Court File and Parties
COURT FILE NO.: CR-18-222
DATE: October 15, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Samson Aristor
Counsel:
S. Kim, for the Crown
P. Boushy, as Amicus for Mr. Aristor
SENTENCING HEARING: October 5, 2020
BEFORE: The Honourable Mr. Justice H.S. Arrell
REASONS FOR SENTENCE
INTRODUCTION:
[1] The Defendant was charged with the second-degree murder of Reald Vercani on September 10, 2017 in the City of Hamilton. After trial by jury he has been convicted of second-degree murder. The Defendant is before me now for sentencing.
[2] Mr. Aristor dismissed his trial counsel after the trial, and he has recently dismissed his counsel who was going to represent him at this sentencing hearing. Under those circumstances I made an order for Amicus to be appointed to make submissions on the sentencing hearing which has occurred.
[3] The Defendant testified on his own behalf. His defence was self defence, which the jury rejected and found him guilty as charged.
FACTS:
[4] On September 9^th, 2017, Mr. Aristor left his home with a combat knife to meet friends, including Richard Connor. They decided to attend some clubs. According to Mr. Aristor’s evidence, by September the 9^th, he had owned the knife for many months. In his own testimony he said he knew how deadly and dangerous the knife was.
[5] Mr. Aristor was familiar with the procedure of being searched for weapons before entering a club. When he arrived at the Coco Bongo club, where this murder took place, he knew he could not enter with a knife and therefore he hid it outside the club before entering. An altercation occurred in the club between Mr. Vercani and his group, and Mr. Connor and others. Mr. Aristor had attempted to be a peace maker but ultimately, he and his friend Richard Connor were ejected from the club, at which time he retrieved his knife. For whatever reason Mr. Aristor and his friend Mr. Connor waited at the door of the club instead of leaving the area. About 10 minutes later Mr. Vercani and his group emerged from the club and a further confrontation occurred between Mr. Connor and Mr. Vircani’s group. It would appear obvious that the jury rejected Mr. Aristor’s explanation that this confrontation came as a complete surprise to him. Mr. Connor was punched, and Mr. Aristor was also punched according to his evidence. No one except Mr. Aristor had a weapon.
[6] Quite quickly the security guard was able to get everyone to back off and at that point Mr. Aristor ran through an opening in the group and while doing so forcefully stabbed Mr. Vercani in the chest to a depth of 15 cm causing his death.
[7] As the jury convicted Mr. Aristor of second-degree murder, they found beyond a reasonable doubt;
i. That Mr. Aristor caused the death of Mr. Vercani;
ii. That Mr. Aristor caused the death of Mr. Vercani unlawfully;
iii. That Mr. Aristor had the state of mind required for murder which means the jury found beyond a reasonable doubt that Mr. Aristor either meant to kill Mr. Vercani or meant to cause Mr. Vercani bodily harm that Mr. Aristor knew was likely to kill Mr. Vercani and was reckless whether Mr. Vercani died or not.
CRIMINAL RECORD:
[8] There is a minor criminal record before me for Mr. Aristor involving a mischief conviction about 6 months prior to this offence. In 2007 he appears to have been convicted of some minor offences of disorderly conduct and public drunkenness in the United States.
PRESENTENCE REPORTS:
[9] Mr. Aristor was born on August 26, 1988. He was therefore 29 at the time of this offence and is currently 32 years of age. He is single and has no dependants. He is the youngest of 3 children born to his parents. He was born in Paris, France and his parents separated when he was three with his mother moving to New Jersey in the United States with the 3 children. He advised that his mother struggled financially to support the family in New Jersey, and they lived in a ghetto where crime was rampant. The family moved to Hamilton when he was 18. Mr. Aristor has had virtually no contact with his father. He described growing up under the care of his mother as normal, other than financial pressure. He continued to live with his mother who he considers an important source of strength for him until he was in his mid-twenties.
[10] Mr. Aristar was not successful in school and left at age 16 with a grade 8 education. He describes having a learning disability and being bullied. In Canada he found a job as a tire technician where he had worked for 5 years on a full-time basis up to the time of his arrest for this offence. A co-worker interviewed for this report indicated he was well liked, reliable and hard-working.
[11] Mr. Aristor described himself as a relatively heavy drinker but virtually no illicit drug use. He states that he attended church regularly.
[12] According to the author of the pre-sentence report, Mr. Aristor did not express any remorse for this killing.
[13] Mr. Aristor indicated to the author that he believes he suffers from schizophrenia, however his doctor of three years up to the time of this offence did not confirm this nor did he notice his patient struggling with any mental health issues.
RECOMMENDATIONS OF THE JURY:
[14] All 12 jurors made recommendations on parole eligibility for this offender. 8 recommended 10 years before parole eligibility, 4 recommended 15 years.
VICTIM IMPACT STATEMENTS:
[15] The court has received one victim impact statement from Mr. Vercani’s mother. Her son was 33 when his life was taken by Mr. Aristor. She speaks of her constant pain, grief and a hole in her heart. She has had some counselling, but it has not eased the pain of losing her son. He was a support to her and his younger brother after their father died in 2010. His mother indicates her son completed college and opened his own business working diligently. Mr. Vercani left behind a young daughter.
[16] I have also received what was described to me as a type of diary supposedly authored by Mr. Vercani with some pictures of him as a teenager and some typed narrative by him that is undated but clearly was authored when he was much younger telling of his aspirations when he grew up.
LETTERS OF SUPPORT FOR MR. ARISTAR:
[17] Filed with the court by Amicus, on behalf of Mr. Aristar, is a letter from his friend from work Mr. Jenkins, who was interviewed for the presentence report. He worked with the offender for 2-3 years prior to the offence. He found Mr. Aristar’s mental state fragile and complex. He spoke often of his Christianity, his faith and was seen regularly reading the bible. He often had a weapon which he said was to defend himself but never said from what and never indicated he wished to harm anyone. Mr. Jenkins believes whatever happened at the Coco Bongo was out of character as Mr. Aristar who was known at work as honest and “a big teddy bear” type of guy.
[18] I also received a letter from Alex Aristar who is the brother of the offender.
[19] I received a letter from the offender’s mother who speaks of the constant assistance he provided to her.
[20] Finally, I received a letter from the offender’s employer who confirmed full time employment from 2013-2017. He found him to be a very good employee who needed very little direction.
POSITION OF THE PARTIES:
[21] The Crown suggests that a term of parole ineligibility should be 14 years. It points out his record in the United States in 2007 and his mischief conviction in Hamilton is an aggravating factor. Likewise, his waiting outside the club rather than leaving the area was also an aggravating factor especially when he retrieved his combat knife immediately after being ejected from the club. It is also aggravating that Mr. Aristor would bring a combat knife to a social gathering that evening argues the Crown.
[22] Amicus submits that this offender should be given the minimum time for parole ineligibility of 10 years. That was the recommendation of the vast majority of jury members who heard all the evidence as well as hearing from Mr. Aristor during the trial. The evidence would appear to indicate an altercation in the club as well as one outside where Mr. Aristor’s friend was being beaten, and where Mr. Aristor himself received at least one punch according to his evidence. His record is minimal, he has supports in the community by way of his church, family, and friends. He has a good work record despite minimal education.
ANALYSIS:
[23] A judge must consider the jury recommendation, while recognizing that the jury is unschooled in the law of sentencing. S. 745.2 C.C.C.; R. v. Mafi (2000), 2000 BCCA 135, 142 C.C.C. (3d) 449;
[24] As was stated in R. v. Hoang 2002 BCCA 430, [2002] B.C.J. No. 1613 (BCCA)
“… a jury recommendation is to be considered a serious communication from the jury and may not be easily discounted, even though it is not binding on the trial judge and is made without the benefit of evidence or instructions on sentencing.”
In the case at bar the jury heard from this offender as to his background and all the circumstances of this offence.
[25] To determine the period of parole ineligibility, S. 745.4 of the Criminal Code instructs that it is necessary for me to consider: (i) the nature of the offence; (ii) the circumstances surrounding the commission of the offence; and (iii) the character of the person who committed the offence; (iv) any recommendation of the jury. See: R. v. McBride [2005] O.J. No. 1043 at para 4; R. v. Shropshire 1995 CanLII 47 (SCC), [1995] S.C.J. No. 52 at para.18.
[26] It is trite law to indicate that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. See: S. 718.1 C.C.C.
[27] This court has taken into account the principle of totality of sentence, the need to protect society from this offender, denunciation of this horrific crime, and deterrence to Mr. Aristor and others. This court will not sanction such terrible and despicable acts of violence being inflicted on members of the public.
[28] I am of the view that the predominant principles that must govern the sentence in this case are denunciation, general deterrence and specific deterrence. Rehabilitation of this offender must occupy a secondary place given all the facts of this crime, however, given that he is only 32 rehabilitation is a relevant consideration for this court.
[29] The facts of this murder are particularly disturbing. A combat knife was brought to a social gathering of friends where alcohol would be consumed. It was purposely hidden by this offender because he well knew for very good reasons that weapons such as these were not allowed in clubs.
[30] Mr. Vercani was unarmed, it does not appear that he was the individual in his group that punched Mr. Aristor. The altercation had subsided and there was nothing stopping Mr. Aristor from leaving the area. Indeed, there was absolutely nothing stopping him from leaving 10 minutes earlier when he was ejected from the club even though he claims he was waiting for two other friends that he had come with, as his laundry was at their house. He could have easily met up with them later at their home or the next morning.
[31] I am persuaded by the unique facts of this case, as horrible and violent as they are, that this offender does not pose a potential risk to the community in the future. Although rehabilitation is not paramount in this case it is still important given Mr. Aristor’s age, generally positive pre-sentence report, family support and excellent work record.
[32] I am mindful of the instructions in R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227 at para. 27:
“In my opinion, a more appropriate standard, which would better reflect the intentions of Parliament, can be stated in this manner: as a general rule, the period of parole ineligibility shall be for 10 years, but this can be ousted by a determination of the trial judge that, according to the criteria enumerated in s. 744, the offender should wait a longer period before having his suitability to be released into the general public assessed. To this end, an extension of the period of parole ineligibility would not be "unusual", although it may well be that, in the median number of cases, a period of 10 years might still be awarded.”
[33] Amicus has referred this court to two cases which are instructive being R. v Stiers, 2010 ONCA 656, [2010] O.J. No. 4242 (OCA) (leave to SCC dismissed) and R. v Pyne, (1997), 1997 CanLII 1472 (ON CA), 104 O.A.C. 225. In Stiers the court described the appellant in para.5 as follows;
“The appellant was 23 years old at the time he committed this offence. He worked as a painter and labourer and had fathered three children. He had a criminal record consisting of 14 prior convictions, none involving offences of violence and most involving the breach of court orders. The appellant had a limited education and a serious history of alcohol and drug abuse. There was a clear link between the appellant's criminal behaviour and his abuse of alcohol.”
[34] The court substituted a second-degree conviction in place of the conviction for first degree murder of the jury. The crown suggested a sentence of between 12-15 years. The Court of Appeal, following Pyne stated at para 17;
“In our view, this case, like Pyne, is one where it is appropriate to follow the "general rule" of a 10 year period of parole ineligibility mentioned by the Supreme Court of Canada in Shropshire. We point out that the sentence is one of life imprisonment and that the issue of when, if ever, the appellant has made sufficient progress to be considered an appropriate candidate for parole is in the hands of the Parole Board.”
[35] In both Pyne and Stiers the victim had been stabbed in retaliation for an earlier attack by the victim. Both cases in my view are similar to the case at bar. I find that the cases submitted by the Crown are helpful, especially R. v. Bengy 2012 ONSC 4463, [2012] O.J. No. 3694 and R. v Othman [2016] O.J. No. 6811. This court feels the Court of Appeal decisions in Stiers and Pyne give the best guidance in all the circumstances of this case.
CONCLUSION:
[36] I have concluded that the appropriate range of sentence for parole ineligibility in this particular case is between 10 - 12 years. I accept that there was an issue between the Mr. Vercani’s group of friends and Mr. Aristor’s friends that evening which was no doubt fuelled by alcohol.
[37] I am mindful of the recommendations of the jury. They are 12 members of this community who heard all of the evidence regarding the facts and background of all those involved. They sat in judgment on this case and their opinions are a valuable insight into the degree of this offender’s moral culpability, as seen by this community.
[38] I am also cognizant that that the vast majority of jurors felt that 10 years of parole ineligibility for this particular offender in this particular case was appropriate.
[39] This court is also mindful of Mr. Aristar’s apology to the victim’s family and his plea for forgiveness from them. He clearly expressed remorse in this courtroom, if not to the author of the pre-sentence report.
[40] This court is also well aware that violence in public places where innocent by-standers might be at risk, as here, cannot be tolerated. This community will not sanction anyone taking the life of another in such a senseless fashion as this, nor will this court.
[41] I have concluded that 10 years of parole ineligibility reflects the appropriate governing principles and is within the range of sentence imposed in similar offences, committed by similar offenders in similar circumstances, as the Criminal Code requires.
[42] No sentence that I impose can restore Reald Vercani to where he should be as a living, breathing, contributor to his family and friends. It should be remembered that a period of parole ineligibility is no guarantee of parole, especially in these circumstances.
[43] Samson Aristor, I sentence you to imprisonment for life without eligibility for consideration for release on parole until you have served at least 10 years of your sentence. By statute, that period commences on the date of your arrest. The date on which you are first eligible to apply for release on parole, which I am by statute required to advise you, is September 11, 2027.
[44] In addition, there will be an order that you will provide to the authorities’, samples of bodily substances suitable for DNA analysis and inclusion in the National DNA Data Bank.
[45] There will as well be an order under S. 109 of the Criminal Code prohibiting you from having in your possession any firearms, ammunition, explosive substances or any other items mentioned in that section for the balance of your life.
[46] There will be a S. 490.1 weapons forfeiture order of the combat knife which was the murder weapon.
Arrell J.
Released: October 15, 2020
COURT FILE NO.: CR-18-222
DATE: October 15, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and -
Samson Aristor
REASONS FOR SENTENCE
Released: October 15, 2020