Court File and Parties
COURT FILE NO.: 17-40000460-0000 DATE: 20180905 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – Domenico Scopelliti Defendant
Counsel: Anna Stanford and Iain Sunderland for the Crown Brian Ross and Morgan Ross for the Defendant
HEARD: Wednesday, June 20, 2018
McWatt, J.
[1] Domenico Scopelliti was found guilty of manslaughter. On January 29, 2016, he shot his father-in-law, Rocco Zito, in their home in Toronto.
[2] Originally charged with First Degree Murder, the jury could not be satisfied either that the defendant had the state of mind required for murder or that he had not been provoked. I find that they were not satisfied beyond a reasonable doubt that Mr. Scopelliti was not provoked by Rocco Zito during a verbal argument.
[3] The Crown asks that Mr. Scopelliti be sentence to 11 years in jail. The defence asks for a sentence of 7 years. The range of sentences for this type of case is one of 8 to 12 years in jail.
The Facts
[4] Rocco Zito was a physically frail, dying man. He was 87 years old when the defendant shot him in the home they shared with their families.
[5] Mr. Zito and his wife had raised 5 daughters. Two of them lived in the home along with him and his wife. She suffered from dementia. One of the daughters, Laura Scopelliti, was married to the defendant. They had 4 children and lived in the basement. Neither worked full time, but were taken care of financially by the deceased. Mr. Scopelliti worked for and as a result of the influence of Mr. Zito, who was a “loan shark” – a fact not in dispute in the trial. Also not in dispute was the fact that Mr. Zito was once a leading figure in organized crime.
[6] Over the decades of residing together from the early nineties, the two men got on with business and family life. They were both “masters” of their families and respected that aspect of each other’s life in the home. On occasion, however, they disagreed over financial matters. On one such occasion in 2011, there was a physical altercation. Neither man touched the other, but Mr. Zito grabbed a knife from the dining table the family was seated at and the defendant threw a wine bottle in the deceased’s direction.
[7] Along with being financially dependent on Mr. Zito, the defendant expected that his wife, Laura, would inherit half of Mr. Zito’s assets, including the house they resided in and a $1 million investment fund. The other half would go to Laura’s emotionally disabled sister who lived in the house with Mr. and Mrs. Zito.
[8] Just prior to the shooting, however, Mr. Zito expressed that, rather than leave all of his assets to just the two daughters who resided with him, he wanted to divide everything, other than the home they all lived in, amongst all 5 daughters.
[9] Mr. Scopelliti testified that, rather than being upset about the proposed change in the will, he was upset that the deceased had failed to give a portion of a $50,000 profit, from a loan they had made, to his children for their education. Mr. Scopelliti denied that he was angry that his father-in-law was planning on changing his will. I do not believe him and find beyond a reasonable doubt that the change of the will was the issue between the two men and the basis, along with a longstanding resentment held by the defendant towards the deceased, for the argument that led to the shooting. There was ample evidence that the proposed change to the will was the basis for the altercation and the defendant’s consequent shooting of the deceased. Most notable was the fact that the issue about the will came up between the men just before the shooting. The alleged non-sharing of the $50,000 profit from the loan had happened years before. In fact, it may have been a combination of these and other financial disappointments the defendant experienced due to his dependence on Mr. Zito that led to the killing.
[10] As a result of the falling out, the two did not speak for days and Mr. Scopelliti forbade his wife from leaving the basement to go upstairs to assist her ailing parents and her sister. Besides her role as a mother and homemaker, Laura’s job had been to take care of all three of them for many years. In cutting her off from helping her parents, the defendant explained to his wife that he was teaching Mr. Zito how dependent he was on him and her and that Mr. Zito was underestimating the value of their assistance (by changing his will). Before the shooting, Mr. Scopelliti had been directing his wife to give him Mr. Zito’s financial documents related to the investment fund and he knew its exact value.
[11] On the afternoon of the shooting, Mr. Zito attempted to talk to his son-in-law about their disagreement from the top of the stairs to the basement. The defendant, his wife, Laura, and the couple’s two sons were in the basement at the time. Mr. Zito’s wife, two of his daughters and his two granddaughters were upstairs on the main floor.
[12] The evidence which leads me to conclude that the finding by the jury that the killing was manslaughter based on provocation as opposed to the lack of intent to kill is as follows.
[13] First, I told the jury that they had to find beyond a reasonable doubt “that Mr. Scopelliti either meant to kill Rocco Zito or that Mr. Scopelliti meant to cause Rocco Zito bodily harm that Mr. Scopelliti knew was so serious and dangerous that it would likely kill Rocco Zito and proceeded despite his knowledge that Rocco Zito would likely die as a result of that bodily harm”….and the Crown only had to prove one of the two and not both.
[14] I then told the jury that they might conclude, on the basis of common sense, that when Mr. Scopelliti “fired one bullet through the door towards Mr. Zito, then proceeded up the stairs, told one of the deceased’s daughters, Angela Buda, to “Move, Move” and fired 3 more bullets into the deceased’s chest, that he meant to kill Rocco Zito, or meant to cause Rocco Zito bodily harm that Mr. Scopelliti knew was likely to kill Rocco Zito, and was reckless whether Rocco Zito died or not. And had the state of mind for murder.” As I have already set out, I find that the jury did not find this killing was manslaughter on the basis of lack of intent to kill. The evidence does not support such a finding.
[15] The deceased had been encouraging his son-in-law to come up and talk so they could work out their differences. The two began to argue. The defendant had already retrieved a loaded handgun with a silencer attached to it from an area in the basement apartment before he was verbally provoked by the deceased. This finding of fact is supported by Laura Scopelliti’s evidence, which I accept on this point, and the fact that if the jury accepted that the defendant was insulted first and then went for the firearm, they could not have found that the defendant was provoked and only guilty of manslaughter and not murder.
[16] While in possession of the loaded firearm, Mr. Scopelliti told Mr. Zito that he wasn’t interested in talking. Mr. Zito continued to ask the defendant to come up and talk. Mr. Scopelliti called Mr. Zito a “rat” and a “snitch” from the bottom of the stairs. Mr. Zito got angry and told the defendant that he would amount to nothing and “would die before him” and that he would “kill him”.
[17] The defendant ran up the stairs a few steps, fired a shot through the door and then proceeded onto the main floor of the house. There, he found the deceased with his daughter, Angela. Angela was in front of her father. The defendant told her to “move, move”. She did, and Mr. Scopelliti fired three shots into the torso of Rocco Zito and killed him.
[18] It is clear from the verdict that the deceased did not have a firearm at the time he was killed.
The Background of the Defendant
[19] Domenico Scopelliti is 54 years old. He was married to Laura Scopelliti for over 25 years. They divorced after the defendant was charged with the murder. He has four children – two daughters and two sons. The youngest, a boy, is in his teens. Due to the fact that the defendant did not have regular employment, he has been involved with the children’s upbringing on a daily basis throughout their lives. The two oldest, girls, are in post-secondary school. The children continue to live with Laura.
[20] Mr. Scopelliti has a university education. He worked for the WSIB (Parks and Recreation) up to 1992 when he married Laura, but had few legitimate jobs thereafter. He assisted the deceased on occasion colleting debts from the loan sharking business that Rocco Zito ran. He worked in businesses connected to his family, but made no significant income.
[21] Mr. Scopelliti has no criminal record.
[22] Character letters filed on his behalf set out the opinions of Mr. Scopelliti’s relatives, friends and associates. Generally, the letters cast him as an involved father, a kind and gentle man and a man whose character does not fit the crime he has committed.
[23] Both Mr. Scopelliti and Laura testified about the defendant’s domestic abuse of her on a couple of occasions. Laura Scopelliti testified that the defendant could be controlling.
[24] The defendant has been in custody since the date of the offence.
Sentencing Principles and the Range of Sentences
[25] Section 718 of the Criminal Code sets out that the fundamental purpose of sentencing is to “contribute… 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; (d) to assist in rehabilitating offenders; …and (f) to promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and to the community.”
[26] The Supreme Court of Canada, in R. v. Creighton, [1993] S.C.J. No. 91 (S.C.C.), at paragraph 86, said the following about the broad range of sentences imposed in manslaughter cases.
…Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender….
[27] This court is entitled to give different weight to the various objectives of sentencing depending on the facts of the case.
[28] Counsel agree that the range of sentencing in this case is one of 8 to 12 years custody. There is no case before this court that supports a sentence of 7 years in custody. Defence counsel admits that the facts of this case are different from any of the cases he has put before me. However, he stresses the defendant’s, otherwise, good character and submits that the principle of rehabilitation should be considered before those of deterrence and denunciation.
[29] In the case of R. v. Clarke, [2003] O.J. No. 1966 (Ont. C.A.), the Court found that, in light of the aggravating factors, which are similar to those in this case, the proper range for the offence was 8 to 12 years in jail.
[30] The victim was a friend of the appellant. He was frail and suffered from numerous health problems. The appellant stabbed him, brutally, seven times, in his a rooming house where both men lived. The appellant admitted to police that he had caused the victim’s death.
[31] The trial judge found that the jury’s verdict was based either on a doubt about provocation or the “rolled up” defence of lack of intent caused by some alcohol consumption and some provocation.
[32] The Court substituted a 14-year sentence imposed by the trial judge with one of 9 years in jail after crediting the appellant’s pretrial custody of eighteen months and the mitigation due to the provocation factor. The sentence, then, was one of 10 and one half years.
[33] In the cases of R. v. Tucker, 2010 ONSC 6700 and R. v. Pitter, this court set out what is an accepted principle in sentencing established by our Court of Appeal. The use of a firearm in the commission of an offence is a serious aggravating factor and, therefore, the sentencing principles of deterrence and denunciation are paramount considerations in such cases.
[34] In the Tucker case, the defendant was charged with first degree murder in relation to the shooting death of the victim. With the consent of the Crown, the accused plead guilty to the lesser and included offence of manslaughter. One of the aggravating factors in determining the 9 year sentence imposed by this court was the fact that a firearm was used in the commission of the offence. At paragraph 16, McMahon J. referred to repeated reminders from our Court of Appeal that the use of a firearm is a “serious aggravating factor and general deterrence and denunciation must be paramount”. Mr. Tucker took a loaded handgun to an altercation in a public place.
[35] In R. v. Pitter, the defendant was found not guilty of murder by a jury, but guilty of manslaughter. Mr. Pitter took a loaded handgun to the parking lot of a tavern in London. There, he shot two men. One died. The defendant was 24 years old and had a record, but not for violent offences. He was intoxicated to some degree and the trial judge found that the jury had concluded that Mr. Pitter was either provoked or that the combination of provocation and intoxication were sufficient to reduce murder to manslaughter.
[36] The trial judge found, at paragraph 14, that the sentencing principles of general deterrence and denunciation should be considered paramount to any other principles he considered because of the use of a firearm in the offences. He sentenced the defendant to 11 years in the penitentiary.
[37] In R. v. Klimovich, 2013 ONSC 2888, the defendant was found not guilty of second degree murder, but guilty of manslaughter. He was found to have stabbed and slashed his wife forty times while she lay in her bed. Mr. Klimovich had no prior record for violence, he called 911 after the killing and took responsibility for the victim’s death. At the time of the offence, he had been suffering from depression. The killing took place after a heated argument between the couple, in which the victim made provocative utterances. The defendant was sentenced to 11 years in custody.
[38] In the case of R. v. Gill, 2011 ONSC 2598, the jury found the offender guilty of manslaughter instead of second degree murder on the basis of provocation. The defendant and deceased were guests at an engagement party in a home. The defendant, who had a record for possessing firearms and trafficking narcotics, testified that it was his custom to carry a loaded 9 mm handgun when he was buying or selling drugs. He had the gun at the party as, afterwards, he was going to purchase some marihuana. The jury accepted that the victim approached the offender after approaching others at the party to question whether they had handguns. He either struck the defendant in the head with a bottle or threw a bottle at him. A scuffle ensued and the offender fired 6 shots. Five of them hit the victim.
[39] In passing a sentence of 10 years for the offence, the trial judge found that the possession and use – and the subsequent destruction of the firearm - were aggravating factors which supported the disposition. The defendant was in possession of a loaded handgun at a private residence in the community with persons attending a party. Denunciation and general deterrence were held to be the predominant sentencing principles for that manslaughter (para. 65).
Analysis
[40] As I have said, rather than agreeing with the Crown that the most important sentencing principles in this case are that of denunciation and general deterrence, the defence suggests that, due to Mr. Scopelliti’s background and personal circumstances, rehabilitation is, if not the most important sentencing principle, a sentencing principle which should be weightier than denunciation and deterrence because the protection of the public is not an issue in this case because the “killing” of Rocco Zito “does not define the defendant”.
[41] I completely disagree. Although I will not ignore the principle of rehabilitation in this case, the evidence in this trial would have me conclude beyond a reasonable doubt that this was a “Mafia”, organized crime, household that the defendant lived in. He survived off the proceeds derived from Rocco Zito’s loan sharking and other activities. Mr. Scopelliti was complicit in the way that Rocco Zito earned income. He was part of it. He is not being sentenced for any of that complicity. However, the defence attempt to paint Domenico Scopelliti as some sort of person who should be exempt from the court’s consideration of the principles of general deterrence and denunciation, as the predominant principles in this killing, cannot be taken seriously. He was preparing illegal firearm silencers for sale to make a profit and hid a fully loaded illegal handgun in his home, which he had at his immediate disposal to use to kill his father-in-law. He admitted, during the trial, that he participated in other illegal activity that he was never charged for. He is not being sentenced for that activity either, but all that makes, incongruous, the defence submission that the defendant and the offence should not be considered, first, on the basis of the principles of denunciation and deterrence.
[42] They must be the overriding considerations.
Aggravating Factors
[43] I have considered the following aggravating factors in imposing the appropriate sentence in this case:
i. The defendant used a handgun which he had hidden in the residence he shared with the deceased. It was loaded and had a homemade silencer on the end. He fired 4 shots – one into a door behind which he believed the victim was standing and 3 more directly into the victim; ii. The victim was unarmed. He was a frail old man who depended on Mr. Scopelliti and his wife to care for him, his wife and their disabled daughter. The defendant cut off that care in the week he shot Rocco Zito; iii. The defendant destroyed the firearm he used in the killing, which was evidence in the murder; iv. The jury accepted that the defendant was provoked, but not that he lacked the intent to kill the deceased. The provocation in this case was minimal. The two men had insulted each other before and almost come to blows in 2011. The shooting was brought on by a threat to kill the defendant by Mr. Zito standing at the top of the stairs in the house. He did not possess any weapon. He was in ill health. Mr. Scopelliti was at the bottom of the stairs. The defendant had contributed to the verbal argument which brought on the deceased’s threat when he called the deceased a “rat” or “snitch”. I accept the Crown’s submission that both the defendant and the deceased “gave as good as they got” in this verbal exchange and that Mr. Scopelliti had other options; v. The shooting occurred in the home where both men resided. On that day, three of the victim’s daughters were present. Each saw the shooting or parts of it. The defendant’s four children were also all at home. His two daughters were present at the shooting and tried to save their grandfather after he was shot. They all had to testify about the shooting. Mr. Scopelliti’s youngest son, Rocco, was 11 years old at the time and was in close proximity to the shooting. He has not returned to school since the incident.
Mitigating Aspects
[44] The mitigating aspects of the case are:
i. The defendant has no criminal record and the offence is out of character in terms of his history; ii. He has expressed remorse for the shooting. The Crown candidly admitted that the defendant would have entered a guilty plea to manslaughter before the trial if the Crown had consented; iii. He has significant family and community support; iv. He was a good father and family man, in spite of being accused earlier in his marriage of abusing his wife, Laura; v. He turned himself into police the night of the shooting and has been a compliant inmate at the detention centre while awaiting trial; vi. Although listed in my consideration of aggravating features, Mr. Scopelliti was provoked by the deceased. That fact is a mitigating aspect of this case. There were guns belonging to the deceased and the defendant in the house and the two men had built up some animus over the years over various issues.
[45] In all of the circumstances of this case, especially with regard the defendant’s show of remorse, the appropriate sentence is one of 10 years in jail. The use of the firearm calls for a custodial period in the mid-range of what has been accepted as the appropriate range of sentence.
Pre-Trial Custody
[46] Mr. Scopelliti has been in custody since January 29, 2016, which is 31 months. He should be credited with 46.5 months if each day in custody is counted as 1.5 days already served.
[47] The parties agree that a further 5 months should be added to that period for lockdowns in the detention centre.
[48] The pre-trial custody, then, amounts to 51.5 months or 4 years and 3 and one half months of time already served.
Disposition
[49] Mr. Scopelliti shall serve 10 years in the penitentiary less 4 years and 3 and one half months. The remaining sentence to be served is 5 years and 8 and one half months in the penitentiary.
[50] There shall also be an Order that a sample of his DNA be taken and stored in the National DNA data bank. This is a primary designated offence pursuant to section 487.04 (a) of the Criminal Code.
[51] There shall be a section 109 Order pursuant to the Criminal Code prohibiting the defendant from possessing firearms and the other items listed in that section for life.
McWatt, J. Released: September 05, 2018.