2023 QCCQ 1098, 2023 QCCQ 1098

R. c. Mazzocca 2023 QCCQ 1098 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” N°: 500-01-220006-214 DATE: March 16, 2023 PRESIDED BY THE HONOURABLE LORI RENÉE WEITZMAN, J.C.Q. HIS MAJESTY THE KING Prosecution v. Loris MAZZOCCA Accused SENTENCE [ 1 ] Mr. Mazzocca was found guilty of one count of assault against S.Y., his girlfriend at the time. The event occurred on March 14, 2020. [ 2 ] The factual details were reviewed in the decision on conviction, [1] and they are briefly summarised here. S.Y. and Mr.

Mazzocca were involved in an on-and-off, unhealthy relationship for a period of six months. On March 14, 2020, they were at his apartment, arguing. Mr. Mazzocca was so verbally aggressive that S.Y. was worried that something serious might happen to her, prompting her to text her mother her exact whereabouts. [ 3 ] S.Y. was crying loudly and would not heed Mr. Mazzocca’s orders to stop crying and to calm down. He put his hand over her mouth to stop her from crying, making her feel that she could not breathe. This occurred in the living room. [ 4 ] S.Y. then went into the bedroom, and Mr.

Mazzocca followed her, insisting that she stop her loud crying because the neighbours would hear. He then pressed her face-down onto the bed, with her face in a pillow, making it hard for her to breathe. He finally released his hold on her when she stopped crying. [ 5 ] Mr. Mazzocca requests an absolute discharge, whereas the prosecution suggests that the Court suspend the passing of the sentence and impose several conditions in a probation order, including the obligation to perform community service hours. Evidence at the sentencing hearing S.Y. [ 6 ] Pursuant to

section 722 of the Criminal Code S.Y. prepared a victim impact statement (VIS) which she chose to read out in court (section 722(5) Cr. C.). [2] The defence objected to the filing of this statement, because it included consequences stemming not only from the assault on March 14, 2020, but also from a charge of sexual assault, of which he was acquitted.

Although the prosecutor endeavored to have S.Y. draft a new document focusing only on the events of March 14, 2020, S.Y. was unable to parse out the fallout specifically related to this one incident. [ 7 ] The Court dismissed the defence’s objection and allowed the VIS to be filed, however the Court will not consider as an aggravating factor any consequences on S.Y. that do not stem from the assault of March 14, 2000. [ 8 ] S.Y. describes considerable emotional, physical and financial consequences of the crime as well as fears for her security.

More specifically, she describes suffering from post-traumatic shock and stress disorder which lasted from August 2020 until quite recently. She developed severe depression, distress, anxiety and recurrent flashbacks of the events. She describes feeling grief, intense sadness and insecurity, as well as physical pain requiring several doctors’ visits, medication and physiotherapy. She was placed on disability leave for a short time. She continues to fear any possible encounter with Mr.

Mazzocca and feels that although she was once a strong woman, this relationship has left her feeling “as if she is disappearing into nothing”. [ 9 ] While recognizing that each victim of crime may be affected differently, the Court must consider the possibility that the very serious psychological and physical distress described by S.Y. cannot entirely be attributed to the actions of Mr. Mazzocca on March 14, 2020. S.Y.’s suffering seems related not only to the crimes she alleged (one proven, one not) but also to the general impact of an unhealthy relationship where she felt victimized and threatened.

The Court accepts that S.Y. was scarred by this six-month relationship with Mr. Mazzocca, and that undoubtedly, his assault on her left her with feelings of vulnerability and insecurity.

Mr. Mazzocca [ 10 ] Mr. Mazzocca testified on sentence. He is 55 years old and has no criminal record. He has always been a productive member of society, gainfully employed and possessing good values. He has been working as a business analyst for 22 years. [ 11 ] He feels “remorse” [3] for a relationship that “went astray” and wants S.Y. to know that he “never meant to hurt anyone”.

After he was found guilty of this assault last October, he sought therapy aimed at dealing with his emotions and fostering introspection. [4] For two years now, he has been in a positive relationship with a woman who wrote a letter to the Court. [5] She describes Mr. Mazzocca as a sensitive, honest, caring and hard-working person who is gentle, kind, loving and respectful towards her. She also considers him to be a good influence on her young son. The description of Mr.

Mazzocca as being a kind and caring person with integrity and good values is also confirmed in a letter submitted to the Court from a woman who was in a relationship with Mr. Mazzocca from 2017 to 2019. [ 12 ] These letters and the testimony of Mr. Mazzocca also speak to the effect of these proceedings on him, including sorrow and distress. [ 13 ] Mr. Mazzocca spends a good deal of time caring for his elderly father who has dementia. [6] [ 14 ] In recognition of his fault and in an attempt to “give back”, he has made a donation to an organisation providing assistance for victims of spousal abuse. [7] [ 15 ] Mr.

Mazzocca provided three documents to illustrate the impact that a criminal conviction would have on him. [8] The first, dated December 1, 2021, is a letter from Globe Electric Company informing Mr. Mazzocca that they were withdrawing the employment offer made to him for the position of forecast analyst. According to Mr. Mazzocca, this was the result of a criminal background verification. The second is an email from Ms. Fillion at Groupe BBH, informing Mr. Mazzocca that after a complete verification of his file, they were unable to consider him for the position of analyst in their company. [9] Finally, Mr.

Mazzocca provided a letter from HRS Global dated October 26, 2022, [10] which served as both a character reference and an indication of the impact that a conviction would have on him. [ 16 ] Mr. Mazzocca is described by Mr. Messina, the VP Finance at HRS Global, as a valuable employee, who is professional, courteous and trustworthy. When told by Mr. Mazzocca of this assault charge, Mr. Messina informed him that his position at HRS Global would be “subject to review” should he obtain a criminal record. [ 17 ] Additional questioning by the Court brought to light that Mr.

Mazzocca recently started a new job, and he no longer works for HRS Global. In January 2023, he was able to secure a position as a business analyst at a different company, through a personal contact there, without being subjected to a thorough background check. Sentencing principles generally [ 18 ] The Criminal Code sets out the applicable sentencing principles in sections 718 and following.

It provides that the goals of sentencing are denunciation, deterrence, isolation of offenders where necessary, reintegration into society, and recognition and reparation of harm done. [ 19 ] The fundamental principle is that the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.).

In order to craft an appropriate sentence, the Court must take into account aggravating and mitigating circumstances, while respecting the principle of parity of sentences. [11] [ 20 ] A sentence involving deprivation of liberty will not be appropriate where less restrictive sanctions can meet the goals of sentencing (s. 718.2 Cr. C.). In this matter, it is accepted by all concerned that a custodial sentence is not warranted. [ 21 ] The objective gravity of a crime can be inferred from the maximum sentence set by the legislature.

In this case, the maximum sentence for simple assault, when prosecuted by indictment, is five years (s. 266 Cr. C.). Guiding principles for granting a discharge [ 22 ] According to

section 730 Cr. C., the two main factors that the Court must analyse in the present case are first, whether a discharge is in the best interests of Mr. Mazzocca and second, whether the granting of a discharge would be against the public interest. [ 23 ] The criteria to identify the best interests of the accused are set out in Corbeil-Richard c .

R ., [12] where the Québec Court of Appeal states: [...] Generally, the first condition would presuppose that the accused is a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, that the entry of conviction against him may have significant adverse repercussions. [ 24 ] As for the notion of public interest, it must take into account the objective of general deterrence, the seriousness of the offence, its impact on the community, the public's attitude towards it and its confidence in the justice system. [13]

[ 25 ] A discharge is potentially available for any offence that meets the basic requirements of

section 730 (where the crime is not subject to a maximum punishment of 14 years or life and where no minimum punishment is prescribed), meaning that a discharge is not automatically excluded because of the nature of the offense.

Thus, even where, as here, an assault is committed in the context of conjugal violence, a discharge is not per se excluded as a possible outcome, [14] notwithstanding the need to focus on deterrence and denunciation. [15] [ 26 ] It has also been noted by the Québec Court of Appeal that a discharge is not an exceptional measure. [16] Thus, all the aspects of each individual case will dictate whether a discharge is appropriate in the circumstances, without the need to qualify the facts, or the offender’s circumstances as “exceptional”.

ANALYSIS [ 27 ] The aggravating factors considered here are the following: - The crime involves violence against an intimate partner (section 718.2 (a) (ii) Cr. C.), who is a vulnerable female victim (

section 718.04 and 718.201 Cr.C .). The evidence at trial showed that Mr. Mazzocca was well aware of S.Y.’s vulnerability, given her limited support system in Canada, and that he reminded her of it during their verbal altercations; - This one incident involved two distinct acts of violence towards S.Y., the first when Mr. Mazzocca pressed his hand to her mouth to stop her from crying in the living room and the second when he followed her into the bedroom and pressed her onto the bed, both times making her feel that it was difficult for her to breathe. [ 28 ] The mitigating factors are the following: - Mr.

Mazzocca has no prior record and is a productive member of society; - This event is an isolated incident and is out of character for Mr. Mazzocca. The Court places weight on the letters of support which show that he is currently in a healthy relationship for the past two years with his new partner and that he also has the support of his ex- girlfriend with whom he remains on good terms after a two-year relationship. - Mr.

Mazzocca’s sense of responsibility and his focus on limiting any recidivism, as illustrated by the therapy that he voluntarily undertook after the guilty verdict; and - although he cannot properly be described as “remorseful”, since he denies committing the acts that he was found guilty of, [17] he does show empathy toward S.Y. for her difficulties which can be attributed to their unhealthy and volatile relationship. [ 29 ] Regarding the appropriateness of granting a discharge, the Court must assess the two criteria referred to above. Following a review of the evidence on sentencing, the Court finds that Mr.

Mazzocca has established that a discharge is “in his best interests”. [ 30 ] As the jurisprudence provides, “best interests of the accused” requires more than a general or universal “best interest” of any first offender who hopes to avoid a criminal conviction. The Court requires more than a theoretical or hypothetical adverse impact on Mr. Mazzocca. [18] As the Québec court of Appeal in R. c.

Naimer states: [19] [16] […] même si la possibilité d’un préjudice professionnel peut suffire pour démontrer l’intérêt véritable de l’accusé à obtenir une absolution, cette possibilité ne peut pas être uniquement théorique ou constituer une simple hypothèse. [ 31 ] In the present case, the question is whether the apprehended consequences on Mr. Mazzocca’s future employment are real or hypothetical. It is true that the two missed employment opportunities followed a background check where he did not have a criminal record.

As well, he no longer works at HRS Global where the impact of a conviction was spelled out in a letter. Nevertheless, the three letters he provided do serve to illustrate his testimony to the effect that wherever he works, as a business analyst he is privy to highly sensitive and confidential business information, requiring complete trust in him by clients and employers.

As such, the negative impact of a criminal record on his continued employment in this field is not merely a hypothetical or vague possibility. [ 32 ] To summarise, on the first criterion the Court is satisfied that the evidence establishes that Mr.

Mazzocca is “ a person of good character, without previous conviction, that it is not necessary to enter a conviction against him in order to deter him from future offences or to rehabilitate him, that the entry of conviction against him may have significant adverse repercussions ”. [20] [ 33 ] The next question is whether a discharge in these circumstances would run counter to the objectives of denouncing the unacceptability and criminality of domestic violence and increasing public confidence in the administration of justice. [21] Although denunciation and deterrence are to be afforded “added weight” in the context of domestic violence [22] this must not trump the objective of imposing a proportionate sentence. [ 34 ] Without diminishing the seriousness of his actions toward S.Y. and the fact that they had a significant impact on her, it is relevant that this was an isolated incident.

__________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me Bruno Ménard Attorney for the Prosecution Me Jeffrey Boro Attorney for the Defence Hearing Date: February 16, 2023 [ 35 ] Although no specific evaluation provides insight into the risk of recidivism, the Court is satisfied that the therapy undertaken by Mr. Mazzocca will be helpful in reducing this risk. In addition, his two-year relationship with his current girlfriend, which she describes as positive in all aspects, is further indication that the risk of recidivism is not a concern. [ 36 ] As noted above, Mr.

Mazzocca has made a charitable donation of $500 and has received therapeutic counselling. In addition, the Court does not doubt that these proceedings have had impact on him, further providing both specific and general deterrence. [ 37 ] Considering all of these factors, it is not contrary to the public interest for Mr. Mazzocca to benefit from a discharge. However, this is not an appropriate case for an absolute discharge.

First, a ban on any communication with S.Y. is necessary and appropriate in order to provide S.Y. with the peace of mind she deserves. [23] Second, the imposition of community service hours within the context of a discharge will serve to underscore the denunciation of this crime of conjugal violence and provide a concrete manner for Mr. Mazzocca to make amends for his wrongdoing. FOR THESE REASONS, THE COURT: GRANTS Mr. Mazzocca a conditional discharge.

He will be on probation for a period of 18 months; IMPOSES , in addition to the statutory conditions, the following additional conditions: - He is prohibited from being in the physical presence of S.Y.; - He must respect a 200-meters radius of S.Y.’s home, place of work or place of study; - He is prohibited from communicating with S.Y. in any manner, directly or indirectly and from referring to her on social media. - He must perform 75 hours of community service within a period of 12 months.