SUPREME COURT OF Nova Scotia
Citation: R v Rogers, 2023 NSSC 301
Date: 20230921
Docket: 510693
Registry: Yarmouth
Between:
His Majesty the King
Plaintiff
v.
Robert Charles Rogers
Defendant
Restriction on Publication: Section 539 (1) Criminal Code
Judge: |
The Honourable Justice Muise |
Heard: |
March 16, 2023, in Yarmouth, Nova Scotia |
Counsel: |
Robert Morrison and Saara Wilson, for the Plaintiff William Ferguson and Chelsea Cottreau for the Plaintiff at sentencing Nicholaus Fitch and Scott Brownell for the Defendant |
539(1) Order restricting publication of evidence taken at preliminary inquiry
Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
By the Court:
SENTENCING FOLLOWING CONVICTION FOR SECOND DEGREE MURDER AND INDIGNITY TO HUMAN REMAINS
INTRODUCTION
[1] Robert Rogers was convicted by a jury of having committed second degree murder on Colton Cook and having indecently interfered with his remains by dismemberment.
[2] Today he is being sentenced.
[3] I am rendering this decision orally, should it be reduced to writing, I reserve the right to edit it for grammar, structure, complete citations, organization and ease of reading, without changing the reasoning or the result.
[4] The maximum sentence for indignity to human remains prosecuted by indictment, as in this case, is 5 years’ imprisonment.
[5] Pursuant to s. 235 and s. 745 of the Criminal Code, the sentence for second degree murder is automatically life imprisonment without eligibility for parole for at least 10 years. However, pursuant to s. 745.4, the Court may extend parole ineligibility up to a maximum of 25 years.
[6] In assessing what the period of parole ineligibility should be, the Court has to look at many factors, including the personal circumstances of the offender. It does so knowing the tremendous loss and suffering Colton Cook’s family and friends have experienced as a result of his senseless death. If they feel that nothing short of the maximum parole ineligibility is appropriate, that is understandable. Unfortunately, even imposing the maximum parole ineligibility will not reduce that loss and suffering. The Court must consider all the relevant factors and principles and make a determination that is fit in the circumstances as a whole, including the impact the offence had on them.
[7] It is also important to remember that eligibility for parole does not mean release on parole. An offender sentenced to life imprisonment will remain in prison unless and until the National Parole Board determines that it is safe and appropriate to conditionally release them, or they are granted clemency. Also, even if released on parole, that parole may be revoked.
PAROLE INELIGIBILITY
[8] The Crown recommends a period of parole ineligibility in the 19 to 20 year range based on “the seriousness of Mr. Rogers’ record, the lack of any pro-social influences, the absence of any mitigating circumstances and the extremely aggravating circumstances of the offence itself”.
[9] The Defence submits 12 years’ parole ineligibility is appropriate based on: it being unclear whether the jury found he did more than the initial gunshot; Mr. Rogers expressing remorse in his statement to the police and evidence at trial; rehabilitation being viable by dealing with addiction and alcohol issues, since severe intoxication led to the offence; and the parity principle.
[10] In R v. Sylliboy, 2022 NSSC 213, Justice Hunt, at paragraphs 20 to 23, succinctly outlined the proper approach to determining parole ineligibility as follows:
[20] To recap, the starting point is a 10-year period of parole ineligibility. To consider substituting a different number of years, the Court must consider the factors in section 745.4 (character of the offender; nature of the offence; circumstances surrounding the commission of the offence; and any jury recommendation made pursuant to section 745.2, …).
[21] The Court must also weigh sections 718 - 718.2 of the Code. Having done so the judge will be in a position to assess where, within the range of acceptable periods of parole ineligibility, the specific offender should be placed, that is: in the 10 - 15 year range; the 15 - 20 year range; or the 20 - 25 year range.
[22] I also want to note the following. Although sections 718 - 718.2 of the Code are relevant to this process (see Hawkins, supra, para 47), "specific deterrence" has no place in this decision (Hawkins, supra, para 39-41). Further "denunciation and deterrence" are not of "paramount significance" in cases of second-degree murder because the sentence provides for a minimum period of parole ineligibility (see Hawkins, supra, para 42).
[23] There is still a role for considering denunciation and to promote general deterrence. Denunciation can be considered under the criterion of "nature of the offence" and concerns over possible future dangerousness of the offender under the criterion of "character of the offender" within those section 745.4 factors (see Hawkins, supra. para 16).
[11] Sections 718 to 718.2 of the Criminal Code state:
Purpose
718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
Fundamental principle
718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
Other sentencing principles
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, … ;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, … .
[12] Chipman, J.A., in R v. Doyle (1991), 108 NSR(2d) 1, at page 11, stated:
Comparisons with other cases is a difficult exercise. Attempts to seek similarities with or differences from other murders committed by other people can be very frustrating and counter productive. We are not dealing with an exercise of reviewing "comparables" such as is done in a property appraisal. In exercising the discretion under s. 744 of the Code, other cases are no more than a rough guide for the sentencing judge in identifying the types of aggravating or mitigating circumstances that other courts have relied on as relevant in applying the guidelines.
[13] The principal of parity still applies and the Court must strive for consistency. However, as this passage illustrates, parity is challenging to apply. That is because there are endless combinations of circumstances surrounding the same most serious offence of second-degree murder. In addition, sentencing remains an individualized process. That is a further reason why the comparison cases only provide a rough guide.
[14] The Court in R. v. Hawkins, 2011 NSCA 7, at paragraph 67, cited with approval the comments in R v. Nash, 2009 NBCA 7, regarding the three parole eligibility timeframes sentencing judges generally work with as starting points. Sentencing judges generally determine the appropriate timeframe, then determines where, within that timeframe, a particular offender fits.
[15] The Court in Nash described the three timeframes as follows:
(1) 10 to 15 years for “those offenders for whom the prospects of rehabilitation appear good and little would be served by extending the period of parole ineligibility other than to further the sentencing objectives of denunciation and retribution”.
(2) 15 to 20 years for “those who fall somewhere in between the first and third”.
(3) 20 to 25 years for the “worst of offenders” in the “worst of cases”.
[16] Nash, at paragraph 56, further explained what is meant by the “worst offenders for the worst offences” as follows:
These are the offenders who commit brutal murders and who have a criminal record involving brutal or violent crimes. Typically, cases in which the period of parole ineligibility has been fixed at 20 to 25 years involve offenders with criminal records involving violence and, hence, are considered to be a threat to public safety.
[17] R v. Hawkins, at paragraph 69, also cited with approval the following comments from R. v. Lane, 2008 ONCA 841:
Sentences of ineligibility for parole for 20 years are reserved for offenders who have an established pattern of violence in their lives from which it can be reasonably inferred that they present a high risk to re‑offend in a violent manner.
[18] In the circumstances of the case at hand, it would not be fit and appropriate to impose parole ineligibility in excess of that recommended by the Crown. The real parole ineligibility issue is whether the proper timeframe is the first or second one, and where this case fits in that timeframe.
CIRCUMSTANCES AND CHARACTER OF THE OFFENDER
[19] Mr. Rogers refused to participate in the interview process for the preparation of a pre-sentence report. Therefore, none was prepared, and I am left to piece together his personal circumstances and character from the representations of counsel and the evidence at trial, including his statement to Sgt. Vardy.
[20] He is now almost 60 years of age. At the time of the offence, he was 57 years of age.
[21] He has, for the most part, not been a contributing member of society for at least two decades, following his motorcycle accident in 2000. His ability to do so is compromised by his injuries and addictions.
[22] Prior to his arrest his income was from government benefits and the marijuana he grew and sold illegally.
[23] He did not engage in any prosocial activities or organizations. He associated with persons involved, or having had significant involvement, in criminal activity.
[24] He was in the hospital for approximately a month recovering from a car accident until shortly before the murder. Otherwise, he spent most of his days consuming alcohol and marijuana, in combination with the medications he was prescribed, such as gabapentin. He is such a bad alcoholic and has such a substance abuse problem that he started consuming heavily immediately upon his release from hospital.
[25] His life centred around acquiring alcohol as soon as he had access to money, and consuming it, along with the other drugs. There was evidence that his alcohol consumption was worse when he was in receipt of greater government moneys during Covid.
[26] He did attend addiction services while he was in the hospital for that month. It obviously did not lead to any period of sobriety beyond that forced upon him by his stay in the hospital.
[27] He previously attended substance abuse programming while incarcerated. That did not appear to make much difference.
[28] He says he plans to attend more programming in prison when it opens up. Otherwise, there is no indication he has any real desire to obtain help for alcoholism and substance abuse and remain substance free.
[29] In his statement to Sgt.Vardy he seemed almost proud of his alcohol consumption preferences and habits.
[30] As noted by the Defence, Mr. Rogers was heavily intoxicated during the offence. I also agree with the Defence that an offender whose offending behaviour is fueled by consumption of substance can show rehabilitative potential associated with addressing their substance abuse issues. However, Mr. Rogers shows no signs of wanting or trying to address his substance abuse issues.
[31] He is already almost 60 and has had many years of warnings that he needed to address those issues. He has multiple drinking and driving offences on his record dating back to 1998. He was sentenced for a refusal in March 2019 and three drinking and driving offences on May 11, 2021, while on conditions not to consume alcohol, and while disqualified from driving. Thus, the offences were in relatively close proximity to this murder. One drinking and driving offence was from a few days after the murder. The other two were from about 3 months and 1 year, respectively, before the murder.
[32] Yet, there is no indication of any move, other than while confined in prison or a hospital, to address his alcoholism. There does not appear to be any realistic chance of him achieving or maintaining sobriety other than when it is forced upon him.
[33] His refusal to be interviewed for the preparation of the presentence report indicates he does not even want to talk about his issues, let alone address them.
[34] So, I disagree with the Defence submission that the relationship between the murder and Mr. Rogers’ intoxication indicates any realistic rehabilitation potential.
[35] The Defence also submits Mr. Rogers expressed remorse and an acceptance of responsibility in his statement to Sgt Vardy and in his evidence at trial. He did in his Statement to Sgt. Vardy. However, at trial, he testified that he had thought he had been responsible for killing Colton Cook by shooting him, but after hearing the opinion of Dr. Bowes, was of the view that he was not responsible for Mr. Cook’s death. He cannot be expressing fully genuine remorse for something he says he did not do.
[36] However, since he pled not guilty, the absence of remorse is not an aggravating feature.
[37] In his video-statement to Wayne Crawford, while being interviewed by Sgt Vardy, he said he left the note at Keith Siscoe Sr’s house to give the family closure. However, the evidence of Keith Siscoe Sr and Jr, at trial, showed they had to convince him to write it and, though he agreed to write it, he was not going to turn himself in to the police. In fact, they said he bragged about outsmarting the police and being released from their custody when arrested for other matters following the murder. Then, in the letter he wrote Keith Siscoe Sr from jail he complained about Keith Siscoe Jr telling the police what had happened, and promised to testify favourably in Court for Keith Siscoe Jr if they gave him the $500 he was requesting, but threatened to sink him if they did not. These are not the actions of someone who has true remorse and wants to give the family closure.
[38] There is no indication he has any family or other support. Though he has two children and three grandchildren, there is no indication they are supportive of him. He told Sgt Vardy that even he and his mother do not get along that well.
[39] There was some general discussion between him and Sgt. Vardy regarding him having it rough growing up.
[40] Consequently, there are few mitigating features in his personal circumstances and character, apart from half-hearted expressions of remorse, general comments about him having it rough growing up, and any impact his intoxication may have had on his level of moral blameworthiness.
[41] He has a lengthy criminal record dating back to 1992. I agree with the Defence that it is largely comprised of drinking and driving offences.
[42] However, it is important to highlight that on January 9, 2014, he received a net sentence of 38 months’ imprisonment for an attempted murder, after 40 months’ credit for remand, for an actual sentence of 78 months. That is concerningly close, in time and nature, to him having committed an actual murder. The circumstances are also concerningly comparable to those in the case at hand. He was in a dispute with his father while drinking and stabbed his father in the neck with a knife.
[43] He also has a common assault, but that is somewhat dated. He was sentenced for that in 2002.
[44] Even more dated, but still relevant, is a 1992 sentencing for break enter and commit. The offence occurred in November 1991. He entered a residence and fired shots. There is no indication whether or not he believed the house to be empty. However, even he did, it shows wanton disregard for the life and safety of anyone who might be in the residence without his knowledge.
[45] In that way, it bears some relationship to the firing of the shotgun, inside a residence, in the case at hand.
[46] The attempt murder and the break, enter and commit particularly show that he has long been inclined to rashly and senselessly engage in very violent behaviour that puts the lives of others in great jeopardy.
[47] That raises a significant concern over his continued dangerousness. He does not appear to have learned his lesson, even though he has had since 1992 to do so.
[48] His criminal record is reflected in the following sentencings, reproduced in a table at page 3 of the Crown brief:
• June 24, 1992, he was sentenced for a break, enter and commit and escaping lawful custody, to 2 years and 6 months for the B&E and 9 months consecutive for the escaping lawful custody.
• On March 16, 1998, he was sentenced for a S. 5(2) CDSA possession for the purpose of trafficking offence, an impaired driving offence and a theft. He received two years concurrent on each.
• On February 19, 2002, he was sentenced for an assault and being unlawfully in a dwelling house. He received 2 months consecutive on each for a total of 4 months.
• On December 18, 2007, he was sentenced for an “over 80” to a $1200 fine.
• Again, on August 24, 2009, he was sentenced for an “over 80” to a $1200 fine.
• February 9, 2014, he was sentenced to that net sentence of 38 months consecutive for the attempted murder.
• March 12, 2019, he was sentenced to a fine and a three-year driving prohibition for a refusal offence.
• May 11, 2021, he was sentenced for a refusal to 6 months consecutive, for a failure to comply to 1 month consecutive, for a driving while disqualified to 5 months consecutive, for 2 “over 80’s” to 5 months consecutive on each, and for another driving while disqualified to 3 months consecutive.
THE NATURE OF THE OFFENCE
[49] As agreed by both parties, murder is the most serious offence in the Criminal Code.
[50] The Crown submits that the offence in the case at hand was much closer to 1st degree murder than to manslaughter because Mr. Rogers shot Mr. Cook in the head area then repeatedly slashed and hacked him with a machete. I agree with that assessment. It is further supported by the fact that there was no indication of any provocation and Mr. Rogers went to another area of the house to get the gun before returning to shoot Mr. Cook.
[51] The Defence argues that the jury may have accepted Mr. Rogers’ evidence that his only role was the initial gunshot. I disagree with the Defence on that point. Dr. Bowes’ clear and confident evidence was that the gunshot would not likely have been fatal, and that there is only a possibility it may have contributed to death by contributing to bleeding or because a pellet may have entered the brain. He could not tell because the brain was too decomposed and there was too much mechanical disruption. There was evidence of the limited penetration of the pellets into Mr. Cook’s skin and the wall. There were extreme amounts of blood spatter stains, on the furniture, multiple walls and the ceiling. They were in varying directionalities and produced from blood being released from an object in motion. There is no realistic way they would have been produced by the manner in which Keith Siscoe Jr. described Wayne Crawford stabbing Mr. Cook. That would only have produced stains in the immediate area of the stabbing and possibly on the ceiling above, not on the far away walls, and not in the varying directionalities observed on the walls. It is clear that Mr. Rogers jumped on top of Mr. Cook, went ballistic, and wildly hacked or slashed, and stabbed, at him with the machete, including by pulling his head back and hacking at the neck. The neck area wounds described by Dr. Bowes clearly give credence to that final aspect of Keith Siscoe Jr’s evidence, as well.
[52] I agree with the Defence that he is, nevertheless, being sentenced for 2nd degree murder. However, the closeness of the act to 1st degree murder has been considered in assessing parole ineligibility in a number of cases, for example in R. v. Fairclough, 2003 CarswellOnt 9115 (CA), cited at paragraph 76 of R v. Hawkins, supra.
THE CIRCUMSTANCES SURROUNDING THE COMMISSION OF THE OFFENCE
[53] The Crown described the offence as “a brutal attack on an unsuspecting victim for no discernable reason”. That is an apt summary.
[54] In terms of the circumstances immediately preceding the murder the following was clearly established on the evidence.
[55] Though initially uninvited, as submitted by the Defence, Mr. Cook arrived at the residence looking for a third party and was invited in. He was relatively unknown to Mr. Rogers. He gave the rest of his first bottle of vodka to Mr. Crawford, who shared it with Mr. Rogers. He started drinking from his second bottle. They had drinks together. At least Mr. Rogers, Mr. Crawford and Mr. Siscoe, who were all staying at the residence that night, were highly intoxicated.
[56] Mr. Cook was not staying there. That is a feature distinguishing the case at hand from those cases in which the victim was killed in the expected security of their own home, some while sleeping. However, the circumstances in which Mr. Cook was invited in, shared drinks with the occupants, and was engaging in friendly activity and conversation, would lull him into a similar sense of security. He would not have been on guard and ready to flee or defend himself.
[57] Mr. Cook engaged in friendly conversation and arm-wrestling with Keith Siscoe Jr. After Mr. Siscoe fell asleep at the table, he was standing beside Mr. Crawford, in the living room, talking to him. There is no indication it was in any way but continued friendliness. Mr. Rogers left the living room area, where he had been cutting weed and went to the kitchen. There he retrieved the shotgun which he used to start the attack on Mr. Cook. He was subject to a firearms prohibition at the time.
[58] Immediately after, he ran past Mr. Siscoe with a machete and attacked Mr. Cook with it as described. Therefore, he must have retrieved the machete from somewhere outside the living room as well. The presence of the machete sheath in his bedroom suggests it was from there. So, he had to make deliberate efforts to procure a gun and machete for the attack. It was not a situation where he grabbed something next to him in the heat of the moment. In fact, there was no evidence realistically supporting a heat-of-the-moment catalyst.
[59] Mr. Cook had received no warning that his presence was unwanted or of any issue. He was just shot, hacked, slashed, and stabbed out of the blue. Mr. Rogers viciously attacked Mr. Cook in the midst of a conversation with Mr. Crawford, with a gun and machete. The locations of the gunshot wound, being in the back and face, show Mr. Cook was facing at least slightly away from Mr. Rogers. As Mr. Siscoe Jr. testified, Mr. Cook did not have a chance.
[60] Since Mr. Crawford was adjacent to Mr. Cook, Mr. Rogers also put Mr. Crawford in danger by shooting Mr. Cook. Yet, he was unapologetic about that. Instead, he bragged about being a good shot because he had not hit Mr. Crawford.
[61] There were confluent wounds in the chest of Mr. Cook, which Dr. Bowes said could have involved 35 or more stabs, as well as a 9 cm long obliquely oriented sharp force injury to the chest above the right nipple, and, just below it, a 2 cm long sharp force injury Those could all have been caused by Mr. Crawford. All the remaining wounds were clearly caused by Mr. Rogers.
[62] Those remaining wounds were clearly established in the evidence of Dr. Bowes which included the following.
• His post-mortem examination of Colton Cook revealed a very large number of sharp force injuries. Some were 2 or 3 cm long or less, others as long as 8 cm, others involving overlapping wounds or involving so many wounds converging on one focal point that it makes them difficult to count. There was a massive, ragged area of profound mechanical disruption centered on the right face and occupying the entire right side of the head, composed of innumerable sharp force injuries that have become confluent. They have also profoundly mechanically disrupted the underlying skeleton and skull, leaving tool marks. There was a group of three sharp force injuries in the right posterior neck and occipital scalp, measuring 5 to 8 centimetres in length, as well as multiple other sharp force injuries in the front and back of the neck. There were multiple gaping sharp force injuries on the right upper arm and shoulder, one 5 cm long, another 8 cm long, and some others overlapping to form an 11 cm long wound. There was a 5 cm sharp force injury of the right elbow and a fracture of the elbow. There was a large, ragged complex sharp force injury to the right forearm suggesting a confluence of multiple sharp force injuries. There was a gaping 4.5 cm long sharp force injury to the right forearm and a massive, ragged sharp force injury to the right wrist, both associated with a fracture of the ulna. There were also multiple sharp force injuries to the right hand. There was a massive, ragged, complex sharp force injury to the left wrist probably representing the confluence of multiple overlapping sharp force injuries. There were multiple other sharp force injuries to the left arm and hand. There were sharp force injuries to the left knee and lower leg.
[63] The fact that Mr. Rogers committed such a senseless and horrific offence, for no apparent reason, rings alarm bells regarding the risk of future dangerousness. When such acts are preceded by tense or confrontational acts or circumstances, a potential victim has at least some chance to ready and protect themselves. When they happen as they did here, without any foretelling, and as an ambush from within what appears to be a safe sanctum, it is especially disturbing and dangerous.
[64] The post-murder efforts to dispose of the body are aggravating as well. It was clear, on the evidence of Keith Siscoe Jr., that it was Mr. Rogers who directed what they would do with the body. They dumped it in the woods and left it to decompose. That prevented Mr. Cook’s family from being able to say goodbye as they would have wanted.
[65] As noted by the Crown, the dismemberment is especially aggravating.
[66] There is a question regarding whether Mr. Rogers cut one of Mr. Cook’s leg off, and almost cut the other one off, with a knife or a chainsaw.
• The evidence of Dr. Bowes clearly established the following. The leg had been severed after death. The cut margin of the skin of the thigh had a ragged appearance, but still had features of a sharp force injury. It had a sawtooth morphology and the skin was stained by a black greasy substance. There were tool marks on the femur.
• The evidence of Jeff Moy clearly established the following. The DNA profile from the four samples taken from the blade or chain of the chainsaw matched that of Colton Cook. The DNA profile of the sample taken from the crank pull knob of the chainsaw matched that of Mr. Rogers, and the major component of the DNA profile of the sample taken from the trigger of the chainsaw matched that of Mr. Rogers. Both of those samples were blood.
• There was also clear evidence that Mr. Rogers had a cut on his right index finger during the events.
• In addition, Mr. Rogers was evasive about the chainsaw while testifying. He tried to pretend he only discovered during his cross-examination that the chainsaw being referred to was a Jonsared, having previously thought they were referring to a Stihl. However, he, himself, had told Sgt Vardy that the chainsaw he used to cut wood at the house, where the murder occurred, was a Jonsared.
[67] The only reasonable inference to be drawn from these points is that Mr. Rogers cut Mr. Cook’s leg off with a chainsaw, not a knife. That adds a level of brutality. Either way, it was a completely unnecessary step which added to the torture experienced by Mr. Cook’s family.
[68] Then, by his own admission, he threw the severed leg in the woods before burning Mr. Cook’s truck.
[69] His handling of Mr. Cook’s remains was barbaric, sadistic, and showed a tremendous lack of concern for Mr. Cook’s family.
[70] As noted by the Crown, dumping the body in the woods to be found by a stranger also showed a lack of concern for how that stranger might be impacted by such a gruesome discovery.
THE JURY RECOMMENDATIONS
[71] Half of the jurors made no parole ineligibility recommendation. Three recommended 15 years. One recommended 20 years. Two recommended 25 years. In considering these recommendations, I must bear in mind that the jury was not aware of Mr. Rogers’ record for violence. In particular, they were not aware that he had been sentenced for attempted murder in January 2014. That knowledge would have tended to increase their recommendations.
IMPACT ON THE VICTIMS
[72] The impact on the victims is relevant in the sentencing process.
[73] The impacts in the case at hand were to be expected, but they are still an aggravating feature of this case. They are revealed in the impact statements filed by Colton Cook’s sister, Ashley Cook, and his mother, Stacey Cook, who also read hers. They include deep-seated, debilitating, and far-reaching effects, which are expected to be long-lasting. They also include reference to an impact on the community at large.
[74] Ashley Cook described the impacts the offences committed by all three co-accused had on her and her child. They included the following types of impacts:
• Causing her to now have severe anxiety and depression, looping thoughts, difficulty sleeping, panic attacks, and bouts of crying, which she has to try to manage so she can look after her daughter.
• These have manifested in physical symptoms such as: difficulty keeping food down; tension headaches; stress rashes; and heart palpitations.
• They now require her to take medication and undergo counselling.
• The costs associated with medical appointments and prescription medications have drained their financial resources, making it such that she will not likely be able to afford to travel home from Australia to see her family.
• She has had to grieve on her own without the support of her family in Nova Scotia.
• In addition to losing her brother, she has lost her sense of security, feeling unsafe no matter where she is, and constantly waking up to check on her daughter and to ensure the doors are locked.
• Her daughter will never be able to meet her uncle.
[75] Stacey Cook described the impacts on her, and the local community, of what Mr. Rogers did to Colton Cook. They included the following:
• She is left thinking of her son all the time.
• Before the trial, she thought her son had died quickly, without suffering. During the trial she learned of the brutality and suffering he experienced in his final moments. She learned that he cried out after Mr. Rogers shot him. Now, almost every night, she hears him cry out, and relives his suffering, in her nightmares. She knows she will continue doing so.
• She feels what Mr. Rogers did to her son.
• She also pictures Colton holding his arms up to protect himself and ending up crumpled on the floor, losing air and dying, while surrounded by hate and evil.
• She sees that Mr. Rogers did not care about the life or pain of her son, who was a good and likable person, with a good heart.
• The pain and suffering he caused to her son has changed her. Part of her now wants revenge. She was not brought up to feel like that and does not like it about herself. She recognizes it is a horrible way to think. It is Mr. Rogers’ actions that have brought her to think that way.
• She feels like wanting to die so that she can be with Colton again.
• However, she can’t. So, instead she wants someone to feel the pain that her son felt.
• Mr. Rogers has robbed her of her joy. She now has guilt over wanting to feel joy because she does not want her son to think she can move on and be okay without him, and she is not okay.
• She is not as a loving as she used to be.
• She gets angry quickly. She becomes irritated with people for simple things that would never bother her before.
• She thinks about the things in life that her son will miss out on.
• She would have wanted to have been able to hold him close, even while lifeless, and run her fingers through his hair. Because of the way his body was dismembered and dumped, she could not.
• Knowing the way Colton was mutilated, hacked and dumped, in the community where he was raised, has changed her and the community forever. They no longer feel safe. Some, who never used to lock the doors, are now doing so because of Mr. Rogers’ actions.
AGGRAVATING AND MITIGATING CIRCUMSTANCES IN THE CASE AT HAND
Aggravating Circumstances
[76] The case at hand involves the following aggravating circumstances relevant to parole ineligibility:
• A firearm and a sharp-edged weapon were used in the commission of the offence.
• He was subject to a firearms prohibition at the time.
• The murder was committed in an egregiously brutal fashion.
• The victim was rendered vulnerable by the fact that Mr. Rogers shot him and attacked him with the machete before he had any indication or sign of danger or that he was not welcome there. Effectively, he was ambushed from within a place that would have appeared safe to him.
• Mr. Rogers also showed blatant disregard for the safety of others besides Mr. Cook by discharging the firearm towards him within a dwelling, while he was standing next to Mr. Crawford.
• Though Mr. Rogers was the initiator and primary assailant, he was joined by Mr. Crawford in attacking what, at that point, was a defenseless victim.
• It was a random and senseless murder without any provocation.
• Mr. Rogers barbarically dismembered Mr. Cook’s leg with a chainsaw and ultimately threw it in the woods.
• He dumped the body in the woods to get rid of the evidence. That rendered Colton Cook’s already disfigured corpse even more gruesome, robbing his family of the ability to properly say goodbye.
• This was egregious after-the-fact conduct.
• He also disposed of other evidence by burning.
• He lied to the police regarding Keith Siscoe Jr’s presence and involvement, and regarding Mr. Crawford’s involvement, thereby obstructing their investigation.
• The offence had debilitating impacts on Mr. Cook’s family which are expected to last a very long time.
• He has a lengthy criminal record with two offences of violence, including a relatively recent attempted murder conviction.
Mitigating Circumstances
The case at hand involves the following mitigating circumstances:
• To the extent that his high level of intoxication may have reduced his level of moral culpability that is somewhat of a mitigating factor. However, the fact of intoxication itself is not a mitigating factor.
• He did ultimately express remorse and empathy to Sgt. Vardy. However, the mitigating effect of that was significantly reduced by his evidence at trial that he only shot Mr. Cook and he was not responsible for Mr. Cook’s death because Dr. Bowes testified the shot did not cause the death. That raises the question of how there can be fully genuine remorse without acceptance of responsibility.
• There was some general reference to a difficult upbringing.
Proportionality and Parity
[77] Applying the principle of parity helps inform and guide the application of the principle of proportionality, which is a fundamental principle of sentencing. Looking at comparison cases can help arrive at a proportionate determination, even if, as noted in R v. Doyle, they only serve as a rough guide in determining parole ineligibility.
[78] The only case commented upon as a comparison case, by either party, is R v. Oliver, 2005 CanLII 3582 (ONCA), presented by the Defence.
[79] In R v. Oliver, the Court of Appeal upheld the 12 years’ parole ineligibility imposed by the trial judge. Mr. Oliver and a co-accused had killed a smallish 44-year-old homeless man, Mr. Pace, who had been loitering outside of the donut shop where their girlfriends worked. The two co-accused, and Mr. Oliver’s girlfriend, had gone to Mr. Oliver’s apartment. They received a call from the other girlfriend, who was still working at the donut shop. She said she was nervous because Mr. Pace had remained in the donut shop for a long time and she was concerned that he had a weapon. Both co-accused returned to the donut shop. Mr. pace left shortly after. A short while later, the two co-accused left the donut shop and caught up with Mr. Pace. They exchanged words. Mr. Pace made a comment about the breasts of the co-accused’s girlfriend. The verbal exchange escalated to a physical confrontation. Shortly after that, Mr. Pace was found dead in a pedestrian tunnel near the donut shop. His face was disfigured and he was covered in blood. Post-mortem examination disclosed that he had received five or six blows to his head and neck area, one of which fractured his larynx and the other which resulted in a subdural hemorrhage that caused his death.
[80] Mr. Oliver was only 31 years of age. He had made attempts to come to grips with his alcoholism. He had an extensive criminal record. It included several assault related convictions. However, none of them attracted a sentence exceeding seven months. The victim was considered to be particularly vulnerable. The trial judge was of the view that the assault was unprovoked. He noted that there was an absence of remorse. He considered the fact that the jury had recommended the minimum 10-year period of parole ineligibility.
[81] Unlike Mr. Oliver, who was still a youthful offender, Mr. Rogers is now almost 60 years of age. At the time of the offence, he was 57. Unlike Mr. Oliver, there is no evidence Mr. Rogers has made any real attempts to come to grips with his alcoholism. Though the actions of the deceased in R v. Oliver did not constitute provocation in law, they did, at least, provide some explanation for why Mr. Oliver beat Mr. Pace. In the case at hand, there is no real explanation other than Mr. Rogers acting on a random, senseless and sadistic urge. Mr. Oliver did not use a weapon. Mr. Rogers used as gun and a machete. Only 5 or 6 blows were applied to Mr. Pace. Based on Dr. Bowes’s evidence, after the gunshot, Mr. Roger’s would have hacked, slashed or stabbed Mr. Cook with the machete at least as many times as Mr. Crawford stabbed him, which could have been 35 or more times. The circumstances in Oliver are closer to manslaughter than to 1st degree murder. In the case at hand, the circumstances are closer to 1st degree murder than to manslaughter. Although Mr. Oliver did nothing to help Mr. Pace get medical attention, he did not dismember the body and dump it in the woods to rot and be found partially decomposed. Mr. Rogers did. Plus, he cut off Mr. Cook’s leg in a highly barabaric and crude way, ie. with a chainsaw. The jury recommendation in Oliver was the 10-year minimum. Here we have recommendations of 15, 20 and 25 years respectively, even without the jury being aware of the prior attempted murder conviction.
[82] For these reasons, R v. Oliver is far from a closely comparable case.
[83] However, the Court in R v. Nash, supra, at paragraphs 56 to 59, provided the following helpful comments, which include references to examples of cases in the 20 to 25-year range. Considering those, at least helps determine how close Mr. Rogers’ parole ineligibility should be to the 20 to 25-year range to satisfy proportionality and parity. This is what the Court in Nash stated:
[56] There is other jurisprudence which adds support to the understanding that, traditionally, the upper range has been reserved for the “worst of offenders for the worst offences”. These are the offenders who commit brutal murders and who have a criminal record involving brutal or violent crimes. Typically, cases in which the period of parole ineligibility has been fixed at 20 to 25 years involve offenders with criminal records involving violence and, hence, are considered to be a threat to public safety. It is not difficult to find examples.
[57] In R. v Cousins (2004), 234 Nfld. & P.E.I.R. 195, [2004] N.J. No. 75, 2004 NLCA 14, the offender was convicted of second degree murder. The victim was a fellow boarder in a rooming house. There was no apparent reason for the killing. Parole ineligibility was fixed at 25 years in circumstances where the offender had four years earlier killed another boarder. … In R. v. Cerra, the period of parole ineligibility was fixed at 20 years following a brutal beating and eventual drowning of a young woman. Death came about after a prolonged period and arose out of a petty drug dispute ($40). The offender had a minor criminal record for which he had been pardoned and the evidence did not indicate future dangerousness or poor rehabilitation prospects. In R. v. Strongman (K.) et al. (2007), 425 A.R. 200, [2007] A.J. No. 1377 (QL), 2007 ABCA 413, the offender was one of three persons tried for robbery, forcible confinement and first degree murder of a taxi driver. The 29-year-old offender was convicted of second degree murder and the period of parole ineligibility fixed at 22 years. The offender had 47 prior convictions, 10 of which were assault related.
[58] In R. v. Hammond, [2000] B.C.J. No. 1476 (QL), 2000 BCCA 428, the offender was convicted of second degree murder after shooting the victim twice in the face with a rifle. The motive for the killing was to acquire access to the victim’s property. The offender was 35 years old with a prior conviction for voluntary manslaughter in California for which he had received a significant sentence. Parole ineligibility was fixed at 20 years. In R. v Mafi, the offender was convicted of two counts of second degree murder after killing two co-workers for no apparent reason. The trial judge accepted the jury’s recommendation that parole ineligibility be fixed at 20 years. The British Columbia Court of Appeal reduced that period to 15 years having regard to the case law in that Province and elsewhere based on the “acceptable range”. The Court noted that the 36 year old offender had no previous criminal record and no history of violence. In R. v. Cruz (1998), 1998 CanLII 5951 (BC CA), 124 C.C.C. (3d) 157 (C.A.), [1998] B.C.J. No. 811 (QL), the offender had met his victim in a bar for the first time before shooting her four times in the head and then incinerating her body. Even though the offender had no criminal record the trial judge formed the opinion that the offender presented himself as a danger to society. The Court of Appeal dismissed the appeal from the trial judge’s decision to extend the period of parole ineligibility to 18 years.
[59] Viewed collectively, the above cases support the following general observations. Those offenders who have no previous criminal record involving violent criminal acts are less likely to see the period of parole ineligibility extended beyond the 10 to 15 year range. Those offenders with a criminal record that involve violence or other serious criminal conduct are more likely to have the period of ineligibility extended to somewhere in the vicinity of 15 to 20 years. In cases involving multiple murders or extreme brutality committed by offenders with a violent past the period of parole ineligibility may exceed 20 years. But still, you have to factor in other considerations such as age and whether the murder was committed during the commission of another crime. Again, I emphasize that these are general observations and meant only to provide general guidance and a focal point for future analysis.
[84] In the case at hand, Mr. Rogers does not have the mitigating feature of youthfulness or good chances of rehabilitation. He does not have a record for killing anyone else, and this case does not involve multiple murders. However, he does have a relatively recent record for attempted murder. During that offence, he intended and tried to kill someone. Fortunately, he was not successful, and the victim survived, despite being stabbed in the neck. This time, tragically, Colton Cook did not survive.
[85] Mr. Rogers’ actions have obviously not mellowed or improved with age. They have worsened. There is no indication of any effort or realistic potential for rehabilitation. Therefore, he presents a significant risk of reoffending in a deadly manner on release.
[86] He did not murder Colton Cook in the course of committing another offence. However, the murder was executed with extreme or egregious brutality.
[87] Even though he was intoxicated, he knew what he was doing and was the one primarily responsible for the murder, the gravest of offences, committed in a brutal fashion. He started it all by shooting Colton Cook out-of-the blue, for no apparent reason. It is only after he stopped wildly hacking, slashing, and stabbing with a machete that Mr. Crawford starting stabbing to stop the gurgling. But for Mr. Rogers’ actions the murder would not have happened.
[88] He cut off Colton Cook’s leg with a chainsaw and then orchestrated and carried out the disposal of the body and severed leg.
[89] These points, together with the other aggravating circumstances noted, even considering the mitigating circumstances, bring the case at hand well into the 15 to 20-year range and close to the 20 to 25-year range.
[90] The 19 to 20-year range recommended by the Crown is a reasonable one.
[91] Applying the principle of restraint, which I am directed by the Criminal Code to do, the appropriate period of parole ineligibility in the case at hand is 19 years.
[92] Rehabilitation and reparations are not objectives that are realistically achievable in this sentencing. However, in the unlikely event that Mr. Rogers does engage in some successful rehabilitation, he will still be able to seek judicial review for reduction of the period of ineligibility, under s. 745.6, after 15 years of imprisonment.
[93] Conversely, even after 19 years, it will still be up to the Parole Board whether it is safe to release him or not.
SENTENCE FOR MURDER
[94] As I noted at the outset, the mandatory sentence for murder is life imprisonment.
[95] Therefore, I sentence Mr. Rogers to life imprisonment.
[96] He must serve 19 years of that sentence before being eligible to apply for parole.
ANCILLARY ORDERS
[97] I also grant the absolutely mandatory DNA order and the lifetime firearms Prohibition order, pursuant to section 109 of the Criminal Code, which is also mandatory.
[98] I further grant the forfeiture order requested. The items to be included in that forfeiture order are listed in Exhibit 2. They include a Cooey 12-gauge shotgun, a Marlin 22 rifle, a 22 magazine with four rounds of ammunition, a box of 22 ammunition, a machete, and the Jonsared chainsaw.
SENTENCE FOR INDIGNITY TO HUMAN REMAINS
[99] For the indignity to human remains offence the Crown recommended 3.5 to 5 years concurrent. The Defence recommended 3 years.
[100] The extremely youthful age of the accused in R v. Parkin, 2017 ABQB 336, is a clear distinguishing feature that makes the sentence in that case not appropriate in the case at hand.
[101] The mitigating and aggravating features, and other sentencing objectives and principles I have discussed in connection with the murder offence, as they relate to this offence, are applicable, except that denunciation and deterrence remain paramount objectives.
[102] Our Court of Appeal, in R v. Calnen, 2017 NSCA 49, upheld the imposition of the maximum 5-year sentence where the offender had moved and burned the body several times. One of the places, he moved it to, was a wooded area. He ultimately dumped the remaining ashes in the lake in front of the victim’s parents’ cottage.
[103] This Court, in R. v. Garnier, 2018 NSSC 196, imposed a 4-year period of imprisonment. In that case, the offender did not dismember the body. He put it in a green bin, dumped it in an area of dense brush, and put a 90-pound feral cat box on top of it. The Court noted the lack of dismemberment as a feature distinguishing that case from the Calnen case.
[104] In both cases, the offenders were also sentenced to life imprisonment for 2nd degree murder. Therefore, as was required, they ordered that the sentence for indignity to human remains be served concurrently.
[105] In R v. Johnson, 2016 NSSC 297, a 5-year sentence was imposed along with life imprisonment for 2nd degree murder, even on a guilty plea. In that case the remains had been dismembered using an axe and a handsaw. They removed the head and hands from the victim’s body to interfere with her identification.
[106] In the case at hand, there was barbaric dismemberment. Mr. Rogers was solely and fully responsible. His horrific and gruesome actions are to be denounced and deterred in the strongest of terms. Though he did not burn the body or cut the head, Mr. Cook’s head had already been mutilated and he was left to rot.
[107] A 5-year sentence is consistent with that upheld in Calnen and that imposed in Johnson. Therefore, the maximum 5-year sentence is fit and appropriate for Mr. Rogers and I impose it. Since, he has already been sentenced to life imprisonment, the sentence must be concurrent.
CLOSING REMARKS
[108] I have arrived at these sentencing conclusions, based on the circumstances and the legal principles I must apply. I am fully aware the sentence will not provide the solace needed by the victims who live daily with the pain and loss caused by Mr. Rogers. No sentence could. No one should have to experience what they are going through.
Pierre L. Muise, J.