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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

CITATION: R. v. Phillippo, 2022 ONCJ 499 DATE: 2022 11 02 COURT FILE No.: Toronto 22-55003264

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEFFREY PHILLIPPO

Before: Justice D. Ishak Heard on: October 18, 2022 Reasons for Judgment released on: November 2, 2022

Counsel: M. Wilson, for the Crown D. Newton, for the accused Jeffrey Phillippo

ISHAK J.:

I. Circumstances of the Offence

[1] On June 2, 2022, I found Mr. Phillippo guilty of sexual assault. The conviction stems from an incident which occurred on December 6, 2019.

[2] After their work Christmas party, Jeffery Phillippo and E.F. returned to her room for some wine. While chatting on the bed, E.F. fell asleep. As she slept, she felt Mr. Phillippo’s hand on her collarbone. His hand moved downward into her t-shirt and touched her left nipple multiple times. E.F. turned her body which led Mr. Phillippo to quickly withdraw his hand.

[3] Shortly thereafter, while still lying on the bed, E.F. felt his hand go up her t-shirt and down her sleeping shorts. His hand began playing with the band of her underwear and she felt a finger go under the elastic band and move side-to-side. The balance of his fingers were on top of her underwear.

[4] Mr. Phillippo’s hand then moved towards her buttocks, after which it moved to her inner hip. Mr. Phillippo’s hand did not touch her vagina but was in her bikini line.

[5] It was then that E.F. woke up. When she opened her eyes, the lights were on, and Mr. Phillippo was still on the bed. She told Mr. Phillippo she wanted to go to sleep. Mr. Phillippo acquiesced and left the room.

II. Position of the Parties on Sentence

[6] The Crown submits the appropriate sentence in the case at bar is a 90-day conditional sentence, followed by two years’ probation.

[7] Counsel, on behalf of Mr. Phillippo, concedes a conditional sentence is within the range of sentences available for sexual assault, but argues a conditional discharge would be a suitable sentence as it would be in the best interests of Mr. Phillippo, and not contrary to the public interest.

III. Legal Principles

[8] The goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society.

[9] The fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the person who committed the offence. Ultimately, the sentence I impose must be tailored to Mr. Phillippo’s circumstances and the circumstances of the offence he committed.

[10] As with all sentencing cases, I am guided by the purpose and principles of sentencing set out in the Criminal Code which list the factors a sentencing judge must consider before imposition of the punishment on an offender found guilty of a crime. Deterrence and denunciation must be balanced against Mr. Phillippo’s prospects of rehabilitation. In determining the appropriate sentence, I must also consider any relevant aggravating or mitigating factors.

1. Aggravating Factors

[11] There are number of aggravating factors in the case before me:

(1) There were two instances of non-consensual touching. Mr. Phillippo first ventured down E.F.’s shirt with his hand and touched her left nipple. His fingers and hand then moved along, and under, the elastic of her underwear. Though he did not touch her vagina, he came within her bikini line;

(2) Both instances of sexual touching were under E.F.’s clothing, and as such, more intrusive. As Justice Durno stated in R. v. P.R. [2013] OJ No 1330, at para 93:

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. L.T. [2011] O.J. No. 1650 (C.A.), Sazant v. College of Physicians and Surgeons, 2011 ONSC 323, [2011] O.J. No. 192 (Div.Ct.) at para. 279 and R. v. Escobar, [2008] O.J. No. 1232 (S.C.J.) at para. 23;

(3) E.F. was in a semi-conscious state and particularly vulnerable when the touching occurred. It would have been evident to Mr. Phillippo that she was sleeping or in the midst of falling asleep; and

(4) The offence perpetrated by Mr. Phillippo had a significant impact on E.F. As result of his actions, she quit her job – a job she had held for numerous years. She began doubting herself and her self-worth. E.F. sought the assistance of a therapist and suffered from anxiety and depression for which she was prescribed medication. She suffered panic attacks, felt hopeless and sad. It affected her ability to feel safe when alone in her home, and impacted her ability to begin new friendships both personally and professionally.

2. Mitigating Factors

[12] Mr. Phillippo is 40 years old and comes before the Court with no criminal record. He is a first offender who has been a contributing and hardworking member of society. He has the support of his friends and family, as can be seen from their letters of support. He is also employed on a full-time basis. He does not suffer from any mental health or drug addiction issues, yet sought the services of a therapist to voluntarily engage in counselling.

[13] As a result of the conviction, Mr. Phillippo lost his job with C.M. where he had worked for eleven years.

[14] He has been on a release order since his arrest in 2020, and there have been no allegations of breach. Though not an onerous bail, it is a factor to be considered.

[15] As per the pre-sentence report (hereinafter “PSR”), Mr. Phillippo had a positive upbringing devoid of abuse and reported a positive relationship with his family. He is university and college-educated and described himself as a career-driven individual, who prioritized work over his social life. Mr. Phillippo confirmed his willingness to comply with any form of community supervision deemed appropriate by the Court. The author of the PSR found Mr. Phillippo appeared motivated towards self-improvement.

[16] Finally, when addressing the Court, Mr. Phillippo expressed remorse for the pain he caused and hoped to continue working towards making amends for what happened.

3. Non-Mitigating Factors

[17] This was not a guilty plea – Mr. Phillippo was convicted after trial.

IV. Jurisprudence

[18] The sentencing range for sexual assault varies significantly given the various acts and behaviour which fall within the ambit of this offence. Though a conditional discharge is an available sentence, it is not commonly imposed for a conviction flowing from a sexual assault. The jurisprudence has made clear the most important considerations in the context of a sexual assault are general deterrence and denunciation (see R. v. Berseth, 2019 ONSC 888 at para 55).

[19] Neither party provided any case law supporting their position, however, the following three cases I found helpful in determining the appropriate sentence for Mr. Phillippo:

1. R. v. Berseth, 2019 ONSC 888

[20] The offender had approached the victim who was dancing with her boyfriend. As he passed by, he reached out and groped her vagina, trying to finger her through her clothing. He did not touch her skin, but the victim could feel his fingers pull in an upward direction through her clothing. It was agreed the touching had been momentary.

[21] Mr. Berseth was a 23-year-old first offender who plead guilty. He was a recent university graduate, was employed and provided numerous letters of support. As per the victim impact statement, the offence had a significant impact on the victim – it had changed the manner she lived her life, she had deferred her final exams and suffered from anxiety.

[22] The trial judge gave Mr. Berseth a conditional discharge with 15 months’ probation. The Crown appealed the sentence, but it was dismissed by the Summary Conviction Appeal Court.

[23] I find there to be many similarities between the Berseth case and the case at bar, however, there are also significant differences. First, and foremost, Mr. Berseth was sentenced after a guilty plea, not a trial. Secondly, the touching by Mr. Berseth was fleeting and occurred over the victim’s clothing. Mr. Phillippo, on the other hand, twice slipped his hand, or part of it, under E.F.’s clothing. He touched her nipple and was in the area of her bikini line. Finally, the victim in Berseth was awake and alert when the assault occurred, unlike E.F. who was asleep.

2. R. v. P.R., 2013 ONSC 1517

[24] The offender was a real estate agent and the victim was his office manager. After meeting at a coffee shop to discuss the victim's apartment search, the offender pressured the victim into inviting him back to her residence. Once at the victim's residence, the offender grabbed the victim's neck, stuck his tongue down her throat, and touched her vaginal area over her pants.

[25] The offender was convicted after trial and sentenced to 60 days jail and 24 months’ probation. The conviction and sentence were appealed to the Summary Conviction Appeal Court.

[26] On appeal, it was confirmed to be aggravating that the offender was in a position of authority in relation to the victim, that it occurred in her home, and that it had a significant impact on her and her employment.

[27] As to mitigation, he was 49 years old, a first offender, and had worked with a “life coach” to address his depression issues. He was no longer with his wife, had lost his employment and had been unemployed for a period of time before obtaining new employment. His reputation in the community had been impacted – the same community to which he had made significant contributions. He was a person of otherwise good character with family obligations. Finally, he was found not a risk to re-offend and several reference letters spoke in glowing terms of the offender as a person and contributor to his community.

[28] On appeal, the conviction was upheld, but the sentence varied to a 6-month conditional sentence.

[29] Once again, there are numerous similarities between this case and that of Mr. Phillippo: a middle-aged first offender who lost his job, had excellent reference letters, was involved in his community and was convicted after trial. However, I note Mr. Phillippo was not in a position of authority in relation to E.F., but that his sexual touching of E.F. occurred under her clothing.

3. R. v. H.A.E., 2018 ONSC 5690

[30] The victim, who was employed by the offender, asked to schedule a meeting with the offender to discuss work-related issues. Despite the victim’s preference to meet in the city, the offender insisted the meeting take place at a restaurant in the countryside. While the victim was riding in the offender’s vehicle, the offender took hold of the victim’s hand. Despite repeated objections from the victim, the offender progressively moved his hand to her thigh and vaginal area, and proceeded to rub her vagina and clitoris through her clothing.

[31] H.A.E. was convicted after trial and sentenced to a 6-month conditional sentence and one-year probation.

[32] The offender was a 70-year-old university professor and business owner. He did not have a criminal record, and the trial judge noted the significant impact the collateral consequences of the conviction would have on H.A.E..

[33] However, the trial judge found the power imbalance between the parties, the offender’s use of that power imbalance to isolate the victim, the prolonged and repeated nature of the sexual assault in the face of very clear objections from the victim, and the "significant impact" the offender’s conduct had on his victim were all aggravating factors.

[34] The conviction and sentence were appealed but both were ultimately dismissed by the Summary Conviction Appeal Court.

V. The Appropriate Sentence

[35] As per section 730(1) of the Criminal Code:

Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

[36] The offence for which Mr. Phillippo was convicted does not carry a mandatory minimum, nor is it punishable by imprisonment of fourteen years or life given the Crown’s election to proceed summarily. There can be no doubt a conditional discharge would be in the best interests of Mr. Phillippo, but what I must now determine is whether it would be contrary to the public interest.

[37] Mr. Phillippo sexually assaulted E.F. while she slept. He twice violated the sanctity of her person in a deliberate, deplorable, and intrusive manner. He did so while E.F. undoubtedly felt safe in her room, with her friend and co-worker of several years. He betrayed her trust and their friendship, and rightfully acknowledged being disgusted with himself the next day. His actions led E.F. to quit her job and had a significant emotional and psychological impact.

[38] Given the aggravating factors in the case before me, I find a conditional discharge would be contrary to the public interest and would fail to suitably address the principles of general deterrence and denunciation.

[39] I am cognizant of the principle of restraint and its application, particularly when sentencing a first-time offender whom I find is unlikely to re-offend. However, in the circumstances of this case, when applying the sentencing principle set out in s. 718.1 of the Criminal Code and having regard to the aggravating and mitigating factors, as well as Mr. Phillippo’s prospects of rehabilitation, I find the appropriate sentence is one of incarceration.

[40] What I must now determine is whether that jail sentence can, and should, be served in the community.

1. Conditional Sentence

[41] The preconditions required to allow the Court to impose a conditional sentence are set out in section 742.1 of the Criminal Code. Most of those preconditions have been met in the case at bar. The crux of the matter before me lies within s. 742.1 (a) which states:

the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[42] I am satisfied Mr. Phillippo would not endanger the safety of the community, and I find a conditional sentence would be consistent with the fundamental purpose and principles of sentencing and, more specifically, would adequately address the principles of denunciation and specific deterrence.

[43] As per the Supreme Court of Canada’s decision in R. v. Proulx, 2000 SCC 5 (hereinafter “Proulx”), a conditional sentence can provide significant denunciation and deterrence, and that generally, the more serious the offence, the longer and more onerous the conditional sentence should be.

[44] It was noted a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served (see Proulx, para 114).

[45] Finally, the Court noted that “punitive conditions such as house arrest should be the norm, not the exception.” (see Proulx, para 117).

[46] Therefore, Mr. Phillippo will serve a 90-day conditional sentence, followed by 12 months’ probation. The entirety of the conditional sentence shall be served on house arrest. My decision on the balance of the conditions of the conditional sentence and probation order shall be provided orally, as will my decision regarding any ancillary orders.

Released: November 2, 2022 Signed: Justice D. Ishak