Court File and Parties

Court File No.: CR-14-00000096 Date: 2017-04-25 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Giuseppe DiMichele, Defendant

Counsel: Ms. Alexander, for the Crown Mr. Pickard, for the Defendant

Heard: February 13, 14, 15, 2017

Publication Restriction Notice

Pursuant to subsection 486.4 of the Criminal Code, there is a ban on disclosing the name of any person involved in the proceedings as a party or a witness or any information likely to identify any such person. This judgment complies with this restriction so that it can be published.

Reasons for Sentence

Edwards J:

Introduction

[1] After a trial, Mr. DiMichele was found guilty of sexual assault and touching for a sexual purpose a person under the age of 16. The Crown seeks a penitentiary sentence in the range of three and a half to four years. Mr. Pickard, on behalf of Mr. DiMichele, suggests the appropriate sentence would not call for incarceration in a penitentiary.

The Facts

[2] At the time of the sexual assault in August 2013, J.W. was 15 years of age. By her own admission, despite her age she was a user of cocaine, marijuana and alcohol. Regardless of her abuse of alcohol and drugs, no one had the right to take advantage of her.

[3] J.W. had only recently become acquainted with Mr. DiMichele, as a result of an introduction made by one of her friends who had suggested that she could get her a job with Mr. DiMichele. The evidence at trial was somewhat contradictory as to the amount of time that J.W. had known Mr. DiMichele, but on any account it was less than a few days. On at least one of those days J.W. was in an employee/employer relationship.

[4] As to the events of August 11, 2013, the evidence at trial established that J.W. and her friend had entered a hotel room ostensibly to pick up what they were owed for the work that they had performed for Mr. DiMichele. After J.W.’s friend had left the hotel room and after J.W. herself had left the hotel but returned, the evidence establishes that J.W. woke up and found Mr. DiMichele on top of her having sexual intercourse. J.W. ran out of the hotel room completely naked, as evidenced by a video that was introduced at trial. The video evidence established that J.W., not surprisingly, was upset to the point of being hysterical. J.W. remained outside of the hotel room in a complete state of undress for about a minute, ultimately returning to the hotel room and leaving approximately three and a half minutes later with nothing on except a shirt.

[5] J.W. was subsequently observed not far from the hotel collapsed under a tree by someone with whom she had a passing acquaintance. The witness testified that J.W. was crying and screaming, and stated spontaneously that “he raped me”.

[6] With the aforementioned evidence, as reviewed in more detail in my Reasons for Decision of February 17, 2017, I found Mr. DiMichele guilty of sexual assault and touching for a sexual purpose a person under the age of 16 years. Crown counsel acknowledges that the Keinapple principle applies, and requests that a conviction be registered on count two and that count one be conditionally stayed.

The Circumstances of Mr. DiMichele

[7] Mr. DiMichele is 46 years of age and has been separated from his wife essentially from the time of his arrest in relation to these charges. Mr. and Mrs. DiMichele have three children ranging in age from 11 to 18 years of age. Prior to his marriage with Mrs. DiMichele he was involved in a prior relationship, as a result of which he has a 22 year old son who periodically works with Mr. DiMichele and who was also in the hotel room at the time of the sexual assault, albeit not in the actual bedroom.

[8] Mr. DiMichele has a prior criminal record, albeit a criminal record that does not include any prior convictions for sexual assault or any offences of violence. His record includes a number of convictions for drinking and driving offences, as well as theft over $5,000.

[9] At the time of his arrest Mr. DiMichele was released on bail, one of the conditions of which was that he not consume alcohol. Mr. DiMichele appears to have some difficulty complying with Court orders, particularly those as they relate to alcohol, given that subsequent to his release on bail he was arrested in relation to another drinking driving offence. He was also arrested for breaching his bail conditions as it relates to the charges for which he now stands convicted.

[10] Subsequent to the conviction in relation to the breach of recognizance and the drinking driving charges, Mr. DiMichele was released on very strict bail conditions which only allowed Mr. DiMichele to leave the residence where he was living while in the presence of a surety, or if he was working. As a result of those strict bail conditions, Mr. Pickard suggests that Mr. DiMichele should be given some credit when it comes to the overall sentence to be imposed by this Court.

[11] A review of the Presentence Report, filed as Exhibit 1 on the sentencing hearing, leaves little doubt that Mr. DiMichele has had an issue with alcohol abuse and infidelity over some considerable period of time. The alcohol abuse would appear to be well reflected in Mr. DiMichele’s criminal record. It may very well be that one of the medical conditions that Mr. DiMichele suffers from, and for which he has recently been treated, may be a result of alcohol abuse. I am specifically referring to treatment for chronic pancreatitis.

[12] Mr. DiMichele appears to come from a close knit family, many of whom – including Mr. DiMichele work in a family demolition business. There is nothing in the Presentence Report, nor in the evidence that I heard, that would suggest that Mr.Michele is anything but a hardworking individual. A review of the Presentence Report has conflicting information with respect to the extent to which Mr. DiMichele has been a supportive husband and father since his matrimonial breakup. There is also conflicting evidence with respect to Mr. DiMichele being involved in romantic relationships with younger females many years his junior.

Aggravating and Mitigating Factors

[13] There are few mitigating factors that this Court would or should take into account. Mr. DiMichele was entitled to contest the charges before this Court and I do not take into account, in any way, the fact that there was no plea of guilty. Mr. DiMichele, as is his right, appears to continue to maintain his innocence, as reflected in the Presentence Report where the author notes that Mr. DiMichele “does not accept responsibility for the offence, remorse is not evident”. Remorse is not a factor in my decision.

[14] From a rehabilitation perspective the Presentence Report certainly portrays Mr. DiMichele in contrasting lights, depending upon whether the information came from his own family or from his wife. On all accounts, however, I do accept that Mr. DiMichele has a history of being a hardworking individual, albeit someone who appears to have issues with alcohol and younger females. With appropriate guidance and counselling, particularly as it relates to issues concerning alcohol and relationships with young women, Mr. DiMichele with a history of being a hardworking individual is someone who in my view has hope for rehabilitation in the future.

[15] The aggravating factors that this Court must take into account are those reflected in s. 718.2 of the Criminal Code (the “Code”), specifically the following:

a) That Mr. DiMichele committed the offence having abused a person under the age of 18; and

b) That there is evidence, as reflected in the Victim Impact Statement, that the offences had a significant impact on J.W., particularly taking into account her age; her personal circumstances, specifically her abuse of alcohol and drugs and her precarious financial situation.

[16] I also take into account as an aggravating factor that while this case does not involve a classic breach of trust; nonetheless J.W. had been an employee of Mr. DiMichele even if that relationship was only for a day or possibly three days. The fact remains that Mr. DiMichele knew that J.W. – based on her representations made to him at the time of her employment, was only 15 years of age.

[17] One can only speculate as to what motivated Mr. DiMichele to sexually assault J.W. in the early morning hours of August 11, 2013, but it is beyond doubt that he took advantage of a vulnerable young victim who was under the influence of both drugs and alcohol. The relatively young age of J.W.; her relationship to Mr. DiMichele as an employee; and the fact that she was under the influence of alcohol and drugs, are all aggravating factors that Mr. DiMichele knew of and that he took advantage of, on August 11, 2013.

Victim Impact Statement

[18] Filed as Exhibit 2 on the sentencing hearing was a Victim Impact Statement which appears to have been handwritten by J.W. J.W. appears to have taken some considerable time in collecting her thoughts, as evidenced from how she demonstrated that she was a child abuse survivor. Using each of the first letters of the phrase “child abuse survivor”, J.W. demonstrates some considerable insight into the situation that she has been placed, largely as a result of the actions of Mr. DiMichele.

[19] While I received no medical documentation to demonstrate the impact of the sexual assault on J.W., it is not difficult to accept her statement that she is suffering from what she describes as “really bad depression”. Her Victim Impact Statement indicates that she has been to hospital on five occasions to deal with her depression and use of drugs. She also notes that she been cutting herself and feels “very damaged, loss of control, shock, numbness and helplessness”. Unquestionably, anyone reviewing the Victim Impact Statement would come to the conclusion that the sexual assault has had an extremely distressing impact on J.W. that continues to this day. One can only hope that with the benefit of time and perhaps assistance from appropriate counselling, J.W. will be able to enjoy the life that lies ahead of her.

[20] In accordance with the provisions of s. 718.2 of the Code, I have taken into account the significant impact that the sexual assault has had on J.W. as a significant aggravating factor.

Analysis

[21] While there was no suggestion made during the course of argument on behalf of Mr. DiMichele that the sexual assault was not one accompanied by gratuitous violence, the fact still remains that sexual assault in and of itself is an act of violence. It is even more so an act of violence when it involves children. There can be no doubt that while J.W. was not below the age of 14; the fact is that even as a 15 year old girl she was still a child. The act of violence perpetrated by Mr. DiMichele as against J.W. was one which has had both a significant and profound physical and psychological impact.

[22] The overriding factors that this Court must take into account in sentencing Mr. DiMichele are factors of denunciation and deterrence. The crimes for which Mr. DiMichele has been convicted are serious crimes which had serious consequences for the victim. As I have already indicated, the aggravating factors present in this case are quite significant. While Mr. DiMichele may not have been in a true position of trust and this may not have been a planned event, nonetheless the evidence seems clear that Mr. DiMichele took advantage of the situation that was presented to him on the evening of August 11, 2013.

[23] Both counsel in their able submissions provided me with various sentencing authorities. In R. v. Colbourne, 2013 ONCA 308, [2013] O.J. No. 2095 (C.A.), the accused was found guilty of sexually assaulting the complainant and received a sentence of 14 months imprisonment. This case involved a complainant who did not have the capacity to consent to sexual intercourse given her state of inebriation. The Reasons unfortunately do not reflect the age of the complainant, and in upholding the conviction and sentence the Court of Appeal noted that the trial judge was alert to the accused’s health condition and personal circumstances. The Court of Appeal did not interfere with the sentence, albeit the Court did indicate that the sentence was “at the low end of the range”.

[24] In R. v. J.R., 2008 ONCA 200, [2008] O.J. No. 1054, the accused and others were convicted of sexual assault in a situation where they took advantage of the complainant when she was incapacitated due to her level of intoxication. The Court of Appeal reduced the sentence from a two year penitentiary sentence to a sentence of two years less a day for one of the accused, and upheld the sentence of two years on the other accused.

[25] In J.R., supra, I note that the Crown at trial asked for a sentence of two years. I also note that one of the accused was of an aboriginal background and had no criminal record. It is also worth noting that in J.R. there was not the significant age differential between the accused and the victim. There was also no suggestion of any breach of trust.

[26] As with so many cases, the particular facts of the offender and the victim are important in coming to an appropriate sentence. Crown counsel referred me to a number of authorities from the Ontario Court of Appeal, including R. v. Rand, 2012 ONCA 731, 2012 O.J. No. 5061, where the Court of Appeal did not interfere with a sentence of four years imprisonment where the facts involved an accused who was 27 years of age and a victim who was 17 years of age. As with the facts before this Court, the victim was unconscious and therefore not in a position to provide consent. The accused had a prior criminal record which included convictions for crimes of violence, two of which related to domestic violence. Mr. DiMichele’s criminal record does not reflect a similar record of violence and as such Rand, supra, is somewhat distinguishable, although Mr. DiMichele was no different from the appellant in Rand who took advantage of a vulnerable, intoxicated young woman.

[27] In R. v. Thurairajah, 2008 ONCA 91, the Crown appealed a sentence of two years less a day where the facts involved the rape of a comatose victim. At the time of the appeal, the Court of Appeal noted that sexual assault did not carry a minimum period of incarceration. By the time Mr. DiMichele was involved in the sexual assault of J.W. the law had changed, and now s. 271 (a) of the Code provides that where a complainant is under the age of 16 the minimum sentence is a term of one year. In increasing the sentence in Thurairajah, supra, Doherty J.A. stressed the following in the context of explaining the need for a strong denunciatory sentence:

a. the age and vulnerability of the victim; and b. the significant emotional harm done to the victim.

While the accused in Thurairajah had what was described as “many positive features”, Doherty J.A. made clear that the objectives of denunciation were of primary consideration in ultimately increasing the sentence from two years less a day to three years. Ultimately, in coming to that conclusion Doherty J.A. also noted:

I wish to emphasize, however, that while I am satisfied that nine months incarceration is an appropriate sentence at this time, it would not have been appropriate at the time of sentencing. In my view, the appropriate range at the time of sentencing was between two years less a day and four years incarceration.

[28] The most recent appellant authority cited to me by Crown counsel was a decision of Epstein J.A. in R. v. H.S., 2014 ONCA 323, which involved a 24 year old accused who was convicted of unprotected vaginal intercourse with a complainant who was barely 15. The events in question took place in 1978 and were not reported to the police until 2010. The accused pleaded guilty to having sexual intercourse with a female person between 14 and 16 years of age, and illicit sexual intercourse with his foster daughter. The accused received a sentence of two years less a day, which was increased on appeal to three years. In her Reasons Epstein J.A., at paragraph 41, stated:

It is of paramount importance that children be protected from seducers and predators through sentences that emphasize the principles of denunciation and deterrence: R. v. D.D. (2002), 58 O.R. (3d) 788 (C.A.), at para. 34.

[29] I take from the comments of Epstein J.A. cited above that sexual assault on a 15 year old is in fact a sexual assault on a child. J.W. was a child, and in my view this is a most relevant consideration in ensuring that this Court emphasizes the principles of denunciation and deterrence as they relate not just to a child, but also a child who was vulnerable because of her state of inebriation as well as her age.

[30] The facts in H.S., supra, are distinguishable to the extent that the accused clearly was in a position of trust given that he was the victim’s foster parent. No such breach of trust occurred as between Mr. DiMichele and J.W. The facts are also distinguishable to the extent that in H.S. the accused entered a plea of guilty and did not have a prior criminal record.

[31] With all of the aforementioned facts and the principles in mind, I have concluded that the appropriate sentence in this case is in the range of three to four years. Unlike the facts in Rand where the accused had a prior criminal record involving crimes of violence, Mr. DiMichele does not fall into that category. The accused in Rand received a sentence of four years. A sentence of four years for Mr. DiMichele would not reflect the same degree of gravity of prior criminal conduct as found in Rand. The accused in H.S. had no prior criminal record and had entered a plea of guilty. The facts in H.S., however, involve a much more serious breach of trust than occurred in the situation between Mr. DiMichele and J.W. The Court of Appeal, nonetheless, saw fit to impose a sentence of three years. The appropriate sentence in this case, therefore, lies somewhere between three and four years. I have concluded that the principles of denunciation and deterrence are best served weighing all of the aggravating factors set forth above, with the imposition of a sentence of 40 months.

[32] As to whether or not Mr. DiMichele should receive any credit for what was described as the restrictive bail conditions that he lived under, Mr. Pickard suggests that the appropriate credit for that time period is somewhere in the range of 10 to 20 percent. The considerations that this Court must take into account are set forth in R. v. Downes, 2006 O.J. No. 555, at para. 33, where Rosenberg J.A. stated:

Accordingly, I conclude that time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for presentence house arrest. I agree with Ms. Paine that it is incumbent on the sentencing judge to explain why he or she has decided not to take presentence house arrest into account… [Emphasis added]

[33] The initial bail conditions that Mr. DiMichele was released on were not, in my view, stringent. The only reason why Mr. DiMichele faced more stringent bail conditions arose solely as a result of his own actions in failing to abide by the terms of his release, which included an obligation not to consume alcohol. Not only did Mr. DiMichele consume alcohol while he was released on bail, he also chose to drive under the influence of alcohol. This resulted in his conviction for a drinking driving offence. Mr. DiMichele was the author of his own misfortune in ultimately facing house arrest, and in my view this is not an appropriate case for the Court to exercise its discretion to give Mr. DiMichele credit for that time period when he was under house arrest conditions, house arrest conditions that nonetheless allowed him to pursue his employment provided he was in the company of his surety.

[34] The sentence of this Court, therefore, is that Mr. DiMichele shall be incarcerated for a period of 40 months. As well, Mr. DiMichele shall be subject to a 10 year weapons prohibition. He shall provide a sample of his DNA and a Soira order shall issue for 20 years.

Justice M.L. Edwards

Released: April 25, 2017

NOTE: As noted in Court, on the record, this written decision is to be considered the official version and takes precedent over the oral decision read into the record. If there are any discrepancies between the oral and written versions, it is the official written decision that is to be relied upon.

Ontario Superior Court of Justice Her Majesty the Queen – and – Giuseppe DiMichele, Defendant Reasons for Judgment Justice M.L. Edwards

Released: April 25, 2017