R. v. Gucciardi, 2017 ONCJ 770

CITATION: R. v. Gucciardi , 2017 ONCJ 770 DATE : September 15, 2017 Court File No. 15-9650 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. ANTHONY GUCCIARDI ********** R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE J. STRIBOPOULOS on September 15, 2017, at BRAMPTON, Ontario **********

APPEARANCES : H. Gluzman Counsel for the Crown B. Scott Counsel for Anthony Gucciardi ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Page Number Reasons for Sentence 01

R E A S O N S F O R S E N T E N C E STRIBOPOULOS J . (Orally): Anthony Gucciardi pled guilty before me to a charge that he, by means of a computer system, communicated with a person he believed to be less than 16 years of age, for the purposes of facilitating the commission of the offence of sexual touching, contrary to s.172.1(1) (

b) of the Criminal Code of Canada . These are my Reasons for Sentence in Mr. Gucciardi’s case. I begin with the circumstances of the offence. On July 17, 2015 a Peel Regional police officer, posing as a 14-year-old girl named “Katie”, responded to a personal advertisement posted by Mr. Gucciardi on Craigslist. From the very outset of their communications the officer clearly represented to Mr. Gucciardi that she was just 14 years old. Undeterred by her purported age, over a period of three weeks Mr. Gucciardi continued to regularly communicate with Katie through both emails and texts.

Although he was 60 years of age at the time, he told Katie that he was 46. In these communications Mr. Gucciardi took the discussion in a sexually explicit direction. This included encouraging Katie to send him photos of her intimate areas and at one point Mr. Gucciardi sent Katie a video of himself masturbating. Through his various communications Mr. Gucciardi made it crystal clear that he very much wanted a sexual relationship with Katie. To the extent that she expressed reservations he offered her reassurance by casting himself as a caring father figure and by referencing his own teenage daughter.

The communications lasted about three weeks and culminated in a plan for an in-person meeting. There is absolutely no doubt as to the intended purpose of the meeting. Two days before the meeting Mr. Gucciardi sent Katie a link to an instructional sex video aimed at teenagers. Then, the day before the meeting, Mr. Gucciardi wrote Katie telling her, “I fantasized about this forever, you’re my ultimate fantasy. It’s just if your mother finds out I’ll go to jail.”

On the morning of August 7, 2015 Mr. Gucciardi drove from Whitby, where he lives with his wife and children, to an address in Brampton, where he believed Katie lived with her mother. The plan was to meet at Katie’s residence while her mother was out of the house. Police arrested Mr. Gucciardi shortly after he arrived at the address. At the time of his arrest Mr. Gucciardi had with him a package of Reese’s Peanut Butter Cups, as well as two bags of Skittles. These were items that Katie had specifically asked Mr. Gucciardi to bring to their meeting.

I turn from the circumstances of the offence to the circumstances of the offender. Mr. Gucciardi is now 62 years of age. He does not have a criminal record. He emigrated from Italy at the age of three with his parents. It would appear that, along with a younger brother, he grew up in what can be fairly described as a loving and supportive environment. His upbringing was relatively uneventful; free from many of the challenges that too often conspire to bring individuals before this court. Mr. Gucciardi has been gainfully employed since leaving high school.

For the last 25 years he has run his own concrete business. He specializes in decorative concrete installations for a residential clientele. Mr. Gucciardi married his wife in 1989. They have two children together, a son 24 and a daughter 15. Not surprisingly, the arrest and charges have been difficult for Mr. Gucciardi’s entire family, especially his daughter and wife. His daughter saw a counsellor for a period following his arrest. During that same period Mr. Gucciardi and his wife also attended for marriage counselling. Apparently, after much soul searching, Mr.

Gucciardi’s wife has decided to stay with him, to try and salvage their marriage. In terms of explaining his offence, Mr. Gucciardi cites a lack of intimacy in his marriage (due to some medical issues) along with feelings of depression associated with turning 60 and being concerned about potentially losing his virility. Of course this is a less than convincing explanation for why a 60 year old man would aggressively pursue, for his own sexual gratification, a girl that he believed to be just 14 years of age. Since his arrest, Mr.

Gucciardi has undergone extensive group and individual sex offender therapy through the Manasa Clinic in Toronto. Dr. Monik Kalia, a registered forensic and clinical psychologist authored two reports in relation to Mr. Gucciardi that became exhibits on the sentencing hearing. Although in his role as a forensic psychologist Dr. Kalia performs risk assessments on sex offenders, the reports filed contained no such assessment with respect to Mr. Gucciardi. Nevertheless, a battery of psychological tests was administered. The result of that testing are set out in Dr. Kalia’s November 2016 report. In that report Dr.

Kalia explains that the testing does, “not indicate the presence of any major mental illness or personality disorder.” In a Treatment Update dated August 29, 2017 Dr. Kalia reports that Mr. Gucciardi has responded well to therapy. He writes that Mr. Gucciardi, “was able to clearly understand and articulate that his behaviour was indeed inappropriate.” And he notes further that, “this is a significant step towards rehabilitation.” Further Dr.

Kalia writes that, “I am confident that he has the capacity to use the knowledge and skills acquired in counselling to not make any unhealthy choices in the future.” He concludes by emphasizing that, “these are all very favourable factors against re-offending.” But, as mentioned, in neither of his reports does Dr. Kalia offer his opinion regarding Mr. Gucciardi’s risk of re-offending.

I mention this because, not surprisingly, such risk assessments have proven an important consideration in a number of decisions involving the sentencing of offenders for this offence. It also deserves mention that Mr. Gucciardi appears to be genuinely remorseful for his actions. This is apparent from the materials filed on the sentencing hearing, as well as from his comments to me on the last occasion that we were in court. I turn from the circumstances of the offender to the positions of the parties. This sentencing hearing proceeded in a somewhat unconventional manner that deserves some explanation.

I initially heard sentencing submissions on November 9, 2016. At the completion of submissions Mr. Gucciardi asked for a long adjournment until the early fall of 2017. Although cognizant of the obligation to proceed with sentencing, “as soon as practicable after an offender has been found guilty” (see s.720(1) of the Criminal Code ), I granted the requested adjournment in order to minimize the potential financial impact of Mr. Gucciardi’s imprisonment on his family by giving him one further summer of work, his busy season, before his incarceration.

At the initial sentencing hearing on November 9, 2016, the Crown argued that an appropriate sentence, mindful of the governing sentencing principles, including the sentencing precedents for this offence, taking into account both the aggravating and mitigating factors, would be 15 months imprisonment. The Crown also sought a lengthy period of probation to ensure that Mr. Gucciardi continues to receive counselling long into the future. The Crown also noted that an order requiring Mr. Gucciardi to comply with the Sex Offender Information Registration Act for a period of 20 years is mandatory for this offence.

As is an order for the collection of Mr. Gucciardi’s blood in order to include his DNA in the National DNA Databank. Finally, the Crown also sought an order pursuant to subsections 161(1)(

c) and (

d) of the Code for a period of 20 years. In contrast, emphasizing a number of mitigating factors, including that Mr. Gucciardi is a first offender, the fact that he pled guilty, his apparent remorse and the positive steps that he has undertaken to achieve his rehabilitation since he was charged, the defence argued in favour of the mandatory minimum sentence of one year imprisonment. Further, in the circumstances, defence counsel questioned the justification for a s.161 order lasting 20 years. Given that they are both mandatory the defence made no submissions regarding either the SOIRA order or the DNA order.

Since hearing sentencing submissions in November 2016, the Court of Appeal for Ontario released its decision in R v Morrison , 2017 ONCA 582 . In Morrison the Court declared that the mandatory minimum sentence of one year imprisonment contained in s.172.1(2) of the Code is of no force or effect. As a result, after Morrison was decided I wrote the parties to indicate that if they felt the need to make further submissions in light of that decision, they should do so in writing. Both Crown and defence counsel accepted this invitation and filed supplementary written submissions.

The Morrison decision was the focus of the written submissions filed by the parties. Ultimately relying on certain aspects of the decision in Morrison the Crown argues that its original position, 15 months imprisonment, continues to be an appropriate sentence, despite the

fact that the mandatory minimum sentence of one year’s imprisonment is no longer in effect. In contrast, the defence, relying on certain similarities between the Morrison case and this case, while also conceding some differences,submits that with the mandatory minimum no longer operable, the appropriate sentence in this case is between eight and ten monthsimprisonment. I turn next to the governing principles and my determination as to the appropriate sentence in this case. The Criminal Code provides that the, “fundamental purpose of sentencing is to protect society” and to contribute “to respect for the lawand the maintenance of a just, peaceful and safe society.” See

section 718. Those purposes are to be realized through the imposition of “just sanctions” that reflect one or more of the traditional sentencingobjectives: denunciation; general and specific deterrence; separation of offenders; rehabilitation; reparation to victims; and promoting asense of responsibility in offenders and acknowledgment of the harm done to victims and to the community. See subparagraphs 718(a)through (f). The fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degreeof responsibility of the offender.

This long established tenet of the sentencing process is now expressly contained in the Criminal Code. See

section 718.1. To satisfy this requirement a sentence must fit both the gravity of the crime and the offender’s level ofblameworthiness in its commission. See R v Ipeelee,2012 SCC 13 , [2012] 1 S.C.R. 433 at paras 35 to 38.

In assessing the gravity of the offence, a number of considerations must be borne in mind, including: any minimum and maximumpunishments mandated by Parliament; the threat the offence poses to the public and its impact on the community, both in a genericsense and in the particular circumstances presented by the case before the court; and the various considerations enumerated in ss.718.2(a)of the Criminal Code. See R v Hamilton, (ON CA), [2004] O.J. No. 3252 at para 90 (C.A.).

In arriving at the appropriate sentence it is axiomatic that the sentence should be increased or reduced to account for any relevantaggravating or mitigating circumstances relating to the offence or the offender. See Criminal Code subparagraph 718.2(a). See also R vPriest, (ON CA), [1996] O.J. No. 3369 at paras 26 to 27 (C.A.). I turn from the general principles of sentencing to the specific guidance provided by our Court of Appeal with respect to the sentencing ofoffenders for the offence of online child luring.

The Court of Appeal has emphasized that the sentences imposed for online child luring must serve to safeguard children who areindefatigable users of the Internet from those predators who would abuse this technology to lure them into situations where they can besexually exploited and abused. To that end, the Court of Appeal has instructed, long before Parliament attached mandatory minimumsentences to this offence, that the sentencing objectives of denunciation and deterrence would ordinarily demand a custodial sentence forthose who commit this crime. See R v Folino, (ON CA), [2005] O.J. No. 4737 at para 25 (C.A.).

Of course, an offender’s rehabilitation always remains an important goal. However, denunciation, deterrence and separation fromsociety are the predominant objectives when sentencing offenders for the offence of online child luring. See R v Jarvis, (ON CA), [2006] O.J. No. 3241 at paras 23 to 24 (C.A.); R v Alicandro, 2009 ONCA 133 , [2009] O.J. No. 571 at para49 (C.A.); and R v Woodward,2011 ONCA 610 , [2011] O.J. No. 4216 at para 76 (C.A.).

Given this, in Jarvis, which like this case involved an offender who engaged in online communications with an undercover police officerwho posed as an adolescent girl, Justice Rosenberg, writing for the Court, made the following observation at paragraph 31 of the Court’sjudgment: The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelvemonths and two years. Circumstances such as possession of child pornography or a record for other child sexual offences will require asentence at the upper end of this range.

Obviously, if the offender has previously committed the same offence an even longer sentence

may be required. The Court of Appeal returned to the appropriate sentencing range for the offence of online child luring in Woodward . In that case the offender appealed against both his convictions and sentence. Unlike Mr. Jarvis or Mr. Gucciardi, Mr. Woodward had not committed the child luring offence by communicating with an undercover police officer posing as a child. Rather, he exchanged messages with an actual 12-year-old girl. He ultimately met with the victim and engaged in a variety of sexual acts with her, including sexual intercourse.

He was therefore also convicted and sentenced for sexual interference, invitation to sexual touching, attempting to obtain for consideration the sexual services of a person under the age of 18 and sexual assault. Mr. Woodward appealed against a global sentence of six-and-one-half years, which included an 18-month consecutive sentence for the offence of luring a child for a sexual purpose. In dismissing the sentence appeal, writing for the Court, Justice Moldaver suggested that Jarvis did not intend to establish a sentencing range for the luring offence.

He wrote, at paragraph 58: Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 to 10 years. Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.

Of course, since Jarvis was decided Parliament has increased the maximum punishment for this offence where the Crown proceeds by indictment to 14 years imprisonment. See Tougher Penalties for Child Predators Act, S.C . , c. 23, s. 11. As already noted, the Court of Appeal revisited the topic of sentencing for the online luring offence in Morrison . It will be recalled that in Morrison the Court invalidated the mandatory minimum sentence of one-year imprisonment where the Crown elects to prosecute this offence by indictment.

In Morrison the offender had communicated with an undercover police officer who was posing as a 14-year-old girl in an online chat room. During their communication Morrison suggested that the girl should touch herself. Morrison testified that he thought he was participating in a sexual role-play with an adult female, as the website required participants to be 18 years of age or older. The trial judge had a reasonable doubt as to whether or not Morrison believed the person he was communicating with was a child.

Nevertheless, he was convicted based on his failure to take reasonable steps to ascertain the age of his interlocutor. Importantly, Morrison never arranged a meeting and ended his communications unilaterally. In these circumstances the sentencing judge concluded that a four-month sentence, followed by a period of probation, was appropriate. The Court of Appeal agreed that the mandatory minimum one-year sentence was inconsistent with

section 12 of the Charter and therefore declared it of no force or effect. In the course of its analysis the Court provided some much needed guidance on how to navigate its earlier decisions dealing with the appropriate range of sentences for online child luring. Importantly, it concluded that review with the following, found at paragraphs 128 through 132 of its judgment: [128] What emerges from this brief review of the case law on the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case.

The range of seriousness of offences committed under s. 172.1 is evidently very wide. [129] As with all sentencing decisions, much will depend on the specific facts of the case and the circumstances of the offender and the nature of the offence at issue. Here, the trial judge considered these facts comprehensively and correctly sought the guidance set out in Woodward .

I can discern no error in principle that would undermine the trial judge’s assessment that a sentence of four months imprisonment was appropriate for this offence and this offender. . . . [130] I conclude that this applies an accurate benchmark against which to measure whether the mandatory minimum in s. 172.1(2) of the Code is grossly disproportionate in relation to Morrison in applying the s. 12 Charter framework.

[131] In my view, the disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality under s.12. Morrison’s blameworthiness is diminished in that it cannot be said that he believed his interlocutor was under age when engaging in sexualized conversations. He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not under-age. Communication online with an adult for a sexual purpose is not itself a crime.

Although his communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the four months he received. In this sense, the facts of this case are distinguishable from those in Woodward . There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Morrison intended to commit a physical sexual offence in relation to an under-age child.

He eventually ended his communications unilaterally. He is in his late sixties, is a productive member of society and has no criminal record.

The child luring offence must be taken seriously given the potential of harm it could result in for the most vulnerable members of our society, but in this case no actual harm resulted from Morrison’s transgression. [132] On the other hand, an offender who knowingly embarks on a systemic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault would merit a substantial sentence of imprisonment, in some cases, well above the mandatory minimum. In my view, there are a number of aggravating circumstances in this case that were not present in Morrison .

To begin, it is apparent that Mr. Gucciardi believed that Katie was only 14 years old. Despite this, he set about a deliberate and protracted course of conduct that was clearly aimed at readying her for a sexual encounter with him, this included: encouraging her to send him intimate images of herself; sending her a video of himself masturbating; sending her a link to an instructional video about sex; and assuaging her concerns by comforting and reassuring her. In short, Mr. Gucciardi engaged in what can fairly be described as “grooming” behaviour. Also aggravating, in my view, is Mr.

Gucciardi’s level of commitment to his plan. On the date of his arrest he travelled a considerable distance from his home in Whitby all the way to Brampton. He brought with him items that Katie had specifically requested. This was, in his words, something that he had “fantasized about forever.” The fact that Mr. Gucciardi was seriously committed to his insidious plan of having sex with a child is most troubling. I am of course also obligated to consider the mitigating factors in this case. First, there is the fact that Mr. Gucciardi comes before the court at the age of 62, with no prior criminal record.

He has, until this point in time, apparently lived an entirely pro-social life. He has been gainfully employed. He married, had children. His wife describes him as a good husband and father. Mr. Gucciardi also pled guilty to this offence and has expressed what I accept to be genuine remorse for his wrongdoing. Finally, it is very much in his favour that he has already undergone an extensive amount of sex offender therapy and, although I do not have the benefit of a risk assessment, Dr. Kalia does comment favourably on Mr.

Gucciardi’s level of insight and suggests that the therapy has given him the necessary knowledge and skills to avoid re-offending. In

summary, in deciding upon the appropriate sentence in this case, I have at the forefront of my mind both the principles and objectives of sentencing as they have been further explained in the context of this offence by our Court of Appeal, as well as both the aggravating and mitigating factors in this case. Taking these principles, objectives and factors into account, I am going to ask you to stand at this point, Mr. Gucciardi, I have concluded that the appropriate sentence in this case is 12 months imprisonment.

I will make a very strong recommendation that you serve your sentence at the Ontario Correctional Institute, where you can continue to take sex offender treatment while you are imprisoned. I will endorse the Warrant of Committal with that recommendation. At the completion of your custodial sentence you will be placed on probation for a period of three years. You will be subject to the following conditions of probation:

• That you keep the peace and be of good behaviour. • That you attend court if and when directed to do so. • That you advise the court or your probation officer in advance of any change of name, address or occupation. • That you report to Probation Services within three working days of your release from custody and thereafter if and when directed to do so by your probation officer. • That you take any counselling or therapy as recommended by your probation officer, with a specific recommendation that you continue to take sex offender therapy. • And finally, that you sign any necessary releases to allow your probation officer to monitor your attendance for any counselling or therapy that is recommended and your completion of same.

Do you understand the various terms of the probation order as I have explained them to you? ANTHONY GUCCIARDI: I do, Your Honour. THE COURT: Will you abide by them? Will you follow them? ANTHONY GUCCIARDI: Yes, Your Honour. THE COURT: And I have to caution you that the failure to abide by any of these probationary terms is a separate and serious offence for which you could go to jail. This is a primary designated offence, therefore pursuant to s.487.051 of the Criminal Code I am required to order that a sample of your blood be taken for the purposes of including your DNA profile in the National DNA Databank.

As a result, an order will issue to that effect. Further, pursuant to s.490.013(2) (

b) of the Criminal Code , I am required to order that you comply with the Sex Offender Information Registration Act for a period of 20 years. In addition, I will make the following orders pursuant to my authority under s.161(1) of the Criminal Code . Following your release from custody, for a period of 20 years, you will be prohibited from using a “computer system” within the meaning of s.342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of 16 years, except for immediate family members.

Further, you will be prohibited from using the Internet, or any similar communication service, to access any content that violates the law or to directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (for example Facebook, Twitter, Tinder, Instagram or any equivalent or similar service). This is a separate free-standing court order, do you understand its terms? ANTHONY GUCCIARDI: Yes, Your Honour. THE COURT: Will you follow it? ANTHONY GUCCIARDI: Yes, Your Honour.

THE COURT: And I have to warn you, it is a separate serious offence to breach a s.161 order for which you can go to jail. Lastly, the victim fine surcharge applies to this offence. It is $200 for an indictable offence like this one. Given your incarceration for 12 months I will give you 12 months to pay the victim fine surcharge. I suspect you will probably be getting out in ample time to pay it.

Those are my Reasons for Sentence. Thank you very much counsel. --------------------------------- FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2) I, Rosemarie Pereira, certify that this document is a true and accurate transcription of the recording of R. v. A. Gucciardi in the Ontario Court of Justice, held at 7755 Hurontario Street, Brampton, taken from Recording(

s) No. 311110320170915130828 which has been certified in Form 1. ____________________________ ____________________________ Date Rosemarie Pereira