Court File No. CR-17-00004032-0000

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

NICOLA CAPPARELLI

R E A S O N S F O R S E N T E N C E

BEFORE THE HONOURABLE JUSTICE J. SPEYER

on, December 6, 2018, at NEWMARKET, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED

FROM PUBLICATION PURSUANT TO SECTION 539 OF THE CRIMINAL CODE

AS ORDERED BY MISENER J ON DECEMBER 11, 2017

APPEARANCES:

L. McCallum Counsel for the Crown

L. Jorgensen Counsel for Nicola Capparelli

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO

SECTION 539 OF THE CRIMINAL CODE AS ORDERED BY MISENER J

ON DECEMBER 11, 2017

Reasons for Sentence Page 1

Transcript Order Received..................December 12, 2018

Transcript Completed.......................January 10, 2019

Ordering Party Notified....................January 10, 2019

R. v. Nicola Capparelli Reasons for Sentence

• Speyer J.

THURSDAY, DECEMBER 6, 2018

R E A S O N S F O R S E N T E N C E

SPEYER J. (Orally):

Nicola Capparelli is before me today to be sentenced. He pled guilty to a charge of aggravated assault on November 29th, 2018. The guilty plea acknowledges his responsibility for stabbing his mother, Filomena Capparelli, numerous times with a large kitchen knife on May 20th, 2017.

On Saturday, May 20th of 2017, Mr. Capparelli was in the process of moving out of his parents' home. He had lived there for several months. In the months before the events that bring us here today Mr. Capparelli and his mother argued over living arrangements and money that Mr.Capparelli owed to her. She told him that he would have to move out. He moved into a hotel with his girlfriend.

In early May, Mr. Capparelli had a significant argument with his mother. After this, Mrs. Capparelli was fearful of her son and did not want to be alone with him. On the day that he was to move his things out of the house she asked an 86 year old friend to be with her when her son came for his things and she did not permit her son to come into the house.

On the morning of May 20th, 2017, two male friends of the family met Mr. Capparelli and his girlfriend to help them with the move. They brought a U-Haul vehicle to Mrs. Capparelli's house to collect Mr. Capparelli's belongings. The move proceeded uneventfully at first. Then Mr. Capparelli asked to enter the home to use the washroom. His mother allowed him to do that. He went upstairs to the washroom, where he remained for about 20 to 30 minutes, and then went to the basement to gather some personal items. During this time his mother remained in the living room sitting on the sofa with her friend beside her.

Mr. Capparelli then went to the kitchen. All of a sudden, without provocation, Mr. Capparelli ran at his mother. He had a large knife in his hand. He grabbed her, got on top of her, straddled her and started stabbing her with the knife. Mrs. Capparelli's screams caused the three men who were present to react immediately and forcefully pull Mr. Capparelli off of his mother. They wrestled him to the ground and held him there until police arrived and took control of him. As they subdued Mr. Capparelli, they heard him start counting backwards from 99 and say that he saw the devil, or that she is the devil.

Mrs. Capparelli was stabbed in the face, arm, under her left breast and on the right side of her chest. She was transported by ambulance to hospital and treated for her injuries. She suffered a wound to her right chest, less than one inch deep, that was closed with five sutures. The two centimetre laceration to her right arm was closed with two sutures. A 'U' shaped laceration on her left cheek was anesthetized and stitched with six sutures. She also sustained a cut to her hand and two lacerations on her left breast that were treated without stitches. Crown counsel has told me, on behalf of Mrs. Capparelli, about the impact that this offence has had on her. Tragically, she feels that she has lost a son. Mr. Capparelli is her only child. She is uncertain whether she can ever have a relationship with him in the future. She cannot envision a healthy relationship with him.

The scar on Mrs. Capparelli's face is the most significant injury to her. It causes her to constantly remember what happened. She is afraid for herself and for the community. Her hopes for her son, that he may have a healthy relationship with a woman and possibly a child are gone. While her physical injuries have healed, the emotional and psychological effects of what happened will endure forever.

Nicola Capparelli is now 40 years old. Notably, at the time he stabbed his mother he was on parole. He was serving a life sentence for second degree murder. He pled guilty and was sentenced to life imprisonment, with no eligibility for parole for 14 years, on September 24th, 2001.

The circumstances of the murder are important. When Mr. Capparelli was 21 years old he was involved in a serious relationship with a 22 year old woman. He bought her a diamond ring that she wore. Concerned about his jealousy and possessiveness, the young woman decided to end the relationship. The night that Mr. Caparrelli killed her, they met and argued over coffee.

They left in his vehicle. Within hours she was dead after Mr. Capparelli manually strangled her and stabbed her with a large knife that he left imbedded in her chest. He approached a police officer and said that he had just killed his girlfriend.

When he served his sentence, Mr. Capparelli was a model inmate. He participated in rehabilitative programs and availed himself of psychological services. By all accounts he was remorseful, accepted responsibility for his actions and had good insight into his mental health challenges. Mr. Capparelli was released on day parole on July 19th, 2012 and he was granted full parole on January 26, 2015.

Mr. Capparelli has a diagnosed mental illness about which I will have more to say when Ireview the mitigating factors in this case.

The Crown argues that a sentence of ten years imprisonment is warranted in this case. The Crown also seeks a DNA order, as aggravated assault is a primary designated offence, and a weapons prohibition order for life.

The defence argues that an appropriate sentence in this case is a sentence of four years imprisonment.

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. To that end, sanctions for criminal behaviour can denounce criminal conduct, deter it, separate the offender from society, where necessary, foster rehabilitation and promote a sense of responsibility in offenders. An overarching principle of sentencing commands that the sentence imposed be proportionate to the seriousness of the offence and the degree of responsibility or blameworthiness of the

offender. Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and 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.

Section 718.1 provides that the fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.

The offence of aggravated assault captures a broad range of conduct and moral culpability.

As a result, the offence has a very broad range of sentence. Ranges describe the parameters within which most sentences for similar offences committed by similar offenders will fall, but of course, every case is unique. Sentencing is a highly fact and context specific exercise.

The previously decided cases provide guidance, but they are not determinative of the result in

this case. I have carefully reviewed the case law provided by counsel. They provided a number of cases with somewhat similar facts. Both counsel referred me to the decision of Justice Code in R. v. Tourville, 2011 ONSC 1677, a case30in which the victim suffered a number of stab wounds in the course of a fight. In Tourville, Justice Code described cases where four to six years imprisonment had been imposed as the high end of the range of aggravated assault sentences and noted that those cases generally involve recidivists with serious criminal records, or they involve unprovoked or premeditated assaults with no suggestion of any elements of consent or self defence.

I have also been referred to the case of R. v.Haly, a decision of Justice MacDonnell, where a sentence of four and a half years imprisonment was imposed in circumstances where a 28 year old offender had some mental health issues and stabbed a stranger without provocation, inflicting multiple lacerations that required stitches. Mr. Haly had no criminal record.

While I have carefully reviewed the cases provided by counsel and they provide helpful discussions of the principles that apply to this sentencing, the results in those cases do not provide me with clear guidance as to what the result should be in this case. That is because in none of those cases was the offender on parole for second degree murder when he or she committed an aggravated assault. In none of those cases was the sentence imposed necessarily concurrent to a sentence that the offender was already serving. That remarkable feature of this case is, fortunately, an exceptional circumstance. I will discuss presently the significance of that exceptional circumstance.

The aggravating factors in this case I find to be as follows:

the victim was elderly, vulnerable and defenseless; the victim was Mr. Capparelli's mother, who provided him with a place to live after his release from the penitentiary;

Mrs. Capparelli was attacked in her own home;

o Mrs. Capparelli has been significantly affected by the offence. While her physical injuries have healed, she has suffered, in effect, the loss of her only child and her emotional and psychological injuries, I am sure, will torment her always.

o The attack was violent and brutal. While the injuries sustained by Mrs. Capparelli did not necessitate an admission to hospital, she required numerous stitches to close the wounds inflicted by Mr. Capparelli, including a significant wound to her face;

o The nature and number of injuries and the nature of the knife used prove that Mr. Capparelli intended to injure Mrs. Capparelli;

o The attack was persistent, ending only when others forcibly pulled Mr. Capparelli off of the victim;

o Mr. Capparelli used a weapon that he selected and then took with him to attack his mother. This was not an impulsive act where he seized an object that was at hand in response to some provocation;

o The criminal record of Mr. Capparelli for second degree murder, resulting from Mr. Capparelli stabbing his girlfriend to death, is a serious aggravating factor; and Mr. Capparelli was on parole and serving his life sentence for second degree murder when he stabbed his mother.

Counsel for Mr. Capparelli has argued that in some of the cases referred to the offenders had criminal records, including records that demonstrated a propensity for violence. That is true, but in my view such antecedents did not give rise to the same concerns as I have in this case.

Murder is the most serious offence known to the criminal law. The taking of a life is different from any other offence. Mr. Capparelli was convicted of intentionally killing another person. He was serving a life sentence when he attacked his mother. He was at large in the community by virtue of the privilege of being on parole. This is an exceptionally aggravating feature of this case. Finally, having caused the death of another person by stabbing, Mr.Capparelli was well aware, when he chose to attack his mother, of what the consequences could be.

The mitigating factors in this case I find to be the following:

o Mr. Capparelli has pleaded guilty. That acknowledgement of responsibility is the first step towards rehabilitation. It also saved the victim of the offence and others from the need to testify at trial. I observe that the plea was entered after a preliminary inquiry where the victim did testify and a year and a half after the offence in circumstances where the Crown's case against Mr. Capparelli was overwhelming, save for the issue of his criminal responsibility;

o Mr. Capparelli has demonstrated that he is able, when he is in custody, to apply himself to rehabilitative programs and to avail himself of resources that address his mental health issues; and,

o Mr. Capparelli has a diagnosed mental illness, he suffers from schizophrenia. Dr. Pearce has provided an opinion that the defence of not criminally responsible could not be supported in this case. He notes that Mr. Capparelli also suffers from a personality disorder with antisocial traits. He reports that Mr. Capparelli's self-report and witness statements are not consistent with psychotic decompensation or exacerbation of his schizophrenia and that he was able to appreciate the nature and quality of his acts and to know they were wrong. Nevertheless, it is a fact that upon his arrest immediately after the offence, Mr. Capparelli was committed to a hospital pursuant to mental health legislation to address his state and that he remained in hospital for about a week. While he is

o criminally responsible for his actions, it appears that his mental health was, to some extent, compromised and his moral culpability was, as a result, somewhat reduced.

Defence counsel argues that the fact that Mrs. Capparelli's injuries were not life threatening and did not require serious medical intervention has some mitigating effect. I do not see this as mitigating, but do consider it to reflect the absence of an aggravating fact. The sentence I impose must express society's revulsion for the violence inflicted by Mr. Capparelli on an elderly vulnerable victim. Given that he was on parole for second degree murder by stabbing when he committed aggravated assault by stabbing, protection of the public must be the paramount concern in this case. The Criminal Code recognizes that separation of an offender from society, when that is necessary for the protection of the public, is a proper goal of the sentencing process. Specific and general deterrence must also be considered. Specific deterrence is likely of limited application as Mr. Capparelli, having been sentenced to life imprisonment for stabbing a young woman, causing her death, if that sentence did not deter him from ever behaving in a like fashion again, I do not know what will.

General deterrence is important. Those who would inflict injuries with knives, particularly in anger and without provocation, must know that such conduct will result in a significant sentence.

Rehabilitation is a secondary concern in this case because the offence occurred while Mr. Capparelli was on parole and subject to the rehabilitative supports provided to him as a result. Needless to say, those rehabilitative opportunities did not enable Mr. Capparelli to refrain from lashing out violently and dangerously. Moreover, although Mr. Capparelli did avail himself of all rehabilitative resources that were provided to him in the penitentiary and while he was on parole, it is evident that his considerable efforts and good intentions did not prevent him from once again lashing out in anger with a knife against a woman he perceived as having wronged him.

Because Mr. Capparelli is serving a life sentence he has not spent any time in presentence custody attributable to the offence for which I am sentencing him. His parole was suspended and revoked after he was arrested, the day he attacked his mother, and so he has beenserving his life sentence while awaiting the outcome of this case.

Mr. Capparelli did spend his time awaiting the resolution of this matter in a provincial remand facility and so did not have available to him the stability and programming available in a penitentiary. He also did not seek transfer to a penitentiary pending the disposition of this case. I have not been advised that his time in

the provincial remand facility was spent incircumstances of unusual hardship. All in all, the presentence custody will have no impact on the sentence that I will impose.

Mr. Capparelli, could you please stand up. I sentence you to a term of imprisonment of eight years concurrent to the sentence that you are presently serving. You may sit down.

Mr. Capparelli is also ordered to provide a DNA sample as this is a primary compulsory designated offence. In addition, he is prohibited from possessing firearms and other weapons that will be specified in the order that will be provided to him, pursuant to section 109 of the Criminal Code, for life. Finally, Mr. Capparelli is ordered to pay the mandatory victim fine surcharge of $200 payable within six months of his release from custody.

Mr. Capparelli, you may not feel this way today,but you actually are fortunate. Your mother could have died. She did not and as a result of that there is hope, hope that you will earn a second chance at parole and that you will be able to, at some point in time, continue your life in the community as a contributing member of that community. I expect that that will not be for some time, but that will be up to the National Parole Board and is nothing that is in my control, but I hope for you that you will be able to address whatever demons have caused you

to act in the way that you have and that you will have an opportunity at some point in the future to return to reside in the community in a safe way to yourself and to everybody else.

Thank you, sir.

Is there anything else that counsel need me to address?

MS. McCALLUM: There is an outstanding count that I would ask be withdrawn please.

THE COURT: Yes. Just give me a moment while I endorse the indictment.

MS. McCALLUM: Thank you, Your Honour.

THE COURT: I have included in the endorsement the withdrawal by the Crown of count one. MS. McCALLUM: Thank you.

Certification

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))Evidence Act

I, Carol P. Smith, certify that this document is a true and accurate transcript of the recording of Her Majesty the Queen v. Nicola Capparelli, in the Superior Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, L3Y 6B1 taken from Recording Number 4911_401_20181206_091300_10_SPEYERJO.dcr, which has been certified in Form 1.

January 10, 2019

(Date)(Signature)

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Carol P. Smith, and accordingly, are in direct violation of the Ontario Regulation 94/14, Courts of Justice Act, January 1, l990.