Ms. Persaud testified, and I accept, that when she saw Mr. Budhu at the front door she said, “My God – it’s a set-up” meaning she thought there was a group of men outside. In simple terms, Mr. Torrezao believed that his family and his house were probably under attack.

[47] The jury concluded that Mr. Torrezao did not act in lawful self-defence. I am bound by that decision. I also agree with it.

[48] With respect to the first element of self-defence, I am satisfied that Mr. Torrezao had a reasonable belief that force was being used or threatened against him. As I said, Mr. Torrezao reasonably believed that Mr. Budhu was there to do harm to him or his family.

[49] With respect to the second element of self-defence, I am satisfied that Mr. Torrezao acted for the purpose of protecting himself and his family from the threatened force.

[50] In my opinion self-defence fails in this case on the third element of self-defence because what Mr. Torrezao did was not reasonable in the circumstances as Mr. Torrezao knew or honestly believed them to be. While Mr. Torrezao had a concern others might be present, the only person he saw was Mr. Budhu. There was no sign that he was armed with a weapon. In the circumstances obtaining a lethal weapon, and using it to inflict a wound, was not a proportionate response to the threat posed by Mr. Budhu.

[51] In a span of less than 4 minutes, Mr. Torrezao went from being a law abiding citizen asleep in his bed (accused by some in his family of being too much of a pacifist) to committing manslaughter.

[52] One can never find a precedent case similar in all respects. R. v. Ibrahim, 2016 ONSC 1538, [2016] OJ No. 1134 bears some similarity to this case. In that case a 47 year old taxi driver, with no criminal record and a positive pre-sentence report, was convicted of manslaughter in the death of a skateboarder. There had been an interaction leading the skateboarder to yell and slap the taxi with his hand. Following this the taxi driver turned his vehicle with the intention of striking the skateboarder but without the intent to kill him or cause him serious bodily harm. Clark J. concluded that a four year sentence was appropriate.

[53] As in the case at bar, Ibrahim went from a law abiding citizen to an offender in the space of a few minutes because he acted impulsively. I would, however, regard Ibrahim as deserving of significantly greater punishment than Mr. Torrezao. Ibrahim was a professional driver encountering a skateboarder who was a stranger. Ibrahim was never in fear for his own safety. In contrast, Mr. Torrezao was asleep in his own home when the interaction began. He had every reason to be concerned for his personal safety, and the safety of his family, given the prior incidents which had occurred.

[54] R. v. Tabbara, [2009] O.J. No. 4397 (S.C.J.), also bears some similarity to our case. There had been a confrontation between two groups of men which involved aggressive actions and fake punches. The victim was walking away when the offender punched him on the back of the neck. The impact tore an artery causing death. As in this case, the offender made a hasty decision to commit an assault that he never contemplated would cause death. In Tabbara, there was no immediate provocation whereas in our case there was a long history of threatened or actual violence. On the other hand in Tabbara the offender was only 21, expressed great remorse, and apologized to the family of the victim.

[55] Blishen J. imposed a sentence of two years less a day and referred to the principle of restraint, codified in ss. 718(2)(d) and (e) of the Criminal Code, as follows:

In R. v. Priest, supra, Mr. Justice Rosenberg notes that even if a custodial sentence is appropriate, it is a well-established principle of sentencing that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused, rather than solely for the purpose of general deterrence.

[56] Turning to the factors discussed by the Supreme Court of Canada in Stone:

a) Mr. Torrezao chose a lethal weapon

b) relatively little force was used in the sense he jabbed the sword forward and then pulled it back

c) the 10 cm. wound was significant

d) there was no gratuitous violence or brutality

e) there was virtually no forethought or planning

f) the act was not complex

g) there was a history of prior threatening incidents directed at Mr. Torrezao and his family by Mr. Budhu and his associates

h) the act was over in a few seconds

i) the element of chance was overwhelming in terms of bringing the two men into contact that night and in terms of the sword causing death as opposed to a much less serious injury.

Thus, of the nine Stone factors, seven point to Mr. Torrezao’s moral culpability being at the low end of the scale.

[57] Turning to the general principles of sentencing:

a) Mr. Torrezao is unlikely to re-offend so specific deterrence is of minimal importance

b) I recognize that general deterrence and denunciation are important, however, I believe that a member of the community apprised of all of the facts of this case would be satisfied that the objectives of general deterrence and denunciation are properly served by the sentence I intend to impose.

[58] Taking into account all of the circumstances I have discussed, and all of the cases cited by counsel, I conclude that a sentence of 2 years is a fit sentence for the manslaughter committed by Mr. Torrezao. As discussed he is entitled to a credit of 17 months against that sentence. As such he shall be incarcerated for an additional period of 7 months.

[59] While I assess Mr. Torrezao as being at very low risk to re-offend, given the serious crime for which he has been convicted, I think the public interest will also be served by a two year probation order on the compulsory terms set out in s. 732.1(2) of the Criminal Code. In particular he shall not communicate directly or indirectly with any member of the Budhu family and shall not attend within 500 metres of any place that he knows a member of the Budhu family resides or is present at. Mr. Torrezao shall also report to a probation officer within 10 days of his release and thereafter as required by and in the manner directed by the probation officer.

Sproat J.

Released: April 11, 2018

COURT FILE NO.: CR 16 1454

DATE: 20180411

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MOSES TORREZAO

REASONS FOR SENTENCE

Sproat J.

Released: April 11, 2018