ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-90000-637-0000
DATE: 2014/02/26

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JASON DE GIORGIO

Accused

Hafeez Amarshi, for the Crown

Reid D, Rusonik, for the Accused

HEARD: January 14, 2014

REASONS FOR SENTENCE

A.J. O’MARRA J.: (Orally)

[1] Jason De Giorgio was found guilty of possession for the purpose of trafficking contrary to s.5(2) of the Controlled Drugs and Substances Act, and possession of proceeds of crime, $350.00 contrary to s.354(1)(a) of the Criminal Code, after a Charter application brought to exclude evidence for breaches of his Charter rights under ss.8 and 9 was dismissed. Although Mr. De Giorgio pleaded not guilty at the outset of the trial he readily admitted that he was in possession of 16.63 grams of crack cocaine for the purpose of trafficking and only sought to litigate his Charter rights.

Circumstances of the Offence

[2] On Saturday, August 27, 2011, three police officers of the Community Response Unit in 23 Division of the Toronto Police Service were on uniform patrol in the area of Scarlett Road and La Rose Avenue an area they patrolled daily because of high criminal activity. On that occasion the officers observed a known drug addict, Raymond McNeil, at approximately 1:50 p.m. to pace back and forth at the corner of Arcade Drive and La Rose Avenue. The police stopped to speak with McNeil to find out why he was there and observed that he had in one hand a quantity of cash and in the other a tissue which contained a glass crack pipe. The officers let him go on his way but continued to observe him from a distance in their patrol car to see if anyone met up with him. A short time later police observed Mr. McNeil to walk up Arcade Drive to a dead end residential street, Adonis Court. A black Alaro motor vehicle driven by Mr. De Giorgio entered onto the court, stopped, Mr. McNeil entered into the front passenger seat.

[3] As Mr. De Giorgio began to drive away the police pulled their vehicle up in front of his. Mr. De Giorgio exited his vehicle to ask the officers what the problem was. One of the officers went to speak with Mr. De Giorgio towards the back of the vehicle and another looked into the open driver’s door and observed in the door pocket a baggie of crack cocaine later found to weigh approximately 9 grams, and a Zippo lighter, which on examination was found to be a digital scale. After Mr. De Giorgio was placed under arrest he was searched at the scene and found to have hidden another baggie of crack cocaine weighing 9 grams hidden down his pants. In addition, he was found to be in possession of $350.

The Circumstances of the Offender

[4] Jason De Giorgio is 30 years old. He has a partner, Laurie Ann Wilson, 27, currently pregnant with his third child. They have had an on and off relationship due to Mr. De Giorgio’s numerous involvements with the criminal justice system and periods of incarceration. He has a substantial criminal record which consists of the following:

1. May 31, 2000 – Toronto Youth Court – fail to comply with recognizance, time served (8 days)

2. October 12, 2000 – Toronto Youth Court – 1) obstruct peace officer; 2) unauthorized possession of prohibited or restricted weapon, probation 12 months

3. June 22, 2001 – Toronto Youth Court – 1) disguise with intent; 2) armed robbery, 42 days secure custody and 12 months open custody, and probation 18 months on each count concurrent, mandatory prohibition order s.20.1(1) YOA

4. October 10, 2003 – Toronto – 1) possession of restricted firearm with ammunition; 2) possession of a Schedule 1 substance, 6 months jail and probation 2 years on each count concurrent and a mandatory firearm prohibition, s.109 Criminal Code

5. December 1, 2005 – Toronto – 1) robbery; 2) possession of proceeds of property obtained by crime, 1 day jail and 13 months pre-sentence custody and probation 3 years on each count concurrent and mandatory firearm prohibition, s.109 Criminal Code

6. January 3, 2008 – 1) obstruct peace officer; 2) acknowledge bail in false name; 3) fail to comply with probation; 4) possession of marijuana, sentence 45 days concurrent each count

7. October 31, 2009 – 1) traffick in cocaine; 2) possession of cocaine for the purpose of trafficking, 15.5 months, 7 months pre-trial custody, concurrent on each count and s.109 firearms prohibition order for life

8. March 14, 2013 – 1) obstruct peace officer; 2) fail to comply with recognizance, 30 days jail, 37 days pre-trial custody, concurrent on each count.

[5] On the sentencing hearing, counsel for Mr. De Giorgio, Reid Rusonik, called the evidence of three witnesses, his sister, Tammy De Giorgio, his partner, Laurie Ann Wilson, and employer Vincenzo Albanez to outline for the Court his background and his rehabilitation efforts over the past 2 ½ years since his release on bail with respect to this matter.

[6] Tammy De Giorgio, 38, testified that Jason is the youngest of four siblings raised by their single mother. Tammy and her two other sisters have been successful progressing through school and all have carried on into responsible positions. She is a real estate agent. She observed that their younger brother, Jason, who was diagnosed at an early age with a learning disability, struggled through school. Eventually, as a teenager, he got into trouble with the law. Ms. De Giorgio stepped in time and again to bail him out in the hope that he would straighten himself out, but sadly, as she noted, he kept getting into more trouble. She testified that after his last arrest and release, a client and friend, Vincenzo Albanez agreed to act as a co-surety with Ms. De Giorgio. More important, he agreed to employ Jason in his company that manufactures and installs crown moldings and fireplace mantles.

[7] Ms. De Giorgio observed that in the past her brother could only obtain low-scale agency temporary jobs in warehouses or factories, which would last only for a few months at a time.

[8] Ms. De Giorgio testified she had little faith Jason would start to turn himself around. However, as a result of the opportunity given to him by Mr. Albanez, she started to see a remarkable change in in her brother. He attended work regularly, as he was required to do as a condition of his bail release. He progressed from doing manual labor and clean-up jobs to taking on increased responsibility of installing crown molding and fireplace mantles. Moreover, she observed that he displayed a sense of pride and confidence that she had never seen in him before, as he developed a marketable skill. Further, she observed that his relationship with his partner and children has improved markedly. She testified that over the last couple of years he has been more responsible, calm, and as she described “he is all about work and his family”.

[9] Mr. Albanez testified that Mr. De Giorgio has been a good employee over the past 2 ½ years. He has displayed a willingness to learn and progressed steadily. He is of the view that as an employee with his firm Jason has considerable potential.

[10] It is of significance that Mr. Albanez stated that he is willing to give Mr. De Giorgio, whom he has trained, his job back regardless of the length of time he is required to spend in custody.

[11] Ms. Laurie Ann Wilson, 27, is the mother of Mr. De Giorgio’s two children and she is pregnant with their third child. Ms. Wilson testified that she paid her way through college and became a social worker and then later as an accountant. Currently she is employed in the accounting department of a manufacturing company. She testified that she has had an on-again off-again relationship with Mr. De Giorgio largely because of his instability of having been in and out of jail and not being there for her or their children. Since Mr. De Giorgio’s release on bail, however, she has seen a marked change in him as a result of his employment with Mr. Albanez. She sees in him a motivation to work and new self-confidence, now that he has a trade and can support his family.

[12] Ms. De Giorgio, Ms. Wilson, and Mr. Albanez, all struck me as credible with respect to their observations of the significant efforts and resultant change in Mr. De Giorgio over the past 2 ½ years.

[13] At the conclusion of the sentence hearing Mr. De Giorgio took the opportunity to address the court and stated the following, in part,

“I’d like to thank my family, my sister, my wife, Vincenzo for giving me the opportunity that he gave me. I learnt something. These two years have been hard but I have learnt something, and regardless of what I have to do now I know when I come home I have something to go to. I’m not going to make the same mistakes again….I just to want to assure you that regardless of what happens today, Your Honour, I will go on the right path. I have been on the right path these past 2 ½ years and I have no intention whatsoever to deviate from that path regardless of what I have to do right now. My life has changed a lot in the last two years more than its changed in the last 28 years. I have something now. Before I – you know what I mean, I had pressure. Now I have direction, I have people around me that have opened doors for me, that have given me what I needed, and I just look forward to continuing that whenever I get around to coming back home…

[14] I found Mr. De Giorgio’s comment to the Court to have been a sincere expression of his realization that his life has improved with the support of his family and employer. Given the opportunity Mr. De Giorgio has demonstrated the potential for rehabilitation and reintegration as a responsible member of the community.

[15] It should be noted that his release on bail was not without incident. While on a strict house arrest bail release condition in March, 2013, Mr. De Giorgio failed to comply by being outside of the residence without one of his sureties accompanying him. He spent more than 2 months in custody as a result of the breach. Notwithstanding his breach and period of incarceration, Mr. Albanez agreed to continue to act as a co-surety and to employ Mr. De Giorgio on his release.

Position of the Parties

[16] The Crown seeks a custodial disposition in the range of 2 ½ to 3 years, followed by a period of probation of up to 18 months. Further, the Crown requests a s. 109 firearms prohibition order for life and an order under s. 487.05(1) of the Criminal Code for him to provide a sample of a bodily substance for DNA identification purposes.

[17] The Crown notes there are a number of aggravating factors. Mr. De Giorgio has a serious criminal record that displays increasing periods of incarceration, which has apparently done little to act as deterrence. He has related offences in his criminal record. He committed the offence for which he is being sentenced only a few months after being released from a sentence of more than 2 years for trafficking, and possession for the purpose of trafficking cocaine. In addition, he was in possession of 16.62 grams of crack cocaine, a significant amount for the purpose of commercial gain. There is no evidence that Mr. De Giorgio was motivated to sell cocaine as a result of being an addict and to support a habit. He was part of a distribution chain. He admitted to having a supplier and regular customers. The Crown submitted that the period of incarceration should be more than he received in the past.

[18] Defence counsel acknowledged that Mr. De Giorgio should be sentenced to a period of incarceration in order to reflect the sentencing objectives of deterrence and denunciation. However, he submits, the period of incarceration should be reduced in this instance to permit Mr. De Giorgio to continue with the rehabilitation efforts he has made. In the past, Mr. De Giorgio had no employment traction because he had no real opportunity at a good job, as he has now. Mr. De Giorgio’s prospects of rehabilitation are very good.

[19] The principle sentencing objective of deterrence can be met by a period of incarceration followed by a lengthy period of probation in addition to a community service order. Counsel emphasized that in Mr. De Giorgio’s case the sooner he can be returned to continue his employment the better chances he will have of not coming into conflict with the law and to be a contributing father to his children and partner to his spouse.

Sentencing Principles and Applicable Law

[20] I am guided by the sentencing principles and objectives set out in s. 718 and 718.1 of the Criminal Code, and as recited at s. 10 of the Controlled Drugs and Substances Act. Appellate Courts have repeatedly emphasized that because offences such as possession of crack cocaine for the purpose of trafficking are serious offences causing great harm in society courts must emphasize the principles of deterrence and denunciation. In R. v. Woolcock, [2002] O.J. No. 4927 the Ontario Court of Appeal stated in para. 8:

There is no disputing that crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society.

[21] Similarly, in R. v. Daya, [2007] O.J. No. 3865 the Ontario Court of Appeal stated at para. 18:

This court and the Supreme Court of Canada have time and time again elaborated on the perils of cocaine and the immeasurable harm it causes society.

[22] In Woolcock, supra, at para. 15, it was noted that the range of sentence for this type of offence appears to be one of 6 months to 2 years less a day. (See R. v. Madeiros, [2001] O.J. No. 5664 (SCJ) and the decision in R. v. Radassao, 1994 779 (ON CA), [1994] O.J. No. 1990 (OCA)). It was noted that sentences falling in the higher end of the range involved larger quantities of narcotics or offences committed while the accused was on probation for a similar offence.

[23] While deterrence and denunciation are the principle sentencing objectives to consider when an offender has been convicted of such an offence I am mindful that it is incumbent upon the court to consider all of the sentencing principles including the offender’s prospect for rehabilitation. The quantity involved, 16.62 grams, Mr. De Giorgio’s criminal record, including a similar offence and lengthy incarceration just prior to arrest on these matters warrants a period of incarceration beyond the range cited in Woolcock, Madeiros and Radassao. However, it was noted in Woolcock, at para. 13:

One of the dangers of imposing a lengthy term of imprisonment on facts such as these is that it could impair the rehabilitation and reintegration of this person as a responsible member of his community. This type of risk has been recognized by this court in R. v. Pearce (1974), 1974 1448 (ON CA), 16 C.C.C. (2nd) 369 (OCA). At p.371, Dubin J.A., dissenting stated:

It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.

[24] The position taken by the Crown is appropriate and in keeping with the sentencing objectives of deterrence and denunciation, and considering the aggravating factors in this case. Given Mr. De Giorgio’s criminal record and the seriousness of the offence would justify sentencing him to a period of incarceration beyond the range cited in Woolcock. However, the court must be concerned with ensuring that an appropriate balance is struck between the need for general deterrence and denunciation and the rehabilitation of the offender to ensure protection of society in the future. I agree with the position as advanced by defence counsel that general deterrence and denunciation can be achieved by imposing a period of incarceration as well as a period of probation, and community service order. As noted in Woolcock at para. 17, a shorter sentence is not intended to minimize the seriousness of the offence or the need for general deterrence and denunciation of the serious offence. Rather, it will provide the accused with an opportunity for rehabilitation while learning that the type of crime he has committed will not be tolerated.

[25] Even though Mr. De Giorgio committed a breach while on bail, after his release he continued to maintain his employment and to impress his skeptical sister and support his family. It is in the best interests of the community and the accused that he be given an opportunity to re-enter society and attempt to re-establish himself as a productive member of the community. The sooner he is able to resume his occupation the more likely it will be he will be able to pursue his new found trade and meaning in his life. I accept that Mr. De Giorgio appreciates he has much to lose if he falters again.

[26] In this instance, considering the aggravating factors and his rehabilitative efforts Mr. De Giorgio will be sentenced to a period of incarceration of 21 months. He should be given credit in the amount of 3 months for having been on house arrest with strict terms for more than 2 years.

[27] Mr. De Giorgio, as a result, is sentenced to a period of 18 months incarceration plus probation for 18 months. In addition to complying with the statutory terms, Mr. De Giorgio must perform 180 hours of community service at a rate of not less than 10 hours per month during the term of the probation order. Further, there will be a firearms prohibition order under s.109 of the Criminal Code for life. The $350 seized at the time of his arrest will be forfeited. In this instance, the Crown suggested the Court consider an order for taking samples of bodily substances for the purpose of DNA analysis, however, this is not a situation in which I consider the order to be necessary or appropriate.

A.J. O’Marra J.

Released: February 26, 2014

COURT FILE NO.: CR-12-90000-637-0000
DATE: 2014/02/26

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASON DE GIORGIO

Accused

REASONS FOR SENTENCE

A.J. O’Marra J.

Released: February 26, 2014