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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 212, 212, 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: 2017-05-16

Court File No.: Orangeville 2016 160584

Between:

Her Majesty the Queen

— and —

Davide Scinocco

Before: Justice G.P. Renwick

Sentencing Hearing Held on: 16 May 2017

Reasons for Sentence Released on: 16 May 2017

Counsel:

• L. Marcone — counsel for the Crown
• J. Dennis — for the defendant Davide Scinocco

Reasons for Sentence

RENWICK J.: (orally)

Introduction

[1] After a three hour trial and an equal amount of time reviewing and considering the evidence and submissions, I found Mr. Scinocco guilty of one count of sexual assault committed against the complainant.

[2] The facts that I found are as follows:

i. Over the course of several hours on the night of the sexual assault, the complainant and the defendant had consumed alcohol; the complainant had consumed more than one bottle of wine and she considered herself intoxicated; there is no evidence to establish how much alcohol Mr. Scinocco consumed before the offence; in the end, I'm prepared to accept that alcohol had some effect on Mr. Scinocco's judgment, although I do not find that he was intoxicated to the point of failing to appreciate the nature and consequences of his actions that night;

ii. The complainant did nothing to initiate sexual contact or to encourage the defendant; to the contrary, I find that she was always clear that she did not want any sexual contact with Mr. Scinocco;

iii. Despite the complainant's clear indications, Mr. Scinocco was intent on having sexual contact with her and he would not be deterred. Mr. Scinocco attempted to kiss the complainant, he grabbed her hip, he attempted to hug her from behind, he exposed himself to her, he touched at her waist and shirt while she was on the telephone, and his actions culminated in the sexual assault while she slept, which consisted of moving her underwear, touching her vagina, and attempting to put something or a part of himself into her vagina; and

iv. Were it not for the complainant's verbal and physical resistance when she awoke, the sexual assault would have continued.

[3] The aggravating features of this sexual assault are:

i. The defendant repeatedly ignored the clear messages of the complainant to refrain from touching her in a sexual way; the defendant initiated sexual intercourse with the complainant despite all of the clear verbal and physical messages that this was unwanted by her;

ii. The defendant took advantage of the fact that the complainant was essentially stranded at his residence, because she was intoxicated and could not drive home; there is an element of breach of trust in this situation, because obviously, as acquaintances, the complainant had every right to expect that Mr. Scinocco would not prey upon her when she was vulnerable;

iii. At the moment of the sexual assault, the complainant was not capable of providing consent and it was obvious that she was asleep;

iv. The nature of the sexual assault, that being a partial vaginal penetration of a brief duration, upon a sleeping complainant is an extreme violation upon the complainant's personal and bodily integrity; and

v. The complainant had to verbally and physically repel the defendant to bring the sexual assault to an end.

[4] By way of mitigating circumstances I note the following:

i. The evidence established that the complainant was only partially vaginally penetrated for a very brief period of time; and

ii. A minimal amount of force was used during the sexual assault; specifically, the defendant put his forearm on the back of the complainant and moved her underwear to facilitate the sexual assault, and the complainant did not suffer any physical injuries from the force used or from the sexual assault.

Sentencing Considerations (in no particular order)

[5] The defendant is not a first offender, but given the date of his prior conviction, and the fact that it was for an unrelated type of offence, I am prepared to treat him as a first-offender.

[6] In a case of sexual assault involving a sleeping or incapacitated complainant sentences range from 9 months imprisonment to a three year sentence in the penitentiary. Some courts have granted conditional sentences for this type of offence and that is because this offence is not ineligible for a conditional sentence if I find that such a sentence would meet the needs of denunciation, deterrence, and protection of the public.

[7] I must consider the least restrictive punishment that will adequately denounce the defendant's conduct and deter him and other would-be offenders.

[8] The defendant's rehabilitation is also a factor I must consider, however, it is secondary after denunciation and deterrence, in this case. My goal is to balance the stated sentencing goals by the imposition of a sentence that does not crush the defendant's spirit, but instead meets the community's needs in addition to the promotion of Mr. Scinocco's rehabilitation.

[9] The defendant is a mature adult, he turns 39 in two days, he has no spouse or children, but he supports his sister and her son. Based on their appearance on the day of trial and today, I acknowledge that Mr. Scinocco has the strong support of his family and friends. As well, the defendant has the support of his employer. According to Mr. Marco Lisi, the defendant is invaluable to the on-going success of his small business as the company's leading salesman. As well, Mr. Scinocco is an installer with an impressive work record, and he is now someone who trains others.

[10] Mr. Scinocco has very good prospects for rehabilitation, given his age, his stellar employment history, and his family and community supports. As well, it doesn't appear that the defendant suffers from any on-going alcohol or substance abuse issues, or dangerous paraphilias.

[11] I am also mindful that vulnerable people who are asleep and cannot consent to sexual activity deserve protection from those who prey on them as if they were their own inert sexual toys.

[12] In the end, after having considered the aggravating and mitigating features of this offence, the circumstances of the defendant, and the betrayal and extreme violation of the complainant's bodily integrity, I am unable to conclude that a conditional sentence could meet the pressing need for denunciation and deterrence in this case.

[13] I rely specifically upon Mr. Justice Campbell's dicta in the Smith case, 2015 ONSC 4304, [2015] O.J. No. 3513 (S.C.J.), a binding appellate decision, at paragraph 36:

Conditional sentences have, on occasion, and in exceptional circumstances, been imposed for offences of sexual assault committed upon unconscious or semi-conscious complainants. [the 3 cited Ontario Court of Appeal decisions are R. v. Killam, R. v. Nikkanen, and R. v. Pecoskie, citations omitted]

His Honour continues:

There is, however, no gainsaying the reality that conditional sentences, even those with significant restrictions on liberty and punitive terms, do not have the same denunciatory effect as a period of actual imprisonment. Accordingly, it is not surprising that, in the great majority of cases, a significant term of actual imprisonment is imposed upon an accused in such circumstances.

[14] These words echo our Court of Appeal in the Killam case, referred to by Justice Campbell, at paragraphs 13 and 14:

[I]t must be acknowledged that a conditional sentence, even one like this one which imposes some significant restrictions on the offender's liberty, does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal.

I admit to considerable doubt as to whether a conditional sentence could adequately reflect the gravity of this offence and send the proper denunciatory message to the public. I am, however, satisfied that the case law commands that my doubt yield to the deference that must be afforded to the decision made by the trial judge. As Lamer C.J.C. put it in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at 566:

The sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community.

[15] In the case at bar, I am of the view that a conditional sentence is not warranted because of the aggravating features of this sexual assault, the lack of remorse of the defendant, and the absence of any exceptional personal circumstances that might mitigate the potential effect of a conditional sentence in this type of case.

Sentence

[16] Davide Scinocco, I am sentencing you to 12 months imprisonment followed by two years of probation with the following terms:

i. Keep the peace and be of good behaviour;

ii. Appear in court when required;

iii. Notify your probation officer within 24 hours of any change of name, address, or occupation;

iv. Report within 24 hours of your release to a probation officer, and thereafter as required;

v. Reside where directed by your probation officer;

vi. Do not have any contact, directly or indirectly with [the complainant] or her [child];

vii. Do not attend at or within 200m of the residence, place of employment or education, or any other place where [the complainant] or her [child] are known to attend; and

viii. Do not possess any weapons.

[17] I am satisfied that it is in the public interest and the best interests of the administration of justice to order the following ancillary orders:

i. S.110 order for 5 years;

ii. You will provide a sample of your deoxyribonucleic acid (DNA) for the National Databank; and

iii. You will comply with the requirements of the Sex Offender Information Registration Act for 10 years.

Released: 16 May 2017

Justice G. Paul Renwick