ONTARIO COURT OF JUSTICE DATE: 2022-06-30 NEWMARKET
BETWEEN: HER MAJESTY THE QUEEN — AND — GIUSEPPE AGOSTINO
Sentencing
Counsel: Ms. R. Gill, for the Crown Mr. G. Agostino, appearing on his own behalf
KENKEL J.:
Introduction
1On December 14, 2022 Mr. Agostino pleaded guilty and was found guilty on 10 charges on 4 Informations as follows:
INFO 91102500 with offences from July 6, 2021 onward – guilty plea to three counts of Break and Enter s 348(1)(a):
COUNT 3 – 25 AUG 21 Vaughan business at 1600 Steeles Ave W COUNT 4 – 30 AUG 21 Vaughan business at 7777 Keele St Unit 9 COUNT 5 – 25 AUG 21 Vaughan business at 7777 Keele St Unit 4
INFO 4911 998 21 91101293 with offences from 25 April, 2021 – guilty plea to one count of Break and Enter s 348(1)(a):
COUNT 1 – 25 APR 21 Vaughan business at 3883 Highway 7
- INFO 4911 998 21 91103788 with offences from 29 September, 2021 – guilty plea to charges of Theft Under s 334 and FTC Bail s 145(5):
COUNT 1 – 29 SEP 21 Vaughan Theft Under person UK COUNT 2 – 29 SEP 21 FTC Bail – Not possess burglary tools
INFO 4911 998 21 91103170 with offences from 6 October 2021 – guilty plea to charges of Mischief s 430(4), Fraud Under s 380(1)(b), Fail to comply Probation s 733.1 x 2:
COUNT 1 – 06 OCT 21 Vaughan Mischief to Tents at Canadian Tire COUNT 2 – 06 OCT 21 Vaughan Defraud Jeffrey BURKE Under $5k COUNT 4 – 06 OCT 21 Vaughan FTC Probation 28 JUN 21 – KTP COUNT 5 – 06 OCT 21 Vaughan FTC Probation 15 APR 21 – KTP
2He was released on bail following his guilty pleas on the understanding that he would attend residential drug treatment, then return for sentencing after that was completed. The Crown was seeking a further 6 months in jail in addition to the 69 days served to that point. Mr. Agostino was advised that if he completed the drug treatment a conditional sentence would be considered. He was also told that if he did not complete the program or committed further offences, he would likely not meet the criteria for a conditional sentence.
3Mr. Agostino appeared June 29th in 106 court. Mr. Agostino chose to discharge counsel and represent himself. He was reminded that he had been found guilty on 10 offences and the Crown was seeking further custody, but he confirmed his discharge of counsel.
4Former counsel Mr. Boggs advised the court that he understood Mr. Agostino attended the Vita Nova program for one week. Unfortunately, he did not complete the program. After he left the program he had further charges in Toronto at the Old City Hall courthouse and at Finch court. On June 16th he pleaded guilty to 20 further charges including two Break and Enter offences. He was sentenced to 42 days after credit was given for 81 actual days in pre-trial custody.
5There are two new Informations before the court alleging 8 new offences:
INFO – 4911 998 22 91100238 COUNT 1 29 SEP 21 Vaughan Theft Under personal effects s 334 COUNT 2 29 SEP 21 Vaughan FTC Bail – B&E Tools s 145(5) COUNT 3 29 SEP 21 Vaughan Poss B&E Tools s 351(1) COUNT 4 29 SEP 21 Vaughan Break and Enter 7695 Jane St s 348(1) COUNT 5 29 SEP 21 Vaughan Break and Enter 191 Creditstone Road s 348(1)
- INFO – 4911 998 22 91101220 COUNT 1 01 FEB 22 Theft Under Fortinos s 334(b) COUNT 2 01 FEB 22 Theft Under Shoppers s 334(b) COUNT 3 01 FEB 22 Poss Under s 354(1)
6The Crown withdrew the Information ending in 0238 as that dated from the same period as the prior Informations where he entered guilty pleas. Mr. Agostino entered a guilty plea to one Theft count from the Information ending in 220 from February 1st, 2022.
Aggravating Factors
7Mr. Agostino’s failure to complete the treatment program is not an aggravating feature. The fact that he committed numerous further offences after release is not a circumstance that aggravates sentence in this case as he’s now serving sentence for those offences.
8Beyond the number of offences and the circumstances of those offences on which he’s been found guilty, the central aggravating factor is Mr. Agostino’s criminal record. From 2019 to 2021 he was found guilty of 19 offences. Three were related to burglary and 8 were related to theft. He has 4 prior convictions for breaching court orders.
Mitigating Factors
9There are several mitigating factors:
- Mr. Agostino’s plea of guilty
- Mr. Agostino’s pre-trial custody of 69 days
- The fact that the pre-trial custody was served during the COVID pandemic
10Mr. Agostino is entitled to the full statutory credit of 104 days (69 x 1.5 = 103.5 = 104).
Sentence
11Mr. Agostino is almost 30 years old. He graduated high school and worked afterwards but in his late 20’s he became involved with opiate drugs. His record and these offences are consistent with that explanation. He was released in December with what I accept was a genuine intention to attend the drug treatment program at Vita Nova. Unfortunately, he left after 1 week and the spree of offences in Toronto followed.
12Taking into account the accused’s pre-trial custody and the circumstances in which it was served, the Crown submits that a further global custodial period of 6 months should be imposed.
13The primary goal of sentence in this case is the protection of the public. Specific deterrence is also required, but difficult where Mr. Agostino is still driven by his addiction. Prior probationary terms and release for treatment have not worked. Short jail sentences have also failed.
14Mr. Agostino does not meet the criteria for a conditional sentence. His release at this point would endanger the community and evidence shows he would not follow the necessary terms of such a sentence. Further custody is required to protect the public and to deter Mr. Agostino. While specific deterrence is difficult where offences are motivated by drug addiction, the further time spent away from drugs will have the ancillary benefit of assisting Mr. Agostino in his rehabilitation. While not imposed for that purpose, it may well be that a time-out from opiate drugs may help Mr. Agostino regain his health and recognize the need for treatment to save his life.
15I agree with the Crown that protection of the public and specific deterrence requires a sentence beyond the short terms imposed to this point. The 6-month sentence proposed by the Crown in addition to time served is within the range given the guilty plea. In this case I find the overall sentence must be reduced to reflect the circumstances in which the pre-trial custody was served during the pandemic. I also find that the principle of totality applies to reduce the sentence required as the accused has been in custody on other matters since March 24th and is presently serving a sentence.
16Mr. Agostino has served 69 days on these offences. I’ve applied the full statutory credit of 104 days on each count. With respect to the sentence to be imposed I find the least restrictive term that is proportionate to the gravity of all of the offences and the degree of Mr. Agostino’s responsibility is a further custodial period of 90 days. That sentence is consecutive to any sentence being served, but concurrent on each of the counts sentenced today.
17I will also place Mr. Agostino on probation for 18 months. In addition to the statutory terms, he will:
- Report within 2 days of his release by phone and thereafter as directed
- Reside at an address approved of by probation
- Not possess any screwdrivers, pry bars, hammers, knives or break-in instruments as defined in s 351 of the Criminal Code when outside your residence
- Take counselling for opiate addiction as directed by probation
- Sign any releases necessary for them to monitor that counselling
- Not communicate directly or indirectly with the two persons named by the Crown
- Not attend at the following addresses:
- FORTINOS – 3940 Highway 7 West in Vaughan
- 3883 Highway 7 West, Vaughan
- 1600 Steeles Ave West, Vaughan
- 1300 Alness St Vaughan
- 7777 Keele St Vaughan
18Mr. Agostino confirmed he’s now free of the physical effects of his addiction. He’s healthier and has a better perspective on his situation. Hopefully this sentence including the custody that’s necessary to protect the public will enable him to maintain his health even after release. His survival in this era of fentanyl and related poisons depends upon his making that change.
Delivered: June 30, 2022.
Justice Joseph F. Kenkel