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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subparagraph (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.

Court Information

Ontario Court of Justice

Date: June 15, 2017

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

Counsel

A. Mountjoy — counsel for the Crown

M. De Rubeis — counsel for the accused

Decision

MACKAY, J.:

Facts and Conviction

1On March 28, 2017, I found the accused 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. The accused was the owner of a restaurant and the victim worked for the accused as a waitress for approximately one week. During a staff work party, the accused met the victim 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. The victim was located by the other employee in the staff room crying. Alcohol was consumed by both parties. The incident lasted less than 5 minutes. The accused appears before me today for sentencing.

Positions of the Parties

Crown

2The Crown submits that the sentence range is 9 to 12 months of real jail.

3The 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

4The Defence submits that a conditional sentence is appropriate and can address all the relevant sentencing factors.

Personal Circumstances of the Defendant

5The accused 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 accused 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 accused. All spoke very highly of the accused. 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 accused after the sexual assault had occurred.

6The accused's wife, Antonella wrote a lengthy letter speaking to her husband's good character, love and dedication for his family. She described the accused as a hardworking man who has worked steadily to build a successful business. The wife 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 the wife advised that the accused has been very supportive of his daughter and involved in taking her to medical appointments.

7The accused has 4 prior convictions: 1991 for Utter threats, 1993 for Mischief Over, 2009 for Assault and Fail to comply.

Victim Impact Statements

8Victim impact statements were provided by the victim, her fiancé and her fiancé's mother.

9The victim 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 matter has completed. After about 5 weeks of counselling, she stopped attending. There were a number of other hardships the victim had suffered but given that she had stopped counselling the crown was not asking this court to rely on those hardships as an aggravating factor.

10The victim's fiancé confirmed that the victim has suffered serious emotional trauma as a result of the offence committed on her. He has described the last two years as being the most difficult two years of his life. The victim's fiancé's mother also confirmed that the offence had dramatically and negatively affected the lives of both the victim and her son.

Cases Submitted by the Crown

11The 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 cases ranged from 5 months to 12 months jail. However each case can be distinguished on their facts. I found that the crown's cases involved more serious offences and a number of the victims were extremely vulnerable. R.A.R. involved further acts of great degradation and some 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 who was also unconscious. Thiara sexually assaulted a 16 year old boy while he was at his workplace and waiting for the accused to drive him home. Aguas involved a serious breach of trust in which 3 women were sexually assaulted and photographed by the accused, a nurse while they attended a hospital for treatment.

12I 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 to sentences 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 case before me.

13The 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.

14In Hilan the accused touched the complainant's leg and moved her skirt while seated beside her on a bus. The Court of Appeal found that the sentence of 6 months was wholly disproportionate to the conduct at issue. The accused 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 is far less serious than the case before me.

15Racco was a conviction and sentence appeal. The conviction appeal was dismissed. A sentence of 60 days was varied to a 6 month conditional sentence. The accused was a real estate agent who insisted on meeting the complainant, his employee after work so she could sign a lease document for a property she wanted to rent. While at her apartment he grabbed her by the neck and stuck his tongue down her throat. While he was doing so, he had placed his fingers on top of her pants in her vagina area.

16An important issue which resulted in the sentence being varied was that the trial judge held that her sentence would be the same whether the accused touched the complainant inside her pants or outside. After reviewing the facts Justice Durno found that the touching 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 distinction between sexual touching over and under the clothing is generally a relevant consideration in assessing the seriousness of the sexual assault 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 a touching under the clothes would be a more intrusive sexual assault. From the appellant's perspective he received the same sentence as he would have received had the trial judge been satisfied beyond a reasonable doubt that he committed a more serious sexual assault".

18And later his Honour referred to touching under the clothing as being "a more invasive and serious sexual assault" (Racco, para. 94.)

19It goes without saying that digital penetration is a more serious sexual assault than what had occurred in Racco.

20T.R. sexually assaulted his wife whom he had been separated from while they attended church. He touched her breast and her vagina underneath her underwear for a few seconds. It was a joint submission for a conditional sentence of 2 months.

21In Costa, the accused was a custodian at a school and the victim was a librarian. He touched her buttocks, squeezed her breast and tried to kiss her. The suspended sentence was upheld on appeal.

22Casciaro was a caretaker and the victim was an 18 year old student who suffered from a disability that affected both her mobility and to some degree her cognitive and communicative functioning. He brought her to a room, touched her breasts under her shirt and tried to kiss her. The accused voluntarily attended for an assessment with a psychologist. The conclusion of the assessment was that the accused 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 full pension and an "essential part of his identity". The accused 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.

23In Perry, the accused grabbed a female employee and dragged her into the stockroom and tried to kiss her, on a second occasion, he put his hand part-way down her pants, above her underwear. The accused was 48 years old with no prior record. He was convicted 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 employee at the workplace. The offending behavior continued at the outset of her employment and continued throughout.

24In Long, the accused sexually assaulted a female employee at their workplace by touching her breast, kissing her and pulling down her shirt and kissing her breast. The complainant had a learning disability, functioned at the level of a 12 or 13 year old. The accused was found guilty of 3 counts of sexual assault. The accused was 60 years old with no prior record. Justice Baldwin found that this was a double breach of trust; one for sexually assaulting an employee at workplace and by sexually assaulting a person he knew had a learning disability. The Court acknowledged the immigration consequences to the accused should a lengthier sentence be imposed. Her Honour found that a conditional sentence would not have addressed the objectives of denunciation and deterrence. While there are very serious features in this case which are absent in the case at bar, the nature of the sexual assault by the accused was more serious.

25Justice Baldwin relied on R.A.R. and found that given the circumstances of the case, a conditional sentence would not address the objectives of denunciation and deterrence that are required and imposed a jail sentence of 90 days with 2 years' probation.

Analysis

26I turn now to deal with the aggravating features of the case. The crown argues that it was a breach of trust given the complainant was working for the accused at the time of the offence and that pursuant to s. 718.2(a)(iii) of the Criminal Code, is an aggravating factor. Had the sexual assault occurred while the accused and the complainant were working, it would very clearly be a breach of trust situation. In this particular case, the offence occurred at a staff party where everyone had come to socialize, drink and eat. While not a pure breach of trust situation, I find that there was an abuse of a position of authority component to the offence that is aggravating.

27The nature of the offence, digital penetration as already indicated is very serious. In addition, it has had a devastating impact on the complainant.

28The accused has a prior record which includes a domestic assault on his wife.

29There are however, a number of mitigating factors. The accused has worked very hard at his business and to a number of employees he was respectful and kind. He is a dedicated father of three children. His wife although the victim of an assault by her husband has indicated in a very detailed letter that the accused is a good husband who is a caring and loving father.

30The most important considerations in this case given the nature and gravity of the offence are deterrence and denunciation. With respect to specific deterrence this appears to have been addressed with the accused's arrest and prosecution of this matter. I must ensure however that a clear message is sent to employers who would be tempted to engage in unwanted sexual acts with employees.

Conditional Sentence

31I am of the view that a suspended sentence with probation is inappropriate in the circumstances of this offence. The question I must decide is whether a jail sentence is required or whether a conditional sentence is an appropriate sentence.

32S. 742.1 of the Code lists the 4 criteria that a court must consider in deciding whether to impose a conditional sentence.

33I am required to consider by virtue of s. 742.1(b) of the Code to determine whether the safety of the community would be endangered by the offender serving his sentence in the community. Two factors should be taken into account in this regard: first, the risk of the offender re-offending; and second, the gravity of the damage that could ensue in the event of recidivism.

34I find the risk of re-offending is minimal given the accused has no related convictions, the specific deterrent effect of his prosecution, the fact that he has worked as an owner and manager of a restaurant before and since, and there have been no similar complaints. Accordingly, the conditions precedents to a conditional sentence are satisfied.

35In these circumstances, I can consider whether it is appropriate to impose a conditional sentence.

36However the more difficult decision I must decide is whether such a sentence is consistent with the fundamental purpose and principles of sentencing as set out in ss. 718 to 718.2 of the Code.

37In 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 aggravating circumstances, incarceration will generally be the preferable sanction. This may be so notwithstanding the fact that restorative goals might be achieved by a conditional sentence.

38The accused works long hours and often works weekends. To allow the accused 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.

39I 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.

Sentence and Conditions

40This 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 the victim;
• 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

41A DNA sample is ordered.

42SOIRA is ordered for 10 years.

43The Victim Fine Surcharge will be $100.00