COURT FILE NO.: CR-22-40000691-0000 DATE: 20230622
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – IOURII STAROSTIN
Counsel: Patricia Garcia and Ovis Ahmed, for the Crown Dragy Zakavica, for Mr. Starostin
HEARD: December 22, 2022 and June 7, 2023
R.F. GOLDSTEIN J.
REASONS FOR SENTENCE
1. Overview
[1] Alcohol addiction has ruined the life of Iourii Starostin. It wrecked his marriage and family. It took away his children. And then it killed his stepfather. On July 1, 2021, in a fit of alcoholic rage, Mr. Starostin beat Petr Belogorlov to death. On December 22, 2022, he pleaded guilty to manslaughter. He now comes before the court for sentencing.
2. The Facts
(a) Circumstances of the offence
[2] During the morning of July 1, 2021 Mr. Starostin was drinking heavily. After he was taken into custody later that day his blood alcohol concentration was 308.75mg per 100ml of blood.
[3] At the time Mr. Starostin was living with his mother, Antonina Starostin, and his stepfather, Petr Belogorlov. Ms. Starostin was 80 years old. Mr. Belogorlov was 87 years old. Mr. Belogorlov was lying in bed when Mr. Starostin walked into the bedroom. Mr. Belogorlov asked Mr. Starostin if he had been drinking again. Mr. Starostin walked back into the living room, started yelling, and said he was going to kill both his mother and his stepfather. He then went back to the bedroom and started beating Mr. Belogorlov. His mother confronted him and he grabbed her. He then went to the balcony to smoke, and then laid down on a couch in the living room.
[4] Ms. Starostin called her grandsons. She told her grandson Iaroslav Starostin (called “Slav”, both by the family and also in these reasons to distinguish him from Mr. Starostin) that Mr. Starostin had beaten Mr. Belogorlov. She wasn’t sure if he was still alive. Slav went to the apartment. He found Mr. Belogorlov bruised and bleeding but breathing. He called 911. Paramedics and police officers arrived at 3:46 pm. Mr. Belogorlov was transported to hospital but died the next day.
[5] Mr. Starostin was asleep on the couch when the police arrived. The officers attempted to speak to him. He was too intoxicated to speak.
[6] Mr. Belogorlov died of multiple blunt force injuries to his head. Those were caused by Mr. Starostin.
(b) Circumstances of the offender
[7] Probation and parole services completed a pre-sentence report for Mr. Starostin.
[8] Mr. Starostin was born in Moscow in what was then the Soviet Union in 1966. He is currently 57 years old. He had a stable upbringing. He was educated there at an aviation college. He worked as an aviation maintenance engineer at Moscow Airport. He subsequently married and had two children. In 1991 he and his family immigrated to Canada. He passed his qualifying examinations in this country and became an aircraft maintenance engineer here in Toronto. He and his wife divorced in 2002. He has had other relationships since that time. He has variously lived with girlfriends and his children but eventually moved in with his mother and stepfather in their apartment.
[9] Mr. Starostin worked steadily until 2013 when he lost his job. His alcoholism led to chronic absences. He had other jobs, but alcoholism continued to plague him. He kept losing jobs. In 2018 he was in a car accident (which led to an impaired driving conviction) and in 2019 he went on the Ontario Disability Support Program.
[10] On May 8, 2015 Mr. Starostin pleaded guilty to one count of impaired driving before Justice Duncan of the Ontario Court of Justice. He had crashed into another vehicle in a parking lot and then ignored police instructions to pull over. The police arrested him and took two samples of his breath. His blood alcohol levels were 218mg of alcohol per 100ml of blood, and 209mg of alcohol per 100ml of blood. Justice Duncan sentenced him to a fine of $1600 and a 1 year driving prohibition. His lawyer indicated to the court that Mr. Starostin had been attending church, and had not had a drop of alcohol since. Mr. Starostin told the court:
MR. STAROSTIN: It wouldn’t have happen again. I just apologize what’s happen to me at that time. I’m glad nobody got hurt, and it was just my…
THE COURT: Yeah.
MR. STAROSTIN: … bad mistake, you know?
THE COURT: Yes, well, you…
MR. STAROSTIN: And I realize all this.
[11] On January 23, 2020 Mr. Starostin pleaded guilty before Justice Griffith of the Ontario Court of Justice. He was driving when he struck a vehicle. The police arrested him and took two samples of his breath. His blood alcohol levels were 367mg of alcohol per 100ml of blood and 347mg of alcohol per 100ml of blood. His counsel told Justice Griffith that Mr. Starostin had been diagnosed with alcohol use disorder. He was scheduled to have an in-patient program at the Renascent Centre. His counsel stated:
He realizes he has a significant problem with alcohol, and he has started – he’s attended 6 out-patient sessions at the Humber River Hospital.
[12] Justice Griffith imposed a conditional sentence of 8 months and a 3 year driving prohibition.
[13] The probation officer wrote in the original report that he had been unable to contact Mr. Starostin’s son, Konstantin Starostin (I will refer to him as “Konstantin”, again, to differentiate him from Mr. Starostin). The probation officer subsequently interviewed Konstantin. He filed an addendum to the pre-sentence report. Regrettably, Konstantin had many negative things to say about Mr. Starostin. Notably, he is not sympathetic towards his father. He and others have encouraged Mr. Starostin many times to address his alcoholism and provided resources. He and other family members have taken him to appointments and otherwise assisted him. Those efforts have been for naught.
(c) Impact on the victim
[14] Ms. Starostin, Mr. Starostin’s mother, provided a victim impact statement. She stated that her condition is difficult to describe. She could not understand how it could happen. She expressed the sentiment that she had a wonderful husband and a good son and has lost them both. She feels very alone. Mr. Belogorlov is, of course, dead.
3. Legal Parameters
[15] Manslaughter contrary to s. 236 (b) of the Criminal Code carries with it a maximum penalty of life imprisonment.
4. Positions of the Crown and Defense
[16] The Crown’s position is that I should sentence Mr. Starostin to 12-14 years in prison less pre-sentence custody. He beat a defenceless vulnerable elderly person to death with his bare fists. He has promised before to take steps to deal with his alcoholism and has never done so. He has not learned from his previous convictions and has taken no steps to rehabilitate himself.
[17] The defence position is that I should sentence Mr. Starostin to 8 years in prison less pre-sentence custody. The sentencing range for offences of this type is 8-12 years. Mr. Zakavica argues that Mr. Starostin falls at the lower end of the range given the mitigating factors.
5. Cases
[18] The Crown relies on a series of cases involving what the Court of Appeal has determined is “aggravated manslaughter” as well as cases involving the killing of a parent by a child. I will refer to just a few of them.
[19] In R. v. Tahir, 2016 ONCA 136 (dismissing the appeal from R. v. Tahir, [2012] O.J. No. 6449 (Sup.Ct.)) is a case that is very similar to this one. The offender savagely beat the victim with his fists and a blunt object. He was in a fit of rage and highly intoxicated. He had a history of alcoholism. The sentencing judge was skeptical that Mr. Tahir would take advantage of rehabilitative programs in the penitentiary given his history. The victim was attacked in his home; and he was vulnerable and defenceless; the attack was violent and brutal; and there was no provocation. There were some differences as well: Mr. Tahir had a much longer record and tried to cover up his crime. The sentencing judge sentenced him to 12 ½ years, less pre-sentence custody. The Court of Appeal upheld the sentence.
[20] In R. v. Moose, 2002 CarswellOnt 6090, [2002] O.J. No. 5682 (Sup.Ct.) the offender was a 47 year old Indigenous person with a history of substance abuse. He had been unable to control his alcoholism despite many attempts and many treatment opportunities. He was charged with second degree murder but pleaded guilty to manslaughter. He had been drinking homebrew. Without any provocation, he viciously and brutally attacked the victim. The victim was in a wheelchair and completely defenceless. The offender had a criminal record including several convictions involving violence. After applying sentencing principles, and referring to the Gladue principles, the sentencing judge sentenced Mr. Moose to 12 years in jail less pre-sentence custody.
[21] The Crown also relied on R. v. Reed, 2012 ONSC 4247, as an example of a case involving the death of a parent at the hands of a child. Ms. Reed pleaded guilty to the manslaughter of her mother. She had taken methamphetamine. She then went to the home of her mother. They became involved in an argument. Ms. Reed hit her mother with a candle holder and an ornament. She also stabbed her mother 20 times, at least 7 of which were to the head and neck. Ms. Reed used three different knives. It appears that some of the knives broke during the assault and each time Ms. Reed went back to the kitchen for a new, unbroken knife. She was clearly under the influence of some kind of drug. She had a long history of substance abuse, including alcohol, crystal meth, cocaine, marijuana, and opioids. She had been on methadone to treat her substance abuse problem. She had an extensive criminal record, although mostly for fairly petty offences. A psychiatrist found that she was not suffering from a major mental illness. The sentencing judge found that this was an unprovoked and vicious attack on a defenceless person. While the victim was on the floor and unconscious Ms. Reed obtained the third knife and repeatedly stabbed her mother in the head and neck. The sentencing judge sentenced Ms. Reid to 12 years in jail, less pre-sentence custody.
[22] Another parental manslaughter case relied on by the Crown is R. v. Lindsay, [1997] O.J. No. 5317. During a preliminary inquiry the offender changed his plea from not guilty to second degree murder to guilty of manslaughter. The Crown accepted the change. The offender, who had a serious problem with alcohol, was 46 years old. He had an argument with his 71-year-old mother. He suffocated her with a pillow. He turned himself into the police and confessed. He was very remorseful. Without the confession to the police, the crime might never have been discovered. The sentencing judge sentenced him to 10 years, and 11 months in jail.
[23] In R. v. McCormick, [2017] B.C.J. No. 139, 2017 BCSC 145 the accused was in a state of psychosis due to crystal methamphetamine ingestion when he beat his 64-year-old mother to death. He had a criminal record, a severe substance abuse problem, and a history of limited education and limited employment. It was a vicious, prolonged, and severe attack on a defenceless victim. The sentencing judge considered him – in an echo of this case – the author of his own misfortune. He had spurned opportunities to obtain help for his addiction problems. The sentencing judge sentenced him to 12 years in jail, less pre-sentence custody.
[24] Mr. Zakavica relies on cases to establish that Mr. Starostin is at the lower end of the range. He relied on R. v. Clarke. The offender stabbed the victim to death. The victim was 47 years old, emaciated, frail, vulnerable, and likely intoxicated based on his blood alcohol concentration. The accused was 29, fit, and hoping to work as a boxing trainer. He may have consumed some alcohol. The sentencing judge imposed a sentence of 14 years, less pre-sentence custody. The Court of Appeal found that in cases of “aggravated manslaughter” the proper range of sentence is 8-12 years. The Court of Appeal substituted a sentence of 9 years, which included some credit for provocation and credit for pre-sentence custody.
[25] In R. v. Ma, 2010 ONSC 4803, also relied on by Mr. Zakavica, the offender and a co-accused were found guilty of manslaughter after a trial charging him for first degree murder. The offender was part of a group that beat and killed the victim as part of a drug deal gone wrong. He admitted to administering kicks to the victim. He was 18 years old at the time of the assault and a first offender. He expressed remorse and said he did not intend to cause the death of the victim. The sentencing judge sentenced him to 9 ½ years in prison, less pre-sentence custody.
[26] In R. v. Johnson, 2017 ONSC 3512, another case relied on by the defence, the offender was charged with second degree murder but convicted of manslaughter. He had a lengthy criminal record, much of it involving drugs. The offender had viciously assaulted his roommate, rupturing the victim’s spleen. He bled to death in his own abdomen. The victim was an alcoholic and somewhat fragile. He was unable to defend himself. The sentencing judge called the attack cowardly given the difference in size and strength. The victim died violently, painfully, and slowly. The sentencing judge agreed that the proper range for this offence was 8-12 years. He sentenced the offender to 8 years in jail, less pre-sentence custody.
[27] In another case relied on by the defence, R. v. Croft, 2018 ONSC 4405, the offender, Charles, killed his half-brother Wayne with a steak knife. A jury convicted Wayne of manslaughter after a trial charging him with second degree murder. The brothers did not get along. They became involved in a fight. Charles stabbed Wayne. Wayne died. The sentencing judge agreed with the manslaughter verdict. He found that Charles’s actions were for the purpose of self-defence but the amount of force used was unreasonable. The offender was remorseful. He was also influenced by alcohol consumption. The trial judge found that he was an alcoholic. He had a lengthy criminal record including several convictions for crimes of violence. The sentencing judge sentenced him to 6 years in jail less time served.
[28] In R. v. Bengy and Modeste, 2012 ONSC 4463, the two accused were charged in relation to two deaths. Bengy was charged with second degree murder of James and Ramdeen. Modeste was charged with manslaughter of Ramdeen. A series of altercations resulted in fights where the two victims died. The jury found Bengy guilty of second degree murder of Ramdeen, and Modeste guilty of manslaughter of Ramdeen. Modeste participated in the fight and struck Ramdeen, but Bengy stabbed Ramdeen in the heart. Modeste had no criminal record and came from a stable family background. The sentencing judge found that Modeste was at the lower end of the sentencing range. She sentenced Modeste to five years in jail less credit for pre-sentence custody.
[29] I find that Ma, Bengy, MacFarlane, and Croft are not the type of aggravated manslaughter cases that are similar to this one. They reflect either a lower level of participation in a fight or an assault, or self-defence gone wrong. Clarke, also relied on by the defence, is a closer comparator.
[30] After reviewing the cases, I agree with Crown counsel that the appropriate range of sentence for “aggravated manslaughter” is 8-12 years for cases of this type: see the Court of Appeal’s decision R. v. Tahir at para. 2, and R. v. Clarke at para. 8. The cases involving the murder of a parent by a child appear to be rare, but sentences have been imposed at the higher end of the range.
[31] Defence counsel did not disagree with the range of 8-12 years but argued that Mr. Starostin is at the lower end.
[32] Starting points and sentencing ranges are not binding; they are guidelines, not hard and fast rules. Sentencing is an individual process. The key is to impose a sentence that is fit, fair, and principled: R. v. Parranto, 2021 SCC 46 at para. 36.
[33] In this case, there is no reason to depart from the range set by the Court of Appeal. The appropriate range for this type of aggravated manslaughter is 8-12 years. The few cases involving the manslaughter of a parent by a child suggest that those sentences fall at the upper end of the range.
6. Mitigating and Aggravating Factors
[34] Section 718.2 (a) of the Criminal Code requires a sentencing judge to account for aggravating and mitigating factors.
[35] The main aggravating factor is the nature of the offence. Mr. Starostin beat his stepfather to death. He did it using his bare fists. His stepfather was an 87 year old man lying in bed. Mr. Starostin is a large man. Mr. Belogorlov was completely defenceless against the younger and stronger man. The beating was brutal and senseless.
[36] I do not agree with Mr. Zakavica that Mr. Starostin’s alcoholism is a mitigating factor. As Ms. Garcia for the Crown correctly points out, alcohol is the reason that Mr. Starostin was found guilty of manslaughter as opposed to second degree murder.
[37] Unlawful act manslaughter has two requirements: unlawful conduct causing the death of another person, and fault short of an intention to kill. The unlawful conduct must be objectively dangerous in that it is likely to injure another person. The intention required is reasonable foreseeability of the risk of bodily harm: R. v. Creighton, [1993] 3 S.C.R. 3 at paras. 6-12.
[38] By pleading guilty to manslaughter Mr. Starostin accepted that he had engaged in unlawful conduct (the beating) that caused the death of Mr. Belogorlov. By accepting the plea to manslaughter, the Crown accepted that Mr. Starostin did not have the requisite intention for murder due to his state of intoxication: R. v. Salmon, [1972] O.J. No. 933, 10 C.C.C. (2d) 184 (Ont.CA.); R. v. Moose, supra, at para. 39.
[39] Thus, Mr. Starostin’s alcoholism can be seen as neither an aggravating nor a mitigating factor, or as both aggravating and mitigating. In 1863 and 1864, when General (and later President) U.S. Grant was struggling with an alcohol addiction at the height of the American Civil War, alcoholism was widely considered a shameful moral failing. Many people took vows of temperance – including Grant, who simply could not help himself. Fortunately, we have progressed as a society, and it has been widely accepted for many years that alcoholism is a disease or a condition. In the DSM, the Diagnostic and Statistical Manual, alcoholism has been recognized as a disorder since 1952. The DSM has since been updated to reflect changes in our understanding of alcohol use disorder. Mr. Starostin, it appears, has been diagnosed with alcohol use disorder (the name for one of the alcohol-related addictions in the current version of the DSM). Indeed, it appears that Mr. Starostin has suffered from alcohol use disorder for many years. The consequences were terrible for him and his family before the tragic events in this case. The consequences have gone from terrible to utterly devastating. It cannot be an aggravating factor to be diagnosed with alcohol use disorder any more than it can be an aggravating factor to be schizophrenic or to have heart disease.
[40] What Mr. Starostin can be faulted for, however, is his failure to take meaningful steps to deal with his condition. This is so even after two convictions for impaired driving. I understand that difficulty in dealing with the disorder is likely part of the disorder itself (there is no expert evidence on the point, but it seems reasonable to assume that is part of the problem). That said, Mr. Starostin has promised two previous sentencing judges that he would do so. He has obviously promised his family that he would do so. His family has made efforts to help him. According to Konstantin, Mr. Starostin stormed out of at least one therapy session. It is not clear that he completed, or even attended the program at Renascent. Mr. Starostin is, or at least was, a high-functioning individual. He is educated. He was an aircraft maintenance engineer. He achieved Canadian certification despite English not being his first language. He had his own business at one point. I find it aggravating that he has apparently done little or nothing to address his alcoholism. That said, as an aggravating factor it has its limitations. As I have noted, I suspect that part of alcohol use disorder includes a stubborn unwillingness in some sufferers to recognize the problem and deal with it. I take Mr. Starostin’s failure to deal with his alcoholism into account as an aggravating factor, but only in a limited way.
[41] The only real mitigating factor is the guilty plea. By pleading guilty Mr. Starostin accepted responsibility. He also saved the state the resources required to bring him to trial. He also spared members of his family from the agony of testimony and cross-examination.
7. Principles of Sentencing
[42] 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: Criminal Code, s. 718.1.
[43] In my view, the most important sentencing principles here are denunciation, specific deterrence, and rehabilitation.
[44] The role of general deterrence in an offence of this nature is not clear or simple. In R. v. Croft, supra, my colleague D.E. Harris J. pointed out that general deterrence should not be ascendent:
In a case where alcohol impairment, impulsivity, anger and partial self-defence prompted the stab wound which killed Wayne Croft, will dissemination of the message to the public that a 8-9 year sentence will be imposed instead of the 5 years urged by the defence be expected to have any effect in the real world? I do not think in a case of this kind that it would: see the remarks of Justice Bertha Wilson in R. v. Nguyen, [1990] S.C.J. No. 91, [1990] 2 S.C.R. 906 (S.C.C.) at paras. 24-27.
It does a disservice to the criminal law and to the integrity of the sentencing process to perpetuate such a fiction. General deterrence has a part to play in criminal sentencing, but I believe it has only a minor role in a case like this.
[45] On the other hand, in R. v. Green, 2001 BCCA 672, a case referred to in R. v. McCormick, supra, Low J.A. of the British Columbia Court of Appeal stated at para. 19:
In the present case, general deterrence and denunciation are the most important factors in determining the proper sentence. I do not accept the argument that deterrence is not a significant factor because people on cocaine binges are unaware of their conduct and cannot be deterred. In my opinion, deterrence is not aimed at violence per se, but is aimed at the highly irresponsible conduct that leads to the violence. Those who might emulate the lifestyle of the appellant that led to the killings must know that serious crimes done while under the influence of self-administered, mind-altering substances will attract substantial terms of imprisonment: the more horrific the circumstances of the crime, the higher the sentence.
[46] Several authorities, including appellate authorities, agree with the sentiment expressed in Green: see R. v. Roberts, 2020 ABCA 434 at para. 47. Watt J. of this court (as he then was) considered the principle in Green in R. v. Norman, 2005 CarswellOnt 1491 at paras. 85-86 but did not express a definite view.
[47] In R. v. Badhesa, 2019 BCCA 70, the British Columbia Court of Appeal endorsed Green but noted at paras. 39-40 that where a pre-existing mental illness plays a role, that may reduce an offender’s moral culpability:
Intoxication by alcohol or drugs often figures prominently in manslaughter cases. While relevant to moral culpability, self-induced intoxication that leads to violence is typically the product of intentional risk-taking, which conduct is itself dangerous, irresponsible and blameworthy. In such circumstances, the offender is held fully accountable for his or her condition and principles of deterrence and denunciation are paramount in the determination of a fit sentence. This is because the offending conduct encroaches on our society's basic code of values and warrants condemnation and punishment: Green at paras. 16, 19, 23.
However, an offender's volitional and decision-making capacity in connection with self-induced intoxication and related violence may stem, at least in part, from mental illness or other cognitive disability. Depending on the circumstances, both the mental illness and related self-induced intoxication may reduce the offender's moral culpability.
[48] I agree with Low J.A. that general deterrence can play a role in sentencing an offender when it is reckless consumption of alcohol or other substances that leads to violent behaviour. It plays a role in the sense that those who are given repeated opportunities to deal with their substance abuse – and have no underlying major mental illness – but fail to do so, must understand that their reckless behaviour might well result in a very severe penitentiary sentence. I agree with D.E. Harris J. – whose knowledge and skill in the field of criminal law are well known – that general deterrence cannot overwhelm the sentencing process, but I do respectfully disagree that it has such a limited role to play.
[49] I turn to denunciation. Any crime involving death requires significant denunciation. As well, given Mr. Starostin’s criminal record – both offenses involving alcohol – a measure of specific deterrence is also required. I find that rehabilitation is also not beyond the question – Mr. Starostin will be a man in his mid-60’s when he is released from custody. He has a history of working in a technical field. It is not out of the question that he could recover and find further work. That, of course, will be up to him.
8. Pre-Sentence Custody
[50] The police arrested Mr. Starostin on July 1, 2021. He has been in custody ever since. As of today, June 20, 2023, he has been in custody for 720 days, or 23 months and 20 days. He is entitled to credit at the rate of 1.5:1, which works out to 1080 days, or exactly 36 months: Criminal Code, s. 719(3.1); R. v. Summers, 2014 SCC 26.
[51] From July 1, 2021, to July 17, 2022, or for 381 days, Mr. Starostin was at the Toronto South Detention Centre. From July 17, 2022, until today, or for 339 days, he was at the Toronto East Detention Centre.
[52] While at the Toronto South, Mr. Starostin was subject to lockdowns on 231 of those days. Most of these were partial lockdowns; 81 were for a few hours or part of the day; 42 of those days the lockdowns were after 6 pm; on 1 day the lockdown was after 3 pm; on 35 days the lockdowns were for 2 hours; for 1 day there was a four-hour lockdown. There were some full lockdowns as well. Most of these were due to staff shortages, which is entirely unacceptable – as many of the judges of this court (including me) and the Ontario Court of Justice who routinely deal with sentencing matters have repeatedly pointed out.
[53] While at the Toronto East, Mr. Starostin was subject to far fewer lockdowns. Nonetheless, when I consider the combined effects of lockdown and the COVID pandemic, I find that harsh conditions of custody are a mitigating factor: R. v. Marshall, 2016 ONCA 754; R. v. Duncan, 2021 ONCA 344.
9. Sentence Imposed
[54] In my view, this case has much in common with Tahir, supra. It is at the higher end of the range for manslaughter. Indeed, the brutality and violence of the assault on a vulnerable and helpless victim in his own home – a home shared with Mr. Starostin – calls for a significant denunciatory sentence. This case also has many factors in common with Reed, supra, which involved the murder of a parent by a child.
[55] The aggravating factors are significant, and the mitigating factors – of which the guilty plea is the chief one – are few. I agree with the Crown that the appropriate range is 8-12 years, but several of the cases relied on by the Crown involved a full trial where an offender was convicted. An important difference in this case is the plea of guilty. When I weigh the aggravating and mitigating factors, as well as the principles of sentencing, I find that a sentence of 11 years is appropriate. In sentencing Mr. Starostin to 11 years, I specifically take into account the mitigating factor of a guilty plea. I also specifically take into account the mitigating factor of multiple lockdowns rather than apply a mathematical formula: R. v. Marshall, supra; R. v. Duncan, supra.
[56] As I have already noted, Mr. Starostin is credited with three years of pre-sentence custody based on s. 719(3.1) of the Criminal Code. He will therefore serve a further 8 years.
[57] There will be a DNA order and an order pursuant to s. 109 of the Criminal Code for life.