Her Majesty the Queen v. Antonio Ricciardi

COURT FILE NO.: CR-15-00008724

DATE: 20191115

CORRIGENDA: 20200106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ANTONIO RICCIARDI

Defendant

Counsel: Joanne McIntyre and Michelle Rumble, for the Crown Jessica Sickinger and Jeffrey Goldglass, for the Defendant

HEARD: February 25, 26, 27, 28, 2019, September 16, October 15, and 21, 2019

PUBLICATION RESTRICTION NOTICE

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

REVISED REASONS FOR DECISION ON DANGEROUS OFFENDER/LONG-TERM OFFENDER HEARING AND REASONS FOR SENTENCE

The text of the original Reasons has been corrected with the text of the corrigendum

(released today’s date)

DI LUCA J.:

[1] On September 20, 2017, following a lengthy and complicated trial, I found Mr. Ricciardi guilty of a number of offences. The Crown then brought a dangerous/long-term offender application. That application was dismissed on October 15, 2019 with reasons to follow. I then heard sentencing submissions and received case law on the appropriate range of sentence.

[2] Mr. Ricciardi is now before me for the imposition of sentence. These are my reasons on the dangerous/long-term offender application and my Reasons for Sentence.

Overview of the Case

[3] As indicated in my Reasons for Judgment reported at 2017 ONSC 5562, I found Mr. Ricciardi guilty of the following offences:

Church Street North – the Catenaro Residence

Count 1 – Break and Enter of a Dwelling House, July 15, 2014

The Attack on Mrs. S.N.

Count 2 – Attempt Kidnapping – July 19, 2014

Count 3 – Robbery

Count 5 – Carry Concealed Weapon – July 23, 2014

Count 6 – Possession of Property Obtained by Crime Under $5,000

The Attack on Ms. C.V.

Count 7 – Assault with a Weapon – January 26, 2015

Count 8 – Having Face Masked with Intent to Commit Assault

Count 9 – Unlawful Confinement

Count 10 – Attempt Sexual Assault with a Weapon

The Attack on Mrs. G.E.

Count 11 – Break and Enter a Dwelling House – February 11, 2015

Count 12 – Assault

Count 13 – Having Face Masked with Intent to Commit Assault

Count 16 – Criminal Harassment

The Arrest

Count 17 – Carry Concealed Weapon – February 12, 2015

Count 18 – Attempt Obstruct Police

Count 19 – Fail to Comply Recognizance – No weapons condition

Count 20 – Fail to Comply Recognizance – Residence condition

[4] In terms of the facts of these offences, I will not repeat here the full factual findings I made in relation to each offence as set out in my Reasons for Judgment, but I provide the following summary for context.

[5] The central allegations in this case involve three apparently random attacks on women. The attacks can only be described as terrifying.

Attack on Mrs. S.N.

[6] On July 19, 2014, Mrs. S.N. went to the Hillcrest Mall to do some banking. As she returned to her car, she was attacked by Mr. Ricciardi who brandished a knife and was wearing gloves, a hat and scarf, even though it was July. He entered the driver’s seat of her car and she was forced into passenger seat. He then indicated that he wanted to take her somewhere and told her to keep quiet or else he would hurt her. He tried to force her into the footwell of the passenger side of the vehicle. She pleaded with Mr. Ricciardi and offered him money and jewellery. Eventually he permitted her to move to the back seat of the car and she managed to escape through the back door of the vehicle. When she exited the vehicle, she observed Mr. Ricciardi outside her vehicle holding the knife and her purse. While she was terrified, she managed to take a photograph of Mr. Ricciardi using her cell phone. She also managed to call 911.

[7] A few days later, on July 23, 2014, Mr. Ricciardi was spotted at Mrs. S.N.’s apartment building lobby. He was observed outside the building wearing the same clothing, including a hat and gloves. Mr. Ricciardi had Mrs. S.N.’s keys in his hands and he was observed entering her apartment building and going up and down the elevator.

[8] Police were called and Mr. Ricciardi was arrested. A search of Mr. Ricciardi incident to arrest revealed Mrs. S.N.’s apartment keys and a large knife with a 5 ½ inch serrated blade tucked under his clothing.

[9] A later search of Mr. Ricciardi’s residence revealed Mrs. S.N.’s purse and its contents. Her driver’s licence bearing her home address had been removed from the purse and was located in a desk.

Attack on Ms. C.V.

[10] On January 26, 2015, Ms. C.V. was working at a bridal store in Toronto. At around 2:00 or 3:00 p.m., Mr. Ricciardi entered the store wearing a knit balaclava that covered his face, neck and forehead. While it was cold outside, he did not remove the balaclava once he entered the store. He proceeded to engage Ms. C.V. in a discussion about “princess gowns”, ostensibly for his soon to be sister-in-law. He left the store after a few minutes.

[11] At approximately 5:45 p.m., Mr. Ricciardi returned to the store and asked to see some dresses at the back. Ms. C.V. began showing him some dresses and suggested that it might be best if the bride-to-be were to attend the store.

[12] Without warning, Mr. Ricciardi punched C.V. in the face with a closed fist. She lost her balance and fell to the floor on her back. Mr. Ricciardi crouched over her. He had a knife in his hand and he put it to her throat. He told her he would slit her throat and kill her unless she kept quiet. He ordered her to turn over. Before she could do so, the attack was interrupted by some passersby who entered the store. Mr. Ricciardi escaped into a nearby TTC station.

Attack on Mrs. G.E.

[13] On February 11, 2015, Mrs. G.E., a 70-year-old widow, was returning to her apartment after shopping at a nearby mall. When she entered the lobby to the apartment building, she noticed a man standing near her. That man was Mr. Ricciardi. He followed her into the elevator and selected a floor. Instead of getting off at that floor, he exited on her floor and followed her to her apartment door. Mrs. G.E. entered her apartment and heard him say “you forgot the keys in the door.” As she went to retrieve her keys, Mr. Ricciardi placed his hand on the keys. She tried to push the door closed but was unable to. Mr. Ricciardi entered her apartment, pushing her against the closet in the process. When she tried to scream, he put his hand over her mouth and again repeated “you forgot your keys in the door.” She managed to get him out of the apartment and then locked the door.

[14] On the following day, Mr. Ricciardi was spotted back at Mrs. G.E.’s building, which is near his mother’s apartment. He was observed to be on the second floor of the building looking at apartment numbers as he walked down the hall. When asked by a building manager if he needed assistance, Mr. Ricciardi indicated he needed to go to the third floor. Later that day, Mr. Ricciardi was arrested and during a search incident to arrest, police discovered that he was carrying a large knife strapped to his torso. A search warrant was then executed on his mother’s apartment, and inside Mr. Ricciardi’s bedroom police located sunglasses which he had been wearing earlier that day, together with handcuffs. As indicated in my Reasons for Judgment, I am satisfied that Mr. Ricciardi had the handcuffs on him when he returned to Mrs. G.E.’s apartment building on February 12, 2015.

The Break and Enter into the Catenaro Residence

[15] On July 15, 2014, Mr. and Mrs. Catenaro were gardening in their backyard. At a certain point, Mrs. Catenaro entered the residence and noted signs of a break in. Items of jewellery were missing, as was an AMEX Costco credit card bearing her photograph.

[16] On July 17, 2014, Mr. Ricciardi pawned a gold chain and locket belonging to Mrs. Catenaro. A photograph that was inside the locket was removed by Mr. Ricciardi and presumably thrown out or destroyed. On July 24, 2014, a search of Mr. Ricciardi’s residence revealed other items of jewellery belonging to Mrs. Catenaro, as well as the AMEX Costco credit card.

Other Offences

[17] Following his initial arrest, Mr. Ricciardi was granted bail with conditions including, inter alia, that he reside at his surety’s address and that he refrain from possessing weapons. Mr. Ricciardi violated these conditions by residing at his mother’s apartment instead of with his surety, and by having a knife in his possession when he was arrested. The knife strapped to his chest resulted in the further conviction for carrying a concealed weapon.

[18] Mr. Ricciardi was also convicted of attempting to obstruct police in relation to giving a false name when he was briefly detained and questioned in the stairwell of his apartment building just prior to his second arrest.

Victim Impact Statements

[19] The victims of the three attacks provided helpful and moving Victim Impact Statements. Given the nature of the attacks, it is hardly surprising that all three suffered and continue to suffer significant psychological and emotional trauma.

[20] Mrs. S.N. indicates that as a result of the attack she has suffered crippling anxiety and depression. She was hospitalized and continues to receive treatment. She is terrified and lives in fear of the attack. She describes how she used to be full of happiness but the attack has changed her. She no longer feels safe even when undertaking mundane activities like walking to her car.

[21] Ms. C.V. indicates that she suffered PTSD as a result of the attack. She had to quit her job at the bridal boutique, and subsequently quit other jobs in customer service as she could not cope with the stress of being in a physical workspace.

[22] Ms. C.V. returned to school but found that too emotionally distressing. She feared taking transit alone and was unable to complete her school work. She also feared having her back to a door, attending a public washroom and walking to a parking lot. Eventually, Ms. C.V. decided to leave Toronto and move back to Montreal in order to escape her feelings of distress. She also curtailed her music career out of fear of appearing in public and on social media. Her Victim Impact Statement contains the lyrics to a song she wrote a few weeks after the offence. The lyrics reveal a profound degree of suffering relating to the offence.

[23] Mrs. G.E. indicates that the offence has caused her to feel insecure when alone. She moved into the apartment where the attack took place after her husband passed. It was a location that permitted her to walk to local stores. As a result of the offence she has become more cautious of her surroundings. She fears for her security and has undertaken increased security measures, including installing an extra lock on her door. She no longer rides the elevator if there is only one person on it.

Mr. Ricciardi’s Personal Circumstances

[24] Mr. Ricciardi is currently 63 years of age. He is twice divorced with no dependants. He has a high school education and has taken college level courses, including two years of law and security administration at Humber College.

[25] At the time of the offences, he was living with his mother in Richmond Hill. He was not working and was receiving disability support. Prior to being on disability, Mr. Ricciardi worked primarily as a hairdresser. Over the years he both owned and managed hair salons for periods of time and he also freelanced.

[26] Mr. Ricciardi has a history of using and abusing alcohol and drugs, particularly cocaine and crack cocaine and more recently opiates. Mr. Ricciardi claims that at the time of these offences he was abusing drugs and alcohol and needed money to support his addictions.

[27] Mr. Ricciardi also has several medical issues including hypertension, anxiety, depression, diabetes, osteoarthritis and hearing loss. He has been treated for bladder cancer. There is also some evidence suggesting that he is exhibiting early signs of cognitive decline, though the evidence is not clear at this time.

[28] In terms of pre-sentence custody, Mr. Ricciardi has been in custody since his arrest on February 12, 2015. As of today’s date, that equals 1,736 days plus two days which he served pending his initial release on bail in July, 2014. At a ratio of 1.5 to 1, Mr. Ricciardi has served the equivalent of 2,607 days of pre-trial custody or 7 years, 1 month and 21 days. Records for the detention centre where Mr. Ricciardi has been held pending completion of this matter were filed at the sentencing hearing. These records reveal that Mr. Ricciardi was subject to institutional lockdowns of 6 hours or less on 230 occasions, and of more than 6 hours on 206 occasions. The total duration of the lockdowns over the 1,694 days covered by the report is 2,534 hours. Mr. Ricciardi was never tripled bunked. The institutional records reveal no requests for or participation in any programming offered to inmates. I have no evidence from Mr. Ricciardi describing any particular impacts the lockdowns caused on him.

[29] Mr. Ricciardi has a very dated and limited criminal record which includes an absolute discharge for possession of a prohibited weapon and fail to appear in 1977. It also includes a conviction for possession of a narcotic in 1994, which resulted in the imposition of a $250 fine and probation.

[30] When provided with an opportunity to address the court during sentence submissions, Mr. Ricciardi declined.

Evidence on the Dangerous Offender Application

[31] A number of volumes of material were filed during the hearing of the dangerous offender application. That material was supplemented by the expert testimony of a forensic psychiatrist, Dr. Scott Woodside. I also heard further viva voce evidence and received agreed facts from certain witnesses involved in corrections, including Karen Thomson, Sheldon Schwartz and Gilbert Legault.

[32] Dr. Woodside met with Mr. Ricciardi on five separate occasions, for a total of 14.25 hours. In preparation of his report, he relied on his meetings with Mr. Ricciardi as well as collateral information obtained from several sources. A number of exhibits from the trial were provided to Dr. Woodside, as were police interviews with a number of witnesses. Lastly, records relating to proven and alleged criminal offences and driving offences by Mr. Ricciardi were also provided to Dr. Woodside.

[33] Mr. Ricciardi was also seen by a psychologist, Dr. Abramowitz. Her report was included in the materials presented in court and was reviewed and relied upon by Dr. Woodside. In terms of the psychological testing, Dr. Abramowitz noted that Mr. Ricciardi endorsed a diffuse and pervasive pattern of somatic complaints and also reported numerous cognitive difficulties including memory problems, intellectual limitations and confusion. Testing suggested that Mr. Ricciardi has moderate impaired cognitive functioning and intellectual functioning below what was expected. That said, Dr. Abramowitz had concerns about the legitimacy of Mr. Ricciardi’s performance on the various tests. While testing done to assess his degree of effort and exaggeration did not invalidate his test scores, Dr. Abramowitz was of the opinion that his test scores should be viewed with caution. Ultimately, Dr. Abramowitz concluded that Mr. Ricciardi possessed a very concrete and inflexible cognitive style, though she could not offer a definitive opinion on the degree and extent of his cognitive impairments.

[34] In his report, Dr. Woodside conducted a detailed review and summary of the available file material and his interviews with Mr. Ricciardi. In terms of his diagnosis, Dr. Woodside opined that Mr. Ricciardi met the criteria for multiple severe substance abuse disorders relating to alcohol, cocaine and opiates. Dr. Woodside noted that there exists “good evidence” from both self-report and collateral of Mr. Ricciardi’s substantial difficulties with drugs and alcohol.

[35] Dr. Woodside further opined that while Mr. Ricciardi fell short of meeting the criteria for a diagnosis of Anti-Social Personality Disorder, he did meet the criteria for an “other specified personality disorder with anti-social traits.” Dr. Woodside noted that there was insufficient evidence of a conduct disorder prior to age 15, which is a requisite diagnostic criterion for an Anti-Social Personality Disorder. Mr. Ricciardi otherwise met the remaining diagnostic criteria.

[36] Clinical records from Mr. Ricciardi’s family doctor suggest that he may have been diagnosed with Bipolar Disorder and atypical psychosis consisting of auditory hallucinations at some point in the past. Dr. Woodside discounted both of these diagnoses. In his view, the symptomology was better explained by Mr. Ricciardi’s drug and alcohol use as well as the onset of deafness.

[37] Mr. Ricciardi underwent phallometric testing in an effort to assess his sexual preferences. The test results produced an invalid profile as Mr. Ricciardi’s highest responses were to neutral non-sexual scenarios, suggesting he was attempting to invalidate the results. None of the collateral sources provided any support for a finding of sexual paraphilia. Ultimately, Dr. Woodside could not rule out the possibility that Mr. Ricciardi suffers from an “other specified paraphilic disorder”, namely a preference for non-consenting coercive sex, though he believed that overall Mr. Ricciardi’s behaviour in this case was more likely a function of substance abuse combined with anti-social traits.

[38] Dr. Woodside noted an atypicality in relation to Mr. Ricciardi’s age. In particular, he noted that it is unusual for an individual to begin more serious violent offending in their later years (beyond age 40). Mr. Ricciardi committed these offences when he was approximately 58 or 59 years of age. Importantly, to the extent that Mr. Ricciardi has some form of personality disorder, it is a disorder that he would have lived with since early adulthood. In this regard, Dr. Woodside noted that he accepted Mr. Ricciardi’s own report that substance abuse was also a “significant contributor’ to his offending behaviour.

[39] In terms of Mr. Ricciardi’s cognitive issues, Dr. Woodside noted in his report that there is a possibility that Mr. Ricciardi is exhibiting cognitive decline. At the outset of the dangerous offender hearing, defence counsel raised an issue regarding Mr. Ricciardi’s fitness and Dr. Woodside agreed to meet with Mr. Ricciardi to conduct a fitness assessment. Dr. Woodside found Mr. Ricciardi fit and noted that he showed improved cognitive abilities when compared with how he presented during the interviews undertaken during the initial assessment. According to Dr. Woodside, one possible explanation for the change in Mr. Ricciardi’s cognitive presentation related to changes in the medications he was taking.

[40] In terms of risk assessment, Dr. Woodside scored Mr. Ricciardi on a number of tools including the Psychopathy Checklist Revised (PCL-R), the Sex Offender Risk Appraisal Guide (SORAG) and the Static-99.

[41] In terms of the PCL-R, Dr. Woodside indicated that the test was developed in the 1980’s as a tool to diagnose psychopathy. The tool measures degrees of anti-sociality and is useful in assessing risk despite being primarily a diagnostic tool. The test scores individuals out of a total of 40 and a score of 30 is considered the formal cut-off for a diagnosis of psychopathy. In terms of the general prison population, the average score is 22 to 23. The average score amongst adult males in a non-prison setting is 4 to 6.

[42] Dr. Woodside scored Mr. Ricciardi as a 22 out of 40, which is an average score amongst prison inmates. His score places him in the 48^th percentile, which means that 52% of inmates in prison have a higher score than Mr. Ricciardi. According to Dr. Woodside, while this score is much higher than the average person’s score, it would not lead one to think that Mr. Ricciardi presented either a higher or lower risk than other offenders. In this regard, Dr. Woodside explained that inmates with scores of 25 to 26 and above, tend to differentiate themselves as being more likely to refuse treatment and more likely to struggle in a prison setting.

[43] Turning to the actuarial risk assessment tools, Dr. Woodside administered both the SORAG and the Static-99R. These are tools used to provide a probabilistic estimate of the risk of re-offence. Despite its name, the SORAG test is best used to asses the risk of any violent re-offending, including sexual re-offending amongst sex offenders as opposed to simply the risk of sexual re-offence. It is viewed as a relatively strong predictor with an accuracy rate of approximately 70-80%, depending in part on how close the test subject matches the general characteristics of the sample group used to create the test. The Static-99R, which is designed as a triage tool for use by law enforcement, relates only to assessing the risk of sexual re-offence. It is a moderately accurate predictor of recidivism. That said, in terms of simply predicting whether a person would fall into a recidivist or non-recidivist category, the test also has an accuracy rate of 70-80%.

[44] In his initial written report to the court, Dr. Woodside indicated that Mr. Ricciardi’s score on the SORAG test placed him in the 64^th percentile, meaning that he scored higher than 63% of the people in the development sample. In his evidence before me, Dr. Woodside acknowledged that he made an error in scoring Mr. Ricciardi on the SORAG. On the basis of the corrected scoring, Mr. Ricciardi’s score placed him in the 53^rd percentile, meaning that he scored higher than 52% of the people in the development sample. The corrected score placed Mr. Ricciardi in “bin 5” as opposed to “bin 6”. In the development sample, individuals whose results placed them within “bin 5” of the test result scale re-offended at a rate of 58% within 12 years of opportunity. With an allowance for a standard error rate, Dr. Woodside indicated that 49% to 67% of people with Mr. Ricciardi’s score would re-offend within 12 years of opportunity.

[45] In his report, Dr. Woodside initially described the results of Mr. Ricciardi’s SORAG as placing him within an “above average” category, or at the high end of the moderate range among previously violent offenders.

[46] On the basis of the corrected score, Dr. Woodside modified his opinion and noted that Mr. Ricciardi’s score on the SORAG placed him within a moderate or average risk category compared with other previously violent offenders.

[47] Turning to the Static-99R, Dr. Woodside opined that based on Mr. Ricciardi’s scores, he presented a “Level II below average risk.” Mr. Ricciardi’s score was in the 19^th percentile, meaning that 81% of sexual offenders in the sample group had a higher score. In terms of risk of re-offence, approximately 13% of people within the sample group with the same score as Mr. Ricciardi committed a further sexual offence within 10 years of opportunity.

[48] Dr. Woodside also applied a structured professional judgment tool known as the Risk for Sexual Violence Protocol (RSVP). This tool identifies risk enhancing and risk reducing features of a person’s presentation. On the basis of the RSVP tool, Dr. Woodside identified Mr. Ricciardi’s case as a “moderate/elevated priority”, and further noted that “some special strategies and more frequent monitoring is required.”

[49] Dr. Woodside explained that there are limitations to statistical risk assessment tools. In particular, he cautioned that the tools often under-estimate the risk of sexual re-offence due to the fact that a significant amount of sexual assault related offences are never reported. He also cautioned against placing too great a reliance on the statistical rate of re-offence, noting that the more accurate descriptor is the percentile placement of the person within the test group for the particular assessment tool.

[50] On the whole, after considering all of the material available to him, Dr. Woodside opined that Mr. Ricciardi presented a moderate/above average risk for violent recidivism and a moderate/below average risk for sexually violent recidivism. In the concluding portion of his report, Dr. Woodside noted “Mr. Ricciardi presents with a substantial (moderate) risk for violent re-offense.” [Emphasis added]

[51] On the basis of this risk assessment, Dr. Woodside opined that from a psychiatric perspective, Mr. Ricciardi met the criteria for a dangerous offender designation under section 753(1)(a)(i) and (ii). Dr. Woodside indicated that Mr. Ricciardi would likely not meet the definition of a dangerous offender under section 753(1)(b), which deals with a failure to control sexual impulses.

[52] In terms of treatability, Dr. Woodside indicated he was “cautiously optimistic” that the risk posed by Mr. Ricciardi could be managed in the community. He noted that if Mr. Ricciardi could be supervised until approximately age 75, “this could significantly lower the risk he poses to the community.” In this regard, Dr. Woodside explained that a person’s willingness to meaningfully take treatment would be a significant factor, and assuming the person received help the risk of re-offence could be lowered by as much as 30%, though that would be a generous or optimistic outcome. With respect to Mr. Ricciardi, Dr. Woodside expressed concerns about how effective treatment would be given aspects of his presentation. He did, however, note that age would be a factor to consider in terms of Mr. Ricciardi’s continuing risk, as it would be anticipated that his risk would decline along with his physical capabilities.

[53] Dr. Woodside opined that Mr. Ricciardi’s atypical presentation had an impact on the accuracy and applicability of the risk assessment tools. In cross-examination, Dr. Woodside agreed that its very unusual to see someone first commit a cluster of violent offences at Mr. Ricciardi’s age. He also agreed that it is rare for a male to commit a first sexual assault against an adult female at Mr. Ricciardi’s age, and exceedingly rare for that male to commit a second or further sexual offence.

[54] In terms of the SORAG, Dr. Woodside was questioned on whether the original sample included individuals of Mr. Ricciardi’s age. He indicated that while he did not have the precise numbers, he believed that the sample would have included a relatively small number of persons over the age of 50, with the majority being between 18 and 40 years of age. He further agreed that age was a factor in scoring the test with an older age at the time of commission of the offence warranting a reduced score. He confirmed that the applicability of the risk assessment tools depended, in part, on Mr. Ricciardi’s similarity to the sample group of individuals. In view of Mr. Ricciardi’s age, he agreed that caution was required in accepting the results of the risk assessment tools, and he further noted that he could not say whether the tools under or over-estimated the risk posed by Mr. Ricciardi. In re-examination, he was asked whether he applied caution in coming to his opinion and he offered the following explanation:

So insofar as saying that one should be aware that that potentially is an issue. That’s true for both instruments, both Static 99 Instrument and the SORAG, but it doesn’t leave me in a position to say what weight caution should be exerted.

In other words, I can’t say that the tools are over estimating or underestimating risk. We simply do not know that empirically so it doesn’t – it doesn’t leave me in a better position to assist beyond saying yes, that the statistics may not apply equally as well to individuals of this age because they may not have been well represented in the samples.

The Dangerous Offender/Long-Term Offender Application

[55] Part XXIV of the Criminal Code sets out a scheme for the designation and sentencing of dangerous and long-term offenders. The scheme has been amended and modified over the years, but at its core, it aims to prospectively protect society from a particularly dangerous subset of offenders who meet the statutory test for risk of violent re-offence; see R. v. Johnson, 2003 SCC 46, [2003] S.C.J. No. 45, at paras. 19, 23, and 29.

[56] The relevant portions of section 753 of the Code provide as follows:

753 (1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied

(a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing

(i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour,

(ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour,

(4) If the court finds an offender to be a dangerous offender, it shall

(a) impose a sentence of detention in a penitentiary for an indeterminate period;

(b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment of imprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed 10 years; or

(c) impose a sentence for the offence for which the offender has been convicted.

Sentence of indeterminate detention

(4.1) The court shall impose a sentence of detention in a penitentiary for an indeterminate period unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a lesser measure under paragraph (4)(b) or (c) will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

If offender not found to be dangerous offender

(5) If the court does not find an offender to be a dangerous offender,

(a) the court may treat the application as an application to find the offender to be a long-term offender, section 753.1 applies to the application and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or

(b) the court may impose sentence for the offence for which the offender has been convicted.

[57] Before an offender can be designated a dangerous offender, the Crown must establish two elements beyond a reasonable doubt. First, it must be established that the accused committed a “serious personal injury offence” as that term is defined. Second, it must establish that the offender represents “a threat to the life, safety or physical or mental well-being of other persons.” The requisite threat level is determined by assessing whether the offender exhibited any one of the patterns of violent offending listed in s.753(1)(a)(i) – (iii); see R. v. Boutilier, 2017 SCC 64, at para. 18.

[58] If the court is satisfied that the Crown has proven the two elements beyond a reasonable doubt, the offender must be designated a dangerous offender. The court then has three options in terms of sentencing the offender; (i) an indeterminate sentence, (ii) a long-term supervision order, or (iii) a fixed sentence. The offender must receive an indeterminate sentence unless the court is satisfied that there exists a reasonable expectation that a lesser sentence will adequately protect the public.

[59] In Boutilier, supra, the Supreme Court was asked to consider whether the most recent amendments to the dangerous offender scheme were constitutional. In this regard, the Supreme Court noted the constitutionality of the scheme hinged on the fact that it was targeted towards a very small group of offenders who pose a degree of risk that warrants indeterminate detention on the basis of public protection, see Boutilier at paras. 26-28, and see also R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309.

[60] Drawing on Lyons, the Court in Boutilier noted the “future-oriented” aspect of the dangerous offender scheme and affirmed the view that in order to designate a person as a dangerous offender, the court must be satisfied that the offender poses “a high likelihood of harmful recidivism” and further that the offender’s conduct is intractable; see Boutlier at para. 27, and see also R. v. Williams, 2018 ONSC 2030 per Hill J. at para. 243.

[61] On the issue of the appropriate scope of the dangerous offender scheme, Cote J. offered the following guidance in Boutilier at paras. 34 and 35:

…A provision imposing an indeterminate detention is therefore not overbroad if it is carefully ‘confined in its application to those habitual criminals who are dangerous to others’: Lyons, at p. 323. For an offender to be so ‘dangerous’ as to render the ‘clearest and most extreme form’ of preventive sentence a rational means to achieve the purpose of public safety, the offender must pose a future ‘threat’ to public safety. This threat, characterized by the elements set out in Lyons, must consequently elevate the sentencing objective of segregation from society, at least in part, over the other objectives: Lyons, at pp. 328-29.

Determining whether or not a high risk of recidivism and intractability are present necessarily involves a prospective inquiry into whether an offender will continue to be, in Justice Dickson’s words (as he then was), “a real and present danger to life or limb”: Hatchwell v. The Queen, 1974 CanLII 203 (SCC), [1976] 1 S.C.R. 39, at p. 43.

Analysis

[62] The Crown must prove beyond a reasonable doubt that Mr. Ricciardi is a dangerous offender. From Boutilier and Lyons, it is clear that the dangerous offender designation is constitutionally reserved for a small number of persistent offenders who demonstrate a high likelihood of violent recidivism and intractability.

[63] There is no question that Mr. Ricciardi committed a cluster of extremely serious offences. The pattern of offences raises objective concerns meriting an examination as to whether Mr. Ricciardi falls within the small subset of offenders described in Boutilier and Lyons.

[64] It is not contested that Mr. Ricciardi has committed a serious personal injury offence. In fact, he has committed several. I therefore turn to assessing whether I am satisfied that the offences committed form part of a pattern as set out in ether section 753(1)(a)(i) or (ii). I pause to note that the Crown does not argue that either section 753(1)(a)(iii) or 753(1)(b) apply in this case.

[65] In assessing the pattern of offending, I am mindful of the fact that the mere existence of a pattern does not, in and of itself, satisfy the criteria for a dangerous offender designation. Rather the evidence of a pattern of offences as defined by either section 753(1)(a)(i) or (ii) must allow the court to conclude that the offender poses the requisite high likelihood of risk and intractability as discussed in Boutilier.

[66] Section 753(1)(a)(i) requires proof of a pattern of repetitive behaviour. The pattern of offences does not need to reach the degree of similarity required in a similar act evidence application, though there must be sufficient commonalities between the offences so as to permit the court to discern a relevant or meaningful pattern; see R. v. Langevin, 1984 CanLII 1914 (ON CA), [1984] O.J. No. 3159 (Ont.C.A.) and R. v. Brissard, 2017 ONCA 891 at paras. 56-57, and R. v. Williams, supra, at para. 251. The pattern of behaviour must reveal a likelihood of causing death or injury or severe psychological harm through failure in the future to restrain the behaviour. On this issue, Dr. Woodside opined that from a psychiatric perspective, the results of the risk assessment suggest that the risk portion of this criterion for a dangerous offender designation is “likely met.”

[67] In terms of section 753(1)(a)(ii), the evidence must establish a pattern of persistent aggressive behavior. This pattern can be established by similarity, but also by result. In other words, it is not required that the aggressive behaviour be similar in kind, only that it be persistent; see R. v. Neve, 1999 ABCA 206, [1999] A.J. No. 753 (C.A.) at para. 111. Persistence connotes behaviour which is enduring, continuous, obstinately persevering, interminable or sustained; see R. v. Williams, supra, at para. 252. In addition, the pattern must show a substantial degree of indifference by the offender respecting the reasonably foreseeable consequences of his or her behaviour. In Dr. Woodside’s view, Mr. Ricciardi has demonstrated a lack of empathy for his victims and a lack of responsibility for his actions, including minimization and denial of the offences. From a psychiatric perspective, Dr. Woodside notes that Mr. Ricciardi’s lack of empathy and failure to accept responsibility and show remorse is “consistent with” a significant degree of indifference to the potential effects of his behaviour.

[68] When I consider all of the evidence before me on the dangerous offender hearing, including Dr. Woodside’s expert opinion, the collateral material including the material regarding Mr. Ricciardi’s background, character and history, I readily come to the conclusion that the Crown has failed to prove beyond a reasonable doubt that Mr. Ricciardi warrants designation as a dangerous offender.

[69] In my view, even assuming that the offences before me establish a pattern of repetitive behaviour or a pattern of persistent aggressive behaviour, as required by section 753(1)(a)(i) and (ii), the psychiatric opinion evidence of Dr. Woodside is dispositive of the core issue in this case, which is whether Mr. Ricciardi ultimately exhibits the high likelihood of risk and intractability required in order to warrant a finding of dangerousness. Accepting the expert opinion of risk at its highest, Mr. Ricciardi presents a moderate risk of violent re-offence and low to moderate/below average risk of sexual re-offence. I pause to note that Dr. Woodside describes this risk in his written report as “substantial (moderate)”. This is curious as “substantial” is not generally synonymous with “moderate.”

[70] In any event, the core of Dr. Woodside’s opinion as revealed in examination in-chief and in cross-examination, is that Mr. Ricciardi’s degree of risk for violent re-offence is essentially average within the prison population. This opinion was based on a full clinical assessment of Mr. Ricciardi, a review of his medical, psychological and criminal antecedents, personal history and background, as well as a consideration of the results of several diagnostic and risk assessment actuarial tools.

[71] The results of the diagnostic and actuarial risk assessment tools are telling. To recap, on the PCL-R, Mr. Ricciardi’s score was 22. This is an average score for a person in the prison population. It falls below the diagnostic cut off for psychopathy and also falls below the score which is correlated with poor management and progress in the prison setting. On the SORAG, once Dr. Woodside’s scoring error was corrected, Mr. Ricciardi presented as having roughly the same risk for violent re-offence as the average offender in the development sample. Lastly, on the Static-99R, Mr. Ricciardi’s risk for sexual re-offence was well below the average for offenders in the sample group.

[72] The combination of the clinical assessment along with the various diagnostic and actuarial test results suggests that overall, Mr. Ricciardi is about as dangerous as the average person who is either incarcerated or has committed a previous violent offence. While there is no doubt that the average incarcerated or previously violent person presents an elevated risk when compared to the average law-abiding citizen, the dangerous offender provisions are simply not aimed at this group. Put bluntly, if on the evidence before me I were to designate Mr. Ricciardi a dangerous offender, the reach of the dangerous offender provisions would be unconstitutionally broad.

[73] My conclusions on this issue are strengthened when I consider the issue of Mr. Ricciardi’s atypicality. Mr. Ricciardi committed this cluster of offences during a relatively short period of time commencing when he was 58 years of age. Prior to that age Mr. Ricciardi did not commit any serious violent offence, and incurred only two minor entries on his criminal record and a few other minor criminal law contacts. Apart from the fact that he has abused drugs and alcohol for a long time, his characterolgical background adds little of significance in terms of his offending behaviour.

[74] Dr. Woodside was candid in acknowledging that the risk assessment tools must be interpreted with some measure of caution, because Mr. Ricciardi’s pattern of offending does not fit the patterns most commonly exhibited by offenders. On this issue, Dr. Woodside acknowledged that he could not say whether Mr. Ricciardi’s atypicality resulted in either an over or under-estimation of his risk, simply that it resulted in a caution.

[75] I note that the burden of proving that Mr. Ricciardi is a dangerous offender rests with the Crown beyond a reasonable doubt. The fact that his atypical presentation warrants some degree of caution regarding the results of the actuarial risk assessments does not prove that he is any more dangerous. It simply results in an absence of evidence or perhaps a reduction in the weight to be accorded to the evidence of risk.

[76] Finally, I also consider the issue of intractability. In this regard, I note that Dr. Woodside’s view was that Mr. Ricciardi’s criminality was motivated by his anti-social personality traits and his substance abuse disorder.

[77] In terms of the personality disorder, it is well understood that personality disorders are difficult to treat as they are essentially fixed. In this sense, Mr. Ricciardi will always have some form of personality disorder with anti-social traits. Indeed, he has had this disorder all of his adult life. Nonetheless, despite the disorder, he avoided serious criminality until age 58.

[78] In terms of Mr. Ricciardi’s substance abuse disorder, it is clear that his use of drugs and alcohol played a role in the commission of these offences. The exact nature of the role is not clear, though at a minimum his alcohol and drug use likely had a disinhibiting effect. I note that Mr. Ricciardi claims that his main motivation in committing these offences was obtaining money for more drugs and alcohol. He also claims that he was high and drunk while committing the offences. There is some evidence supporting the view that he committed the offences while impaired. It is also possible that obtaining money for drugs and alcohol was a motivation behind the break and enter into the Catenaro residence. Indeed, Mr. Ricciardi pawned a valuable item shortly after that offence. That said, I do not accept that the other offences were committed in order to simply obtain money. At no time during any of the other offences did Mr. Ricciardi demand or attempt to take money.

[79] While Mr. Ricciardi has abused drugs and alcohol for long portions of his adult life, he has expressed a willingness to seek treatment and he has presumably been free of illegal drugs since his date of incarceration. The prognosis for treating someone with combined personality disorders and substance abuse disorders is not particularly inspiring. Nonetheless, Dr. Woodside ultimately expressed a “cautious optimism” that Mr. Ricciardi’s behaviour could be regulated, and that the risk he presents could be significantly reduced if he was subject to supervision and programming until he neared the age of 75.

[80] Dr. Woodside’s evidence on Mr. Ricciardi’s treatability would be of significant relevance if he were to be designated a dangerous offender and the court had to decided how to sentence him. That said, for the purpose of designation, Dr. Woodside’s evidence does not suggest that Mr. Ricciardi is intractable. It suggests quite the opposite. In my view, the evidence of Mr. Ricciardi’s tractability is a further and final factor that is dispositive against a dangerous offender designation.

[81] On this basis, the application for a dangerous offender designation is dismissed and there is no need to consider the penalty phase of the dangerous offender procedure. I should add that even if I am wrong in terms of designating Mr. Ricciardi as a dangerous offender, this is a case where I would have nonetheless imposed a lengthy fixed sentence in order to address the risk to the public that he poses. In view of Mr. Ricciardi’s age and the evidence of Dr. Woodside on his degree of risk, I would have otherwise been satisfied that a lengthy fixed sentence would adequately protect the public in the circumstances of this case.

Long-Term Offender Application

[82] While the Crown’s central submission was that Mr. Ricciardi should be designated as a dangerous offender, it briefly advanced the alternative position that if the application for a dangerous offender designation was dismissed, the court should treat the application as an application to find Mr. Ricciardi to be a long-term offender pursuant to section 753.1.

[83] Under section 753.1, a court may find an offender to be a long-term offender where it is satisfied that: (a) it would be appropriate to impose a sentence of two years or more; (b) there is a substantial risk that the offender will re-offend; and, (c) there is a reasonable possibility of eventual control in the community of the risk posed by the offender.

[84] Section 753.1(2) of the Code provides that a court shall be satisfied that there is a substantial risk of re-offence if the offender has been convicted of certain sexual offences and the offender has either shown a pattern of repetitive behaviour, of which the offence for which he is being sentenced forms a part, that shows a likelihood of the offender causing death or injury to other persons or inflicting severe psychological damage on another person or by conduct in any sexual matter including that involved in the offence has shown a likelihood of causing injury, pain or other evil to other persons in the future through similar offences.

[85] The Crown argues that in this case, section 753.1(2) operates to effectively deem a substantial risk of re-offence in relation to Mr. Ricciardi.

[86] In my view, the section does not apply in this case. I note that under section 753.1(2)(b)(i), the court is required to find that the pattern of repetitive behaviour shows a likelihood that the offender will cause death or injury, or inflict serious psychological damage on another person. In my view, for the reasons I provided above in relation to the dangerous offender application, I am not satisfied that the requisite likelihood of re-offence has been established on the basis of the evidence before me. Further, there is insufficient evidence before me to support the applicability of section 753.1(2)(b)(ii). In short, I am not satisfied that Mr. Ricciardi’s conduct in relation to Ms. C.V. supports a likelihood that he will cause injury, pain or other evil to other persons in the future through similar offences.

[87] If I am wrong in this brief analysis, I note that unlike the current version of section 753 which grants no designative discretion in relation to dangerous offenders, section 753.1 maintains the court’s discretion to find a person to be a long-term offender. As such, even if the substantial risk criterion were to be satisfied by application of section 753.1(2), in view of Dr. Woodside’s evidence on the degree of risk posed by Mr. Ricciardi, I would exercise my discretion to not find him to be a long-term offender. Again, I am satisfied that the risks posed by Ricciardi can be best addressed by a long fixed sentence, especially in view of his age.

[88] As a result, the application to find Mr. Ricciardi to be a long-term offender is also dismissed.

The Sentencing Hearing

(a) Position of the Parties

[89] The Crown seeks a global sentence of 15 and ½ years in the penitentiary, less pre-sentence custody credited at rate of 1.5 to 1. The Crown argues that even with the application of the totality principle, this series of offences supports the imposition of a lengthy sentence that emphasizes the protection of the public through denunciation and deterrence. During submissions, the Crown provided a chart setting out its various positions in respect of the individual counts. The Crown notes that the court can use concurrent and consecutive sentences to give effect to the totality principle and to avoid double counting aggravating factors. Ultimately, the Crown suggests that each attack roughly merits a four to five year sentence, with some additional time in relation to the break and enter of the Catenaro residence and the offences committed or discovered upon arrest. Lastly, the Crown seeks the usual ancillary orders including a DNA order, a weapons prohibition for life, a SOIRA order for 20 years, a section 743.21 order prohibiting contact with any of the named victims, including any of the Craigslist ads complainants, and a forfeiture order in relation to certain seized items.

[90] The defence argues that Mr. Ricciardi is essentially a first offender who is older than usual, and presents with health issues and drug and alcohol addictions. The defence accepts that the attacks and related offences warrant a denunciatory and deterring sentence, but argues that when the offences are viewed in a proper context they are not as serious as the Crown suggests. Ultimately, the defence argues that in view of the principle of totality each attack roughly merits a consecutive high reformatory or low penitentiary sentence. On the whole, the defence argues that a sentence of seven to eight years is sufficient to send the appropriate denunciatory and deterring message while not ignoring Mr. Ricciardi’s age, health concerns and personal antecedents. The defence notes that in view of pre-sentence custody, any further jail time can be supplemented with a probation order. Lastly, the defence does not oppose any of the ancillary orders other than the Victim Fine Surcharge.

(b) Principles of Sentencing

[91] The objectives of sentencing long recognized at common law have been codified in Section 718 of the Criminal Code. They are: the protection of society and the maintenance of a just, peaceful and safe society through the denunciation of unlawful conduct; deterrence, both general and specific; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims or the community; and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.

[92] 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 requires that a sentence be similar to those imposed on similar offenders in similar circumstances. It also requires that where consecutive sentences are imposed, the combined or overall sentence shall not be unduly long or harsh.

[93] The three attacks in this case involve, to varying degrees, the use and threatened use of violence on complete strangers. Mrs. S.N. was attacked while re-entering her car in a mall parking lot. Ms. C.V. was attacked inside a store. Mrs. G.E. was attacked inside her home. All three victims have a degree of vulnerability. Mrs. S.N. was in her late middle age who was walking alone to her car. She feared for her life and begged Mr. Ricciardi to spare her. Ms. C.V. was a store clerk who was spared further sexual violence only because of the happenstance intervention of members of the public. Mrs. G.E., a relatively elderly widow, was attacked within the sanctity of her own home.

[94] In view of the nature of the offences, the principles of denunciation and general and specific deterrence are of key importance. The primacy of these principles is required in order to protect society from Mr. Ricciardi and from people who might be inclined to commit similar offences.

[95] The need for a denunciatory and deterring sentence is to be moderated by two further principles. First, the principle of totality requires that the overall sentence imposed is not simply an exercise in adding together the individual sentences that would otherwise be warranted in relation to the various charges. While the principle of totality is not to be equated with a volume discount, it is a recognition that the global sentence imposed should remain proportionate to the overall gravity of the offences committed and should not be crushing, see R. v. Johnson, 2012 ONCA 330, at paras. 15-19.

[96] Second, while denunciation and deterrence are prime sentencing considerations, I cannot completely ignore the fact that Mr. Ricciardi is essentially an older offender with no significant criminal record. While the offences are very serious, Mr. Ricciardi also managed to get through most of his adult life without committing other serious violent offences. As such, I cannot ignore his prospects for rehabilitation.

[97] In terms of the range of sentence, I have been provided with a number of sentencing authorities. Not surprisingly, none of the cases provided are on “all fours” with this case. In fact, most of the cases have no similarity to what occurred in this case and are of limited value in discerning a range.

[98] In considering the range of sentence for attacks similar to those in this case, I rely on R. v. Bermudez-Rivera, 2010 ONCA 653, R. v. Davis, 2012 MBQB 9, and R. v. Williams, 2003 BCPC 68. Based on these cases, I am of the view that an attack such as that on Ms. C.V. or Mrs. S.N. can readily attract a significant penitentiary term after trial. While the attack on Mrs. G.E. is the least serious of the three attacks, it has a number of aggravating features that make it serious enough to also warrant a penitentiary sentence following trial. While I accept that several cases provided by the defence resulted in reformatory sentences, those cases tend to involve guilty pleas from youthful first offenders and/or fact scenarios that are not nearly as aggravating as those present here.

(c) Aggravating and Mitigating Facts

[99] I turn next to considering the aggravating and mitigating facts.

[100] In terms of the attack on Mrs. S.N., I find the following facts to be aggravating:

a. The attack involved a degree of planning and preparation. Mr. Ricciardi was effectively wearing a disguise. He selected and pursued his victim to her car as she was engaged in a routine everyday task.

b. He was armed with a knife which was used during the attack.

c. His interaction with Mrs. S.N. was prolonged and it involved Mrs. S.N. essentially begging for her life.

d. The attack has had a significant and prolonged impact on Mrs. S.N.

e. A few days after the attack, he went to her residence armed with a knife. He discovered where she lived because he had stolen her purse which had her identification in it. When he went to her residence, he had her house keys with him and was observed going up and down the elevator where she lived.

[101] In terms of the attack on Ms. C.V., I find the following facts to be aggravating:

a. Ms. C.V. was attacked in a store where she worked as a retail clerk.

b. The offence was planned. Mr. Ricciardi attended at the store earlier that same day and spoke with the victim in advance of the attack. He was also seen on security cameras “casing” the store. Mr. Ricciardi asked to see dresses at the back of the store, which was obviously an attempt to get Ms. C.V. out of the front area of the store where an attack would have been more visible to others.

c. The significant physical assault was accompanied by a graphic threat of violence.

d. The offence was committed while he was on bail for the offences involving Mrs. S.N.

e. The attack had a significant and prolonged effect on Ms. C.V.

[102] In terms of the attack on Mrs. G.E., I find the following facts to be aggravating:

a. Mrs. G.E. is a relatively elderly widow who lived on her own. She was followed from the lobby of her apartment building to the door of her apartment unit.

b. The offence occurred inside Mrs. G.E.’s residence. Mr. Ricciardi knew she there having followed her to the door, and he used violence once inside her residence. This is a statutory aggravating circumstance pursuant to section 348.1 of the Code.

c. Mr. Ricciardi returned to her residence the following day armed with a knife and handcuffs. He would have had no legitimate reason to be in her building.

[103] In submissions, the Crown argued that I should treat Mr. Ricciardi’s conduct in relation to the Craigslist charges and his conduct in terms of attempting to obtain a firearm and GHB as aggravating. In short, the Crown submits that in addition to committing these offences, Mr. Ricciardi was actively engaged in internet trolling activities targeting females, and also engaged in trying to purchase other likely nefarious items unlawfully.

[104] I agree with the Crown that the activities he engaged in, particularly the internet trolling, make him a distinctly unlikeable member of society. That said, I am not prepared to find these activities are aggravating factors in relation to the offences he committed. While his conduct is anti-social, I do not find it to be sufficiently related to the offences and, as such, it would be unfair to aggravate his sentence. However, his conduct fairly serves to deprive him of the possible mitigation that being otherwise engaged in a pro-social lifestyle might provide.

[105] In terms of mitigating facts, I note the following:

a. Mr. Ricciardi has essentially no criminal record. I place no weight whatsoever of the absolute discharge from 1977. The conviction from 1994 is also very dated and relates to a minor offence.

b. Mr. Ricciardi has rehabilitative prospects. While I accept that the expert evidence before me on the dangerous offender hearing suggests that he may have a personality disorder which is essentially fixed, Mr. Ricciardi managed to get through most of his adult life without committing offences and has demonstrated some limited insight into his various issues.

c. Mr. Ricciardi has a drug and alcohol dependency that played a role in the offences. That said, and as indicated earlier, I am not prepared to find these offences were committed in order to obtain money for more drugs and alcohol. In particular, I note that the during the attack on Mrs. S.N., Mr. Ricciardi declined offers of money and jewelry, and a quantity of money which Mrs. S.N. had in her car was left untouched. Similarly, there was no attempt to seek or take money during the attack on Ms. C.V., who was a sales clerk in a bridal boutique.

(d) Analysis and Findings

[106] In terms of the overall series of offences, I find that they involve a significant degree of moral culpability. Mr. Ricciardi engaged in repeated and terrifying acts involving violence against women. He was arrested after the first attack and was undeterred either by his arrest or by his bail conditions. There was a sexual component to the attack on one of his victims. In relation the other two victims, he was found at or near their homes in the days following the initial attacks. The return to the residence of his victims is particularly chilling, especially when one considers that on both occasions he was armed with a knife. As well, in relation to Mrs. S.N., he had her house keys on him and used them to access her apartment lobby and elevator. Lastly, in relation to Mrs. G.E., he had handcuffs on him when he returned to the area of her building.

[107] When I consider and balance the applicable sentencing principles, including totality and proportionality as well as the aggravating and mitigating factors, I reach the following conclusions in terms of fit sentences for each count:

[108] In terms of the attack on Mrs. S.N., I find that the appropriate sentence on the attempt kidnapping (Count 2) is five years in the penitentiary. I find that five years concurrent is an appropriate sentence on the robbery (Count 3).

[109] In relation to the carry concealed weapon (Count 5), I agree with the Crown that a six month sentence is appropriate. However, I make this sentence concurrent, as I have already counted the facts underlying this offence as aggravating in relation to the attempt kidnapping and robbery offences.

[110] For similar reasons, while I impose a six month sentence for possession of stolen property (Count 6), that sentence will be concurrent to the sentence on the attempt kidnapping and robbery. The property possessed by Mr. Ricciardi was taken by him during the robbery, though it was used by him in a manner that I found aggravating in relation to the robbery and attempt kidnapping.

[111] In terms of the attack on Ms. C.V., I find that the appropriate sentence is one of five years consecutive in relation to the attempt sexual assault with a weapon. This was a violent, premediated offence committed while on bail for the first offences. I also impose the following concurrent sentences: face masked (Count 8) – one year, unlawful confinement (Count 9) – five years concurrent, and assault with a weapon (Count 7) – five years concurrent.

[112] In terms of the attack on Mrs. G.E., I impose a sentence of three years consecutive on the break and enter (Count 11). This offence was the least serious of the three attacks. It was not lengthy in duration. It did not involve a significant degree of actual or threatened violence. However, the offence is aggravated by the fact that Mr. Ricciardi returned to Mrs. G.E.’s residence the following day armed with a knife and handcuffs.

[113] I also impose concurrent sentences of one year each in relation to the assault (Count 12) and the criminal harassment (Count 16) against Mrs. G.E. In this regard, I note that the assault forms part of the statutory aggravating circumstance of the break and enter and should be concurrent so as to not be double counted.

[114] In terms of the carry concealed weapon (Count 17), I have considered Mr. Ricciardi’s possession of the weapon as an aggravating feature of the attack on Mrs. G.E. As such, while it would ordinarily result in a consecutive sentence, I impose a sentence of six months concurrent.

[115] I also impose a sentence of six months consecutive for the attempt to obstruct police (Count 18). This is an offence that should as a matter of principle attract a consecutive sentence, and in the circumstances of this case I am not satisfied that it should be concurrent out of a concern for totality.

[116] In terms of the break and enter into the Catenaro residence (Count 1), I impose a sentence of six months consecutive. This was not the most sophisticated break and enter, but it involved a violation of the Catenaro’s home and bedroom and resulted in the theft of personal items with sentimental value.

[117] Lastly, I turn to the two counts of fail to comply with bail (Counts 19 and 20). The Crown’s position is that these offences would ordinarily warrant consecutive sentences. However, in view of the principle of totality, the Crown submits that a sentence of two years concurrent on each count is warranted. I agree with the Crown’s position. The sentence on these two counts will be two years concurrent in view of the principle of totality.

[118] The global sentence, before any pre-sentence custody credit, is therefore one of 14 years.

(e) Enhanced Credit – R. v. Duncan

[119] I turn next to assessing whether any mitigation or further enhanced credit should be granted on the basis of R. v. Duncan, 2016 ONCA 754. There is no issue that in instances where harsh pre-trial custodial conditions have impacted an accused, the courts have the discretion to mitigate a sentence or grant an enhanced credit for pre-trial custody.

[120] In this case, I have no evidence from Mr. Ricciardi outlining the impact that the lockdowns he endured had any specific impact on him. The defence nonetheless suggests that in view of the number of lockdowns over the very lengthy period of Mr. Ricciardi’s pre-sentence custody, some degree of impact on him can be inferred. The Crown argues that in the absence of any evidence from Mr. Ricciardi, this is not a case where any enhanced credit is warranted.

[121] In assessing how to measure the impact of the harsh custodial conditions and how to assess whether further mitigation is appropriate, I am guided by the following caselaw: R. v. Kizir, 2018 ONCA 781, R. v. McIntyre, 2019 ONCA 161, R. v. Jama, 2018 ONSC 1252, R. v. Ward-Jackson, 2018 ONSC 178, and R. v. Innis, 2017 ONSC 2779; I note that there is no rigid or mathematical formula that is applied in assessing what further credit should be applied.

[122] The defence seeks additional credit of .5 days for each day spent in custody, or some other amount to reflect the inferred impact that this number of lockdowns would have had on Mr. Ricciardi.

[123] In my view, minimal credit is warranted in the circumstances of this case. While the number of lockdowns is high, I have no specific evidence from Mr. Ricciardi detailing what impact these lockdowns had on him. As well, I note that he was never triple bunked during his time in custody. That said, on the evidence before me, Mr. Ricciardi was subject to a lockdown on average one out every four days he spent in custody. Given the length of time he has served in pre-sentence custody and the frequency of lockdowns during that time period, I am prepared to infer some impact on Mr. Ricciardi.

[124] As indicated in the caselaw, there is no rigid or mathematical formula to be applied in assessing the amount of enhanced credit to be applied. I am prepared to grant an additional four months and nine days credit which brings Mr. Ricciardi’s pre-trial custody to seven years and six months.

(f) Sentence Imposed

[125] Applying credit for the equivalent of seven years and six months to the global sentence of 14 years, leaves a net sentence of 6 years and 6 months starting from today’s date. The net sentence shall be broken down as follows:

Count 1 – Break and Enter – One day in addition to the equivalent of six months pre-trial custody

Count 2 – Attempt kidnapping – One concurrent day in addition to the equivalent five years of pre-trial custody.

Count 3 – Robbery – One day concurrent

Count 5 – Carry Concealed Weapon – Six months concurrent

Count 6 – Possession of Stolen Property – Six months concurrent

Count 7 – Assault with a weapon - Five years concurrent

Count 8 – Face masked – One year concurrent

Count 9 – Unlawful confinement – Five years concurrent

Count 10 – Attempt Sexual Assault – Three years consecutive in addition to the equivalent of two years of pre-trial custody

Count 11 – Break and Enter – Three years consecutive

Count 12 – Assault – One year concurrent

Count 13 – Face masked – One year concurrent

Count 16 – Criminal Harassment – One year concurrent

Count 17 – Carry concealed weapon – Six months concurrent

Count 18 – Attempt Obstruct – Six months consecutive

Count 19 – Fail to Comply Bail – Two years concurrent

Count 20 – Fail to Comply Bail – Two years concurrent

[126] I also impose the following ancillary orders: a DNA order, a weapons prohibition order for life, a SOIRA order for 20 years and a non-communication order in relation to any of the named complainants, including the Craigslist complainants.

[127] I decline to impose a Victim Fine Surcharge. In view of Mr. Ricciardi’s age, financial predicament and employment prospects once he is released from prison, the additional financial penalty will impose too great a hardship on him.

[128] Lastly, a copy of Dr. Woodside’s report and the recommendations therein will accompany a copy of these Reasons to the correctional institute where Mr. Ricciardi finds residence. An addendum or amendment to the report should be undertaken to correct the error in scoring the SORAG.

Justice J. Di Luca

Read Orally: November 14, 2019

Released: November 15, 2019

Corrigenda Released: January 6, 2020

NOTE: As noted in court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.

CORRIGENDA

1. In paragraph 125, Count 14 has been changed to Count 16 and Count 15 has been changed to Count 17.

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ANTONIO RICCIARDI

revised REASONS FOR DECISION ON DANGEROUS OFFENDER/LONG-TERM OFFENDER HEARING AND REASONS FOR SENTENCE

Justice J. Di Luca

Read Orally: November 14, 2019

Released: November 15, 2019

Corrigenda Released: January 6, 2020