R. v. Giovannelli, 2017 ONCJ 408

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subpara-graph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Giovannelli , 2017 ONCJ 408 DATE: 2017 06 15 COURT FILE No.: 15-16684 BETWEEN: HER MAJESTY THE QUEEN — AND — ROCCO GIOVANNELLI

Before Justice A.R. Mackay Heard on May 1, 2017 Reasons for Judgment released on June 15, 2017 A. Mountjoy.......................................................................................... counsel for the Crown M. De Rubeis.................................................................................. counsel for the accused MACKAY, J.: [ 1 ] On March 28, 2017, I found Mr. Giovannelli guilty of sexual assault after a trial. Sentencing submissions were heard on May 1, 2017. The facts in this matter are set out in my Oral Reasons for Judgment. The following is a brief

summary of the facts. Mr. Giovannelli was the owner of a restaurant and K.M. worked for the defendant as a waitress for approximately one week. During a staff work party, Mr. Giovannelli met K.M. outside the women’s bathroom in the basement of the restaurant where he kissed her, touched her breasts over her clothing and inserted his fingers in her vagina without her consent. The assault came to a halt when another employee came downstairs. K.M was located by the other employee in the staff room crying. Alcohol was consumed by both parties. The incident lasted less than 5 minutes. Mr.

Giovannelli appears before me today for sentencing. Positions of the Parties Crown: [ 2 ] The Crown submits that the sentence range is 9 to 12 months of real jail. [ 3 ] The Crown agrees that a conditional sentence is available but submits that given the nature of the offence, this form of sentencing would not address the sentencing principles of denunciation and deterrence. Defence: [ 4 ] The Defence submits that a conditional sentence is appropriate and can address all the relevant sentencing factors. Personal Circumstances of the Defendant [ 5 ] The defendant is 50 years old.

He is married, having been with his wife for 22 years. They have 3 children together. They are 15, 12 and 10 years old. At the time of the offence he had been an owner and operator of the GoodFella’s restaurant. He has since sold his interest in the business and built another restaurant. I am advised that the defendant recently sold his interest in the new restaurant and has become an employee given the uncertainty of the sentence he is to receive. Several letters were submitted by former employees of the defendant. All spoke very highly of Mr. Giovannelli.

He has been described as a hardworking, professional, fair and a caring employer. Several of the letters came from female servers, hostesses and kitchen staff. Many commenced working for the defendant after the sexual assault had occurred. [ 6 ] Mr. Giovannelli’s wife, Antonella wrote a lengthy letter speaking to her husband’s good character, love and dedication for his family. She described the defendant as a hardworking man who has worked steadily to build a successful business. Ms. Giovannelli was a victim of an assault committed by her husband in 2009.

She wrote at length about the fact that the incident was isolated and occurred at a time in their life when they were under great stress as a result of family members taking ill and some financial challenges that they were experiencing at the time. Their daughter suffers from anxiety and Mrs. Giovannelli advised that the defendant has been very supportive of his daughter and involved in taking her to medical appointments. [ 7 ] Mr. Giovannelli has 4 prior convictions: 1991 for Utter threats, 1993 for Mischief Over, 2009 for Assault and Fail to comply.

Victim Impact Statements [ 8 ] Victim impact statements were provided by the victim, K.M, her fiancé and her fiancé’s mother. [ 9 ] K.M. advised that she had gone from a very trusting, confident and fun loving person to an individual who suffered greatly from

anxiety and depression as a result of the sexual assault perpetrated on her. She has unfortunately postponed her wedding until this matterhas completed. After about 5 weeks of counselling, she stopped attending. There were a number of other hardships K.M. had sufferedbut given that she had stopped counselling the crown was not asking this court to rely on those hardships as an aggravating factor. [10] K.M.’s fiancé confirmed that K.M. has suffered serious emotional trauma as a result of the offence committed on her. He hasdescribed the last two years as being the most difficult two years of his life.

K.M.’s fiancé’s mother also confirmed that the offence haddramatically and negatively affected the lives of both K.M. and her son. Cases submitted by the Crown [11] The Crown relied on the following cases to support her position that a 9 to 12 month jail sentence was warranted: R. v. R.A.R.,2000 SCC 8 , [2000] 1 SCR 163, R. v. Mangal, [2016] O.J. No. 107, R. v. Wark, [2006] O.J. No.2202, R. v. Giraldo-Vargas,[2016] O.J. No. 6677, R. v. Thiara [2004] O.J. No.730, R. v. Aguas, 2015 ONSC 5732 , [2015] O.J. No. 4739. The casesranged from 5 months to 12 months jail.

However each case can be distinguished on their facts. I found that the crown’s cases involvedmore serious offences and a number of the victims were extremely vulnerable. R.A.R. involved further acts of great degradation andsome violence. In Mangal the complainant was an elderly women who was physically incapacitated. Wark was convicted of two counts,one which involved digital penetration but in that case the victim was unconscious. Giraldo-Vargas digitally penetrated a women whowas also unconscious.

Thiara sexually assaulted a 16 year old boy while he was at his workplace and waiting for the defendant to drivehim home. Aguas involved a serious breach of trust in which 3 women were sexually assaulted and photographed by the defendant, anurse while they attended a hospital for treatment. [12] I am mindful that I must consider the principle set out in s. 718 (2)(

b) of the Criminal Code that “a sentence should be similar tosentences imposed on similar offenders for similar offences committed in similar circumstances”. However I find in Wark and Giraldo-Vargas that the young women who were set upon while unconscious were in a more vulnerable position than the complainant in the casebefore me. [13] The Defence relies upon the following cases to support a conditional sentence or a sentence in the intermittent range: R. v. Hilan, [2015] O.J. No. 2384, R. v. Racco, [2013] O.J. No. 1330, R. v. T.(R.), 2011 ONSC 1042 , [2011] O.J. No.1704, R.v. Costa, [2013] ONSC 5778, R. v.

Casciaro, 2006 ONCJ 422 , [2006] O.J. No. 4501, R. v. Perry, [2012] O.J. No. 5327, and R.v. Long, [2013] O.J. No. 5337. [14] In Hilan the defendant touched the complainant’s leg and moved her skirt while seated beside her on a bus. The Court of Appealfound that the sentence of 6 months was wholly disproportionate to the conduct at issue. The defendant was a first time offender. Also,he had served 13 days of pre-sentence custody. The sentence was varied to a suspended sentence plus 2 years of probation. This case isfar less serious than the case before me. [15] Racco was a conviction and sentence appeal.

The conviction appeal was dismissed. A sentence of 60 days was varied to a 6month conditional sentence. The defendant was a real estate agent who insisted on meeting the complainant, his employee after work soshe could sign a lease document for a property she wanted to rent. While at her apartment he grabbed her by the neck and stuck histongue down her throat.

While he was doing so, he had placed his fingers on top of her pants in her vagina area. [16] An important issue which resulted in the sentence being varied was that the trial judge held that her sentence would be the samewhether the defendant touched the complainant inside her pants or outside. After reviewing the facts Justice Durno found that thetouching was outside the pants. His Honour found at para 93: [17] “Since the evidence was clear on the issue, the trial judge was required to sentence on the basis of the evidence.

The distinctionbetween sexual touching over and under the clothing is generally a relevant consideration in assessing the seriousness of the sexualassault in imposing sentence. Both appellate and trial courts refer to whether the touching was over or under the clothing. See: R. v. T.(L.), [2011] O.J. No. 1650 (Ont. C.A.), College of Physicians and Surgeons of Ontario v. Sazant, 2011 ONSC 323 , [2011] O.J.No. 192 (Ont. Div. Ct.) at para. 279 and R. v. Escobar, [2008] O.J. No. 1232 (Ont. S.C.J.) at para. 23. In this context, the Crown agrees atouching under the clothes would be a more intrusive sexual assault.

From the appellant's perspective he received the same sentence ashe would have received had the trial judge been satisfied beyond a reasonable doubt that he committed a more serious sexual assault”. [18] And later his Honour referred to touching under the clothing as being “a more invasive and serious sexual assault” (Racco, para.94.) [19] It goes without saying that digital penetration is a more serious sexual assault than what had occurred in Racco. [20] T.R. sexually assaulted his wife whom he had been separated from while they attended church.

He touched her breast and hervagina underneath her underwear for a few seconds. It was a joint submission for a conditional sentence of 2 months. [21] In Costa, the defendant was a custodian at a school and the victim was a librarian. He touched her buttocks, squeezed her breastand tried to kiss her. The suspended sentence was upheld on appeal. [22] Casciaro was a caretaker and the victim was an 18 year old student who suffered from a disability that affected both her mobilityand to some degree her cognitive and communicative functioning.

He brought her to a room, touched her breasts under her shirt andtried to kiss her. The defendant voluntarily attended for an assessment with a psychologist. The conclusion of the assessment was that thedefendant had no propensity to engage in sexual abuse in the future. He was 62 years old with health issues and had lost his job, his fullpension and an “essential part of his identity”. Mr. Casciaro had no prior record. The court did not find it to be a breach of trust situation.He had lived a socially productive life. The prosecution of the case had disgraced him in the eyes of his family, friends and community.

His misconduct has cost him his job. The court imposed a conditional sentence of 6 months.

[23] In Perry, the defendant grabbed a female employee and dragged her into the stockroom and tried to kiss her, on a secondoccasion, he put his hand part-way down her pants, above her underwear. The defendant was 48 years old with no prior record. He wasconvicted of assault and sexual assault and received 30 days for the assault and 90 days jail for the sexual assault with 2 years’probation. Sentences were consecutive. Both offences involved the abuse of a position of authority by an employer against his employeeat the workplace.

The offending behavior continued at the outset of her employment and continued throughout. [24] In Long, the defendant sexually assaulted a female employee at their workplace by touching her breast, kissing her and pullingdown her shirt and kissing her breast. The complainant had a learning disability, functioned at the level of a 12 or 13 year old. Thedefendant was found guilty of 3 counts of sexual assault. The defendant was 60 years old with no prior record.

Justice Baldwin foundthat this was a double breach of trust; one for sexually assaulting an employee at workplace and by sexually assaulting a person he knewhad a learning disability. The Court acknowledged the immigration consequences to the defendant should a lengthier sentence beimposed. Her Honour found that a conditional sentence would not have addressed the objectives of denunciation and deterrence. Whilethere are very serious features in this case which are absent in the case at bar, the nature of the sexual assault by Mr.

Giovannelli wasmore serious. [25] Justice Baldwin relied on R.A.R. and found that given the circumstances of the case, a conditional sentence would not addressthe objectives of denunciation and deterrence that are required and imposed a jail sentence of 90 days with 2 years’ probation. Analysis [26] I turn now to deal with the aggravating features of the case. The crown argues that it was a breach of trust given the complainantwas working for the defendant at the time of the offence and that pursuant to s. 718.2(a) (iii) of the Criminal Code, is an aggravatingfactor.

Had the sexual assault occurred while the defendant and the complainant were working, it would very clearly be a breach of trustsituation. In this particular case, the offence occurred at a staff party where everyone had come to socialize, drink and eat. While not apure breach of trust situation, I find that there was an abuse of a position of authority component to the offence that is aggravating. [27] The nature of the offence, digital penetration as already indicated is very serious. In addition, it has had a devastating impact onthe complainant. [28] Mr.

Giovannelli has a prior record which includes a domestic assault on his wife. [29] There are however, a number of mitigating factors. Mr. Giovannelli has worked very hard at his business and to a number ofemployees he was respectful and kind. He is a dedicated father of three children. His wife although the victim of an assault by herhusband has indicated in a very detailed letter that Mr. Giovannelli is a good husband who is a caring and loving father. [30] The most important considerations in this case given the nature and gravity of the offence are deterrence and denunciation.

Withrespect to specific deterrence this appears to have been addressed with Mr. Giovannelli’s arrest and prosecution of this matter. I mustensure however that a clear message is sent to employers who would be tempted to engage in unwanted sexual acts with employees. Conditional sentence [31] I am of the view that a suspended sentence with probation is inappropriate in the circumstances of this offence.

The question Imust decide is whether a jail sentence is required or whether a conditional sentence is an appropriate sentence. [32] S. 742.1 of the Code list the 4 criteria that a court must consider in deciding whether to impose a conditional sentence. [33] I am required to consider by virtue of s. 742.1(

b) of the Code to determine whether the safety of the community would beendangered by the offender serving his sentence in the community. Two factors should be taken into account in this regard: first, therisk of the offender re-offending; and second, the gravity of the damage that could ensue in the event of recidivism. [34] I find the risk of re-offending is minimal given Mr. Giovannelli has no related convictions, the specific deterrent effect of hisprosecution, the fact that he has worked as an owner and manager of a restaurant before and since, and there have been no similarcomplaints.

Accordingly, the conditions precedents to a conditional sentence are satisfied. [35] In these circumstances, I can consider whether it is appropriate to impose a conditional sentence. [36] However the more difficult decision I must decide is whether such a sentence is consistent with the fundamental purpose andprinciples of sentencing as set out in ss. 718 to 718.2 of the Code. [37] In R. v.

Proulx 2000 SCC 5 , [2000] 1 S.C.R. 61, at para 114 Justice Lamer stated: Where punitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goalsmight be achieved by a conditional sentence.

[ 38 ] Mr. Giovannelli works long hours and often works weekends. To allow Mr. Giovannelli to serve his sentence at his restaurant would have a minor impact on his current day to day routine and do little to deter him or others. [ 39 ] I am of the view that a conditional sentence would not adequately address the gravity of this offence and the fundamental principles of sentencing engaged in this case. I find that the appropriate sentence in this case is a custodial sentence of 90 days.

I will permit the offender to serve this sentence intermittently if that request is made. [ 40 ] This will be followed by a one year probation order with the following terms: • report to a probation officer as directed; • To have no contact or communication, directly or indirectly, with K.M.; • Not to be within 500 meters of her residence, place of employment, education, worship or any other place where she may reasonably be expected to be; • To attend and participate in all assessments, counselling and treatment, including treatment for sexual offenders, as directed, and sign consents to enable your participation and progress to be monitored; • Keep the Peace and be of Good Behavior [ 41 ] A DNA sample is ordered. [ 42 ] SOIRA is ordered for 10 years, [ 43 ] The Victim Fine Surcharge will be $100.00 Released: June 15, 2017 Signed: Justice A.R.

Mackay