COURT FILE NO.: CR/15/70000/5950000 DATE: 20170605
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN - and - matthew cosmo deiaco
Counsel: C. Langdon, for the Crown M. Wyszomierska, for Mr. Deiaco
HEARD: March 8, 2017, May 25 and 26, 2017
Publication of Any Information Tending to reveal the identity of the Complainant Herein is Prohibited under s. 486.4(2.1) of the Criminal Code of Canada
kelly j.
REASONS FOR SENTENCE
[1] Mr. Matthew Cosmo Deiaco has pleaded guilty to several human trafficking and other related offences committed contrary to various sections of the Criminal Code, R.S.C., 1985, c. C-46. Specifically, Mr. Deiaco has been convicted of the following offences:
| Count | Offence |
|---|---|
| 2 | Trafficking in persons: exercising control for the purpose of exploiting Ms. K.M. contrary to s. 279.01(1) of the Criminal Code. |
| 3 | Receiving a material benefit knowing that it resulted from the commission of an offence contrary to s. 279.02(1) of the Criminal Code. |
| 7 | K.Ms. K.M. with intent to confine her contrary to s. 279(1)(a) of the Criminal Code. |
| 10 | Assault causing bodily harm on Mr. J.T. contrary to s. 267(b) of the Criminal Code. |
| 11 | Use an imitation firearm while committing an indictable offence contrary to s. 85(2)(a) of the Criminal Code. |
[2] Mr. Deiaco now appears before me for sentencing. Crown Counsel submits that the appropriate sentence is a global one of 9 years. Counsel for Mr. Deiaco submits that he should receive a global sentence of 6 years.
[3] Both counsel agree that Mr. Deiaco should be given credit for the time he has spent in presentence custody pursuant to s. 719(3.1) of the Criminal Code and R. v. Summers, 2013 ONCA 147. Counsel also agree that Mr. Deiaco should be subject to a lifetime prohibition of possessing weapons pursuant to s. 109 of the Criminal Code. Both Counsel also agree that Mr. Deiaco should provide a sample of his DNA and that he be subject to an order made pursuant to the Sex Offender Information Registration Act, S.C. 2004, c. 10 (“SOIRA order”) for life.
[4] Counsel for Mr. Deiaco submits that he should receive enhanced credit for the time he has been incarcerated in harsh conditions pursuant to R. v. Duncan, 2016 ONCA 754. Crown Counsel disagrees.
[5] I find that the sentence imposed should be a global one of 8 years in custody less time served pursuant to s. 719(3.1) of the Criminal Code, resulting in a remaining sentence of 4 years, 4.5 months to be served. Mr. Deiaco will be subject to a s. 109 order for life, a DNA order and SOIRA order for life. No credit will be given pursuant to R. v. Duncan.
[6] What follows are my reasons.
The Facts
[7] The facts were set out in an Agreed Statement of Facts. I have included them, almost in their entirety, to give context to these reasons:
(i) On or about Thursday January 8th, 2015 the complainant, Ms. K.M., was living in a shelter in the City of Toronto. She came to Toronto to enter into a drug rehabilitation facility. She lived in the rehabilitation facility for three months and was then asked to leave as she could not abide by the rules of the residence. She was unfamiliar with the city, had few friends and no family here.
(ii) While living at the shelter, Ms. K.M. was walking around downtown Toronto. She got lost when she tried to return to it. While she was looking for her shelter she approached Mr. Deiaco, whom she did not previously know. He was in a car. Ms. K.M. asked Mr. Deiaco if he could provide her with a ride to her shelter. Mr. Deiaco agreed and Ms. K.M. got into the passenger seat of the car.
(iii) While in Mr. Deiaco’s car, Ms. K.M. and Mr. Deiaco discussed where she was staying (at a shelter) and that she had been in a drug treatment program. Ms. K.M. asked if Mr. Deiaco could get her drugs. She told him that she would work for him if he could get her money and opiates. As a result of that conversation, Ms. K.M. believed that Mr. Deiaco would ‘keep her high’, that she would be making money, that Mr. Deiaco would get her a hotel and that they would all be living together. As such, she would have friends and people who would take care of her.
(iv) Ms. K.M. and Mr. Deiaco then picked up Mr. Deiaco’s friend, Mr. Sedonick Atkins. They all drove to Ms. K.M.’s shelter where Ms. K.M. picked up her belongings. The three then drove to Mr. Deiaco’s mother’s house for dinner.
(v) Later that night, Mr. Deiaco, Ms. K.M. and Mr. Atkins went to a friend of Mr. Deiaco’s. Percocets were obtained for Ms. K.M.. Ms. K.M. played video games with Mr. Atkins. Ms. K.M. wanted to take all 10 Percocets at once. Mr. Deiaco regulated Ms. K.M.’s access to the Percocet tablets. He would only provide Ms. K.M. with one or two a day for the first two days that they were together. Ms. K.M. was not pleased with this arrangement.
(vi) After leaving his friend’s house, Mr. Deiaco drove Ms. K.M. to a hotel. Ms. K.M. spent the night there with Mr. Atkins. The next day, Mr. Deiaco brought Ms. K.M. to Ms. Michelle Karabin’s home. While there, Ms. Karabin, at Mr. Deiaco’s direction, took pictures of Ms. K.M. Ms. K.M. was provided lingerie and was directed by Ms. Karabin about how to pose for the photos. Ms. Karabin took 10 photos and sent them to Mr. Deiaco. He sent back the best five. At Mr. Deiaco’s direction, Ms. Karabin drafted the content of an ad and posted it on backpages.com. The ads were paid for by a prepaid credit card that did not belong to Ms. K.M. The pictures posted show Ms. K.M.’s face despite the fact that she was advised that her face would not be depicted.
(vii) Ms. K.M. testified at the preliminary hearing that prior to her starting to work, Mr. Deiaco asked her to prove to him that she could do so. She was told that she had to go into the bathroom. Mr. Deiaco came in and Ms. K.M. gave Mr. Deiaco oral sex. Ms. K.M. testified at the preliminary hearing that she agreed verbally to perform oral sex on Mr. Deiaco, despite the fact that in her mind she didn’t want to do it. She felt like she had to say ‘yes’ so that she could access the drugs she had been promised by Mr. Deiaco.
(viii) Ms. K.M. then began to work for Mr. Deiaco. He told her to charge $120 for a half hour and $200 for an hour. When clients would call, the calls would come into Mr. Deiaco’s phone. Ms. Karabin would usually respond to the calls from clients. Mr. Deiaco or Mr. Atkins would respond to text messages to set up dates.
(ix) Over the next 5 days, Ms. K.M. saw approximately 3-5 clients a day. This included about 10 out-calls and one overnight appointment. When there was an out-call Mr. Deiaco would drive Ms. K.M. to and from it. After each call Ms. K.M. handed over all her earnings to Mr. Deiaco and at times to Mr. Atkins.
(x) When there were requests for sexual acts that she didn’t want to perform, Mr. Deiaco told her that if she wanted more money she should perform them.
(xi) Ms. K.M. described feeling trapped by Mr. Deiaco and that she had gotten herself into something bigger than she could handle. Ms. K.M. also described that she felt isolated: she had nowhere to go; no money and she didn’t know what to do. By the time she was into it, Mr. Deiaco was exercising a lot of control over her. She didn’t have her own money and she couldn’t exercise her own free will. She wasn’t getting the drugs that she had been promised. She stated that she was fearful of Mr. Deiaco. Additionally, she had not seen her boyfriend, despite the fact that she had been promised she could.
(xii) After about one week, Ms. K.M. decided that she no longer wanted to work for Mr. Deiaco and hand over all her money to him. The atmosphere of control caused Ms. K.M. to be afraid of Mr. Deiaco. Prior to leaving Mr. Deiaco, Ms. K.M. had not been subjected to a physical assault or any overt threats. However, she wasn’t receiving any of the drugs that she had initially been promised by Mr. Deiaco.
(xiii) On January 13th, Ms. K.M. made a plan to escape. She was driven to the Fairmont Hotel by Mr. Deiaco for an out-call. She went up to see the client and then left, telling the client she had to drop the money off to her driver. She then got into a taxi and made her way to the King subway station.
(xiv) After Ms. K.M. left Mr. Deiaco, Mr. Atkins and Ms. Karabin searched for her. They were unsuccessful. Ms. Karabin and Mr. Deiaco returned to the Queensway hotel. Later that night, Ms. Karabin’s friend, Ms. Carla Whyte, called Ms. Karabin. Ms. Whyte had previously worked in the sex trade. Ms. Karabin offered Ms. Whyte the opportunity to come to Toronto from Oshawa to work the ad that Mr. Deiaco had posted for Ms. K.M. The only stipulation was that Ms. Whyte would have to give some of the cash she earned to Mr. Deiaco as the calls were coming into his phone.
(xv) After Ms. K.M. left the Fairmont Hotel, she telephoned her boyfriend, Mr. J.T.. He came to meet her. They walked to the Best Western Primrose Hotel located at Carlton and Jarvis Streets. They spent the night at the hotel drinking and relaxing. The following evening, the two of them bought a cell phone where they posted a new ad on backpages.com. Ms. K.M. was desperate for money and given her circumstances, felt like this was her only option.
(xvi) After Ms. Whyte came to Toronto she started to work from the ad that had been posted on backpages.com for Ms. K.M.. She wasn’t getting many calls and decided to post her own ad. She did so, using her own pre-paid Mastercard. After posting her ad, Ms. Karabin and Ms. Whyte were scrolling through the ads on backpages.com. They came across the ad that Ms. K.M. had posted for herself. They showed the ad to Mr. Deiaco. He became angry and said “I can’t believe this girl is posting another ad. Did she think I wouldn’t see it?” He then went outside and made a telephone call. He returned from making the call and directed Ms. Whyte to call and book an appointment with Ms. K.M..
(xvii) That night Ms. K.M. received a call from a woman named ‘Carla”. Carla asked for an in-call. A date was arranged. At approximately 1:15 a.m., Carla knocked on the door to Ms. K.M.’s room. Almost immediately two males with black bandanas covering their faces, rushed into the room. Ms. K.M. identified one of the males as Mr. Deiaco. Upon entering the room, Mr. Deiaco punched Mr. J.T. once in the face.
(xviii) Mr. Deiaco then moved on to Ms. K.M. and grabbed her forcefully. He was yelling at her, “What did you think, I wouldn’t find you?” He violently shoved her. At one point Mr. Deiaco showed Ms. K.M. what appeared to be a black handgun, which he had stored in his waist band. He told her that she had to come with him or he would hurt her. After seeing what she believed to be a gun she begged him to shoot her. She didn’t want to go back with Mr. Deiaco. She didn’t know what he was going to do with her. She was scared that he might sell her to someone. Eventually, Mr. Deiaco told Ms. K.M. that she had to go with him or Mr. J.T. was going to “get it”. Out of a desire to prevent any further assaults on Mr. J.T., Ms. K.M. collected her belongings at Mr. Deiaco’s direction. She said goodbye to Mr. J.T.. Mr. Deiaco grabbed her by her sleeve and escorted her out of the room.
(xix) While Mr. Deiaco was with Ms. K.M. in the hotel room, the other unidentified male was severely assaulting Mr. J.T.. Mr. J.T. recalled the person hitting him and saying “you’re playing with the big boys now”. As a result of the assaults in the hotel room, Mr. J.T. sustained multiple mildly displaced fractures through the anterior and lateral walls of his maxillary sinus (the portion of the sinus directly to the side of the nose) and his left bony orbit (the eye socket). There were also minimally displaced fractures through the floor of the left orbit (eye socket) involving the left infraorbital canal and foramen.
(xx) Before Mr. Deiaco left with Ms. K.M., there was a conversation between him and the other male about what they should do about Mr. J.T.. It was decided that they would leave him at the hotel. The other male hog tied Mr. J.T.’s hands and feet with the phone cord from the hotel. Mr. Deiaco took Ms. K.M.’s lap-top and two cell phones and a number of Mr. J.T.’s belongings. He left the hotel room with Ms. K.M..
(xxi) Mr. Deiaco then took Ms. K.M. down the stairs of the hotel and put her into the trunk of his car. After putting Ms. K.M. into the trunk, Mr. Deiaco got into the driver’s seat and turned the radio up. Mr. Deiaco, Ms. Karabin, Ms. Whyte and the unknown male drove for approximately 20 minutes until they reached the Queensway Motel. When they arrived at the Queensway Motel, Mr. Deiaco took Ms. K.M. out of the trunk and took her inside the motel. Ms. K.M. was instructed to go to the bathroom. In the bathroom Mr. Deiaco apologized to her and told her that she had to apologize to Ms. Karabin because of how he acted with her after Ms. K.M. ran away. Mr. Deiaco then told everyone to gather their belongings as they couldn’t stay at the motel.
(xxii) Mr. Deiaco then drove Ms. K.M., Ms. Karabin and Ms. Whyte to The Deluxe Inn where he told Ms. K.M. that she should get some sleep as she was going to continue working for him. He also made her give him her Facebook password so that Ms. Karabin and Ms. Whyte could delete her account so she couldn't contact anyone. Ms. K.M. went to bed as instructed.
(xxiii) An investigation was commenced and police managed to track the location of Ms. K.M.’s phone as a result of a 911 call made by Mr. J.T.. Police located Ms. K.M. and the three co-accused in room 103 of the Deluxe Inn.
(xxiv) As a result of what happened in the hotel room, Ms. K.M. sustained the following injuries: scratches on her face; scratches on her eye, pain in her head and a cut and bruised lip.
[8] These are the facts upon which Mr. Deiaco is being sentenced. I will now consider his background.
Mr. Deiaco’s Background
[9] Mr. Deiaco is 32 years of age. He was raised by his mother - Mr. Laurie Grosz.
[10] The Court is advised that Mr. Deiaco was diagnosed with Attention Deficit Disorder at an early age. His father was not supportive which resulted in abuse. His parents separated when Mr. Deiaco was 12 years of age. His mother returned to school to study nursing while Mr. Deiaco cared for his brother and sister who were 5 and 6 years of age at the time.
[11] Mr. Deiaco is very close to his sister. He communicates with her both in writing and by telephone.
[12] Prior to going into custody, Mr. Deiaco had a tattoo business at Eglinton and Caledonia Streets in Toronto. It was operational for approximately 2 years. He is passionate about this business which is clear from an observation of Mr. Deiaco. He has many tattoos, including two on his eyelids that say: “Bless Me” and he wishes to continue the business in the future.
[13] Prior to the tattoo business, he worked in construction. He did so for approximately three years. Mr. Deiaco has a welding accreditation that he has used to obtain employment. He hopes to use that accreditation to get a pro-social job.
[14] Mr. Deiaco’s mother provided a letter to the Court. In it, she describes her son as a “kind man with a great sense of humour”. Mr. Deiaco’s mother believes that Mr. Deiaco has turned the corner and wishes to lead a pro-social life. His mother says that she will support him.
[15] The Court is advised that the abuse that Mr. Deiaco suffered at the hands of his father was exacerbated by being sexually abused as a small child as well. His parent’s separation, as well as taking responsibility for his brother and sister proved to be difficult and Mr. Deiaco started getting into trouble with the law.
[16] Mr. Deiaco has a significant criminal record commencing in 2000. He has 15 entries as a youth and 54 entries as an adult. The offences range from property related crimes, to assault and offences against the administration of justice. The offences have been committed in various jurisdictions, including: Kitchener, Cambridge, Barrie, Orillia, Milton, Kingston, Ottawa, Napanee and Toronto. He has served many different types of sentences, including a sentence in the penitentiary. There are no related offences, most deal with property. I have attached a list of Mr. Deiaco’s criminal entries as Appendix “A” to these reasons.
[17] Since being incarcerated for these offences, Mr. Deiaco has been found guilty of approximately 27 infractions resulting in various punishments including segregation. The Court knows little of the reasons for the misconduct findings. However, the Court is aware that Mr. Deiaco has been segregated on two occasions at the Toronto East Detention Centre. On the first occasion, he was segregated 1 day for threatening a correctional officer. In March 2017, he pled guilty to possessing contraband and was segregated for 10 days. That said, he has also made positive strides while incarcerated.
[18] While in custody most recently, Mr. Deiaco has obtained certificates of completion for the following programs: “Managing Stress Educational Session”, “Maintaining Employment Education” and “It’s a Gamble”. He has also completed the “Gospel Echoes Team Home Bible Studies” and a “Centennial College Introduction to Psychology” course. Lastly, he participated in the New Life Correspondence School completing the following courses: “Greatest Man Alive”; “God and the Bible”; “Studies in Chr. Living 1”; “A Lion and Lamb”; and “Completion of 5 Bible Courses”.
[19] On November 10, 2016 Mr. Deiaco completed an Introduction to Psychology course through Centennial College. He obtained a “B” grade.
[20] Mr. Deiaco has been subject to several days of lockdown while incarcerated. From June 22, 2015 to June 24, 2016, he was housed with two inmates for 59 days or 15.99% of his time while incarcerated at the Toronto East Detention Centre. The cells are not meant for three inmates.
[21] While incarcerated on these charges as well, Mr. Deiaco was interviewed by a reporter from The Toronto Star. It was videotaped and conducted after his preliminary hearing on this matter. Crown Counsel played the tape during the sentencing portion of this proceeding. It provides some evidence about his background and his involvement in the sex trade business. She sought a ruling that the videotape be admissible. Counsel for Mr. Deiaco opposed.
[22] Following a review of the videotape, I concluded that the tape was admissible pursuant to the reasoning set out in R. v. Edwards. Crown Counsel was explicit, and I accept, that she did not want the videotape admitted for the purpose of increasing the punishment to Mr. Deiaco for these crimes. Further, I accept that the videotape was not to be admitted to extract some form of punishment for any untried and uncharged offences referred to during the videotape. The purpose of admitting the videotape was to provide some insight into Mr. Deiaco’s background and character as they relate to the objectives of sentencing. The seven principles to be considered in R. v. Edwards are satisfied for admissibility.
[23] I find that there is a nexus between the evidence on the videotape and the offences before the Court. Mr. Deiaco speaks about managing sex trade workers during his interview and that he has been engaged in such business since age 16. He was so involved up to the time of this incident. There are similarities between the evidence on the videotape and the offences for which Mr. Deiaco has been convicted: he was managing sex trade workers in both cases and bragging about his business model during the interview. He speaks of selling the vulnerable victims a dream and changing ownership of them. Mr. Deiaco has no difficulty in defending the allegations in the evidence: he voluntarily provided the interview to the reporter and said nothing about the content of the interview during this proceeding. For example, he did not say: “The content is untrue. I was just bragging to the reporter to give her a good story.” I found that the sentencing hearing would not be unduly prolonged: the statement was a little over one hour and no other evidence was called. Submissions were brief. I am not persuaded that the focus of the sentencing would be diverted. Mr. Deiaco is being sentenced for the charged offences, nothing more. Mr. Deiaco did submit evidence of good character in the form of a letter from his mother and certificates of accomplishment while incarcerated. Lastly, the evidence of the videotape is cogent. Mr. Deiaco appears articulate and the content is easily understood. He was responsive to the questions.
[24] As stated above, the videotape is one wherein Mr. Deiaco provides an explanation as to how he got into the sex trade business and his reasons therefore. Amongst other things, he said the following:
a. Mr. Deiaco got into the sex trade business at age 16. Prior to that, he was in the business of stealing cars and selling them (i.e., working in a “chop shop”). His preference for more of an “adrenaline rush” led him to stealing transport trucks. He says that he “grew up” and “became a man” the day his partner in crime took him to one of his houses and there were ten girls working in the sex trade business for him.
b. Mr. Deiaco learned about the business of managing sex trade workers and thereafter got into it himself. He went from earning “chump change” (in the chop shop business) to “house money” (from the sex trade business). He said: “You [sic] making a thousand dollars for a car to making a thousand dollars off one person a day. You got four women, that’s four grand, minimum. Three grand minimum a day. Do the math. Could buy a pretty big house in a year. Sometimes in a month if you have four women, you make seventy thousand dollars.”
c. Mr. Deiaco said that he does not love his workers and added: “I love my money”. Since age 16, Mr. Deiaco has had more than a dozen women working for him. The women pay him for travel, protection and care. The split of earnings is usually 60/40 (60% to Mr. Deiaco and 40% to the sex trade worker). Some of Mr. Deiaco’s workers would earn $1,000 to $3,000 per day.
d. Mr. Deiaco talks about “the illusion”. The illusion is that he tells his workers that he cares for them because some are “broken” and by showing them he cares, it gives them confidence. He says that he respects them, but he does not love them. He “sells them a dream” – they can earn money to have a wedding, get a house, go to school.
[25] I will now turn to the legal principles that must be considered on sentencing.
The Law
[26] In determining an appropriate sentence, regard must be had to the sentencing objectives in s. 718 of the Criminal Code, which provides as follows:
- The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[27] The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i) to (iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d) and (e)). See: R. v. Nur, 2011 ONSC 4874, aff’d. 2013 ONCA 677, upheld 2015 SCC 15, [2015] 1 SCR 773.
[28] Pursuant to s. 718.1 of the Criminal Code, "[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender". Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. See: R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 80.
[29] Both Counsel have provided cases in support of their positions. Crown Counsel provided the following:
- R. v. A.S.: Quigley J. imposed a sentence of 13 years on A.S. who was convicted of human trafficking and related offences arising from the procurement of a female adult for a prolonged period of time. The complainant was described as a “troubled indigenous young person in a vulnerable situation” when she met A.S. They had a romance and during that time, the complainant worked as a prostitute, turning her earnings over to A.S. He controlled and assaulted her gratuitously. 2017 ONSC 802.
- R. v. Miller: Hill J. sentenced Mr. Miller to 22 months in addition to two years he had spent in custody following a plea of guilt. Mr. Miller pleaded guilty to 10 counts of keeping a common bawdy-house and living off the avails of prostitution. He had a criminal record with 19 convictions, although none were prostitution related.
- R. v. Whitlock: The Ontario Court of Appeal reduced Mr. Whitlock’s sentence of eight years to six years. Mr. Whitlock had pleaded guilty to robbery and kidnapping. The Court of Appeal described the offences as “horrendous” and referred to Mr. Whitlock’s “terrible record”. 2014 ONCA 470.
- R. v. Patterson: Mr. Patterson was convicted by a judge and jury. He was given a sentence of seven years for procuring the complainant to have illicit intercourse, living off the avails of prostitution and uttering threats. Additionally, after the complainant gave a statement to police, Mr. Patterson and two co-accused kidnapped her, held her against her will and forced her into street prostitution. The Court of Appeal upheld the sentence of seven years. .
- R. v. McFarlane: Durno J. sentenced Mr. McFarlane to eight years in custody following a plea of guilt to two counts of kidnapping using a firearm and two counts of human trafficking. (A consecutive sentence of nine months was given for dangerous driving.) Mr. McFarlane confined two complainants for hours and they were terrorized. The complainants were vulnerable and Mr. McFarlane used the firearm for threatening purposes. 2012 ONSC 6566.
[30] The cases provided by Crown Counsel are persuasive in demonstrating that a global sentence of 9 years for these offences appears reasonable. There is a mandatory 1-year sentence for the offence of possessing an imitation firearm.
[31] Counsel for Mr. Deiaco provided cases in support of the defence’s position as well. They are summarized as follows:
- R. v. Bennett: Mr. Bennett was convicted of several prostitution related offences. The offences involved three female complainant’s under the age of 18. They included controlling a complainant to have her engage in prostitution as well as living off the avails of prostitution and procuring. The Court of Appeal imposed a sentence of six years, describing the offences as “despicable” and holding that Mr. Bennett “deserved to be severely punished”. However, the Court held that an eight-year sentence was too high as it failed to reflect the principle of totality and did not give adequate consideration to factors that favored Mr. Bennett. .
- R. v. Byron: Mr. Byron was sentenced to six years after he was convicted of human trafficking offences. The Court found that Mr. Byron had lured the 17 year-old victim into the city and forced her to perform sex acts for money with more than 100 men. He used force to make her comply and he kept most of the money. 2014 ONSC 990.
[32] What these cases demonstrate is that sentencing a person such as Mr. Deiaco, is a very individualized process. There is no such thing as a uniform sentence for a particular crime. Bearing this in mind, I will now turn to my analysis leading to my conclusion regarding the fit sentence.
Analysis
[33] Crown Counsel submits that the starting point for its global position that a 9-year sentence be imposed is the kidnapping charge. Counsel submits that Mr. Deiaco should be sentenced to 8 years for the kidnapping offence. That should be followed by one additional year for possessing the imitation firearm. All other sentences would be concurrent. In support of her position of 8 years for the kidnapping offence, she relies, in particular, on the case of R. v. McFarlane referred to briefly above. In my view, the McFarlane case can be distinguished from the case at bar.
[34] Mr. McFarlane pleaded guilty to two counts of kidnapping using a firearm and two counts of human trafficking which are relevant to this analysis. (Mr. McFarlane also pleaded guilty to dangerous operation of a motor vehicle). Mr. McFarlane was in a dating relationship with one of the victims, A.C. He moved in with A.C., uninvited. When asked to return a duplicate set of keys for the home, he refused.
[35] Mr. McFarlane then began a relationship with the second victim, V.V. V.V. became annoyed because she had seen Mr. McFarlane with another woman. They argued and Mr. McFarlane produced a firearm.
[36] Shortly after his argument with V.V., Mr. McFarlane showed up at A.C.’s home. He made her leave the home at gunpoint. Mr. McFarlane advised A.C. that they were going out of town and that she should bring her “work clothes”. (A.C. was a dancer in a strip club.) When A.C. resisted, Mr. McFarlane tapped her on the head, a number of times, with the barrel of the firearm, suggesting that he would kill her if she did not cooperate. V.V. managed to flee.
[37] For the next 24 hours, Mr. McFarlane drove around with A.C. making various stops. A.C. believed that she could not leave the car for fear of repercussions. Eventually, Mr. McFarlane found and retrieved V.V. A.C. was in a second car driven by another person with the firearm in the glove box.
[38] Eventually both cars arrived in Scarborough. V.V. had tried to escape. When V.V. tried to do so, Mr. McFarlane put the firearm to her neck, pulled the trigger several times and told her that she had to “work” for him. If she did not work as a prostitute for him, he would “do her” or shoot her. She agreed, the firearm “clicked” but did not fire.
[39] Eventually both victims were able to get away. The police were called. Mr. McFarlane tried to flee and was followed by a marked police car. Mr. McFarlane was driving at a high rate of speed so police did not continue their pursuit. Mr. McFarlane was arrested the following day.
[40] As I have stated above, Mr. McFarlane pleaded guilty. Justice Durno imposed a global sentence of 8 years concurrent for two counts of human trafficking and two counts of kidnapping with a firearm.
[41] There are similarities between McFarlane and the case at bar. The duration of the confinement is aggravating and the victims were terrorized. Both Messrs. McFarlane and Deiaco have criminal records (although Mr. Deiaco’s is significantly longer). The victims were vulnerable and physical violence was used.
[42] Unlike Mr. McFarlane, however, Mr. Deiaco did not use the firearm in the way that Mr. McFarlane used it in waving it during the incident and pulling the trigger to suggest he would use it in the future. This, in my view, is a significant difference, as well as the fact that Mr. McFarlane effected violence on the two victims. In my view, something less than 8 years is warranted for the kidnapping of Ms. K.M. by Mr. Deiaco – although not much.
[43] The primary sentencing objectives in a case such as this are denunciation and deterrence. The totality principle is also of significant importance. I consider the following to be the aggravating factors in relation to Mr. Deiaco’s circumstances:
a. There is nothing significantly mitigating about the offences themselves. In respect of the human trafficking offence, Mr. Deiaco exercised a considerable degree of control over Ms. K.M.. He acted as her driver, he controlled the types and pricing of the sexual acts to be provided. He assisted with the advertising on backpages.com and fielded the calls. He isolated her by giving her no money and little control over her life. He lied to her in failing to provide the drugs she desperately wanted and that motivated her involvement with Mr. Deiaco. She was emotionally and financially dependent on Mr. Deiaco. He took all of the money that Ms. K.M. earned.
b. When Ms. K.M. tried to escape from Mr. Deiaco, she paid a heavy price. Mr. Deiaco set up a “date” with Ms. K.M., suggesting she could earn money for providing sex. He armed himself with what Ms. K.M. believed was a firearm, took his associates with him, went to a hotel room executing violence on both she and her boyfriend, Mr. J.T.. She watched her boyfriend get beaten before she was put in the trunk of a car. She believed she was going to be sold as a slave. She wanted him to kill her. Mr. Deiaco, after that, made her delete her Facebook page to isolate her further and sent her out to work.
c. Despite her age at the time (27), Ms. K.M. was vulnerable. She was drug dependent and in Toronto with few friends and no family. Ms. K.M. was easy prey for Mr. Deiaco – she needed drugs and he could provide them, at a price.
d. Ms. K.M. was exploited for six days. Mr. Deiaco had induced Ms. K.M. into his business model with the promise of drugs, a place to stay, steady business and companionship. To test out her skill, Mr. Deiaco demanded that Ms. K.M. perform oral sex on him before sending her out to paying clients. The clients paid but the monies went to him, not her.
e. The incidents have had a significant impact on Ms. K.M. which is outlined below.
f. Mr. Deiaco has a significant criminal record, including offences of violence. He has been to the penitentiary before although not for related offences.
g. Mr. Deiaco has be found guilty of 27 instances of misconduct while incarcerated for these charges. He has been sentenced to 180 days in segregation as a result of these findings.
h. Ms. K.M. had to testify at the preliminary hearing.
i. In the video, Mr. Deiaco has demonstrated no insight into his behavior or the impact it has had on his victims.
j. There is nothing to indicate that he will not be a danger to society. He has no pro-social network other than his mother and sister.
[44] Ms. K.M. has provided a victim impact statement. She advises that her life has changed in ways that Mr. Deiaco will never know. Although she lives in a small and isolated community, she lives in fear that she is still not out of reach of Mr. Deiaco. She remains afraid for both herself and her family.
[45] The immediate impact of the offences on Ms. K.M. was significant. She advises that she used narcotics that she had not used before. She attempted suicide and was placed in a psychiatric hospital. She remained there for approximately 6 weeks.
[46] Ms. K.M. concluded her victim impact statement as follows:
I don’t think I’ll ever be the same after what Deiaco did to me. I will always be anxious when there is a knock at the door, I will always wonder if he is going to send someone to hurt me, I will never have a sense of peace again, because of Deiaco. [sic]
[47] It is obvious that the impact of these offences on Ms. K.M. was instant and long lasting, perhaps for a lifetime.
[48] I consider the following to be the mitigating factors:
a. Mr. Deiaco does have some family who remain supportive. He was subject to a difficult upbringing.
b. Mr. Deiaco was assaulted by his father who abused both him and his family. His mother only separated from his father after 12 years. He suffered abuse during this time. His siblings were 5 and 6 years of age on separation.
c. There are major hurdles that Mr. Deiaco has dealt with in his life. He was the subject of sexual abuse.
d. Mr. Deiaco pleaded guilty which is a sign of remorse. It saved court time (approximately 1 month) and resources. The plea was entered before a trial date was even set.
e. Ms. K.M. was not required to testify at trial and relive the horror of these events. Mr. J.T. was spared the necessity of testifying as well.
f. When given the opportunity at the end of the sentencing hearing, Mr. Deiaco did apologize to Ms. K.M. and to the Court for his conduct.
g. While incarcerated, Mr. Deiaco has been in a facilities where lockdowns occurred due to staff shortages. He was triple bunked for 59 days.
[49] Considering these factors, I will now turn to a consideration of the fit sentence.
The Fit Sentence
[50] In all of the circumstances, I find that the appropriate sentence is a global one of 8 years, less credit for presentence custody. I find that a reduction of one year from the sentence proposed by Crown Counsel is warranted, particularly because of Mr. Deiaco’s plea of guilt. The plea saved one month of court time in a post Jordan, 2016 SCC 27 era where court space is valuable. More importantly, it saved the necessity of the two victims of these crimes from having to testify.
[51] Mr. Deiaco is entitled to a reduction in sentence pursuant to R. v. Summers as agreed to by Counsel. I will not give Mr. Deiaco credit for the time he has spent subject to “harsh conditions” while incarcerated pursuant to R. v. Duncan. There is no evidentiary basis to grant such credit.
The Summers Credit
[52] Mr. Deiaco will be given credit for time spent in pre-sentence custody in accordance with s. 719(3.1) of the Criminal Code and R. v. Summers. Mr. Deiaco has been in custody since January 15, 2015. As such, he has spent 873 days in custody (or 2 years, 4 months and 22 days). Enhanced at 1.5 days for each day spent in presentence custody, Mr. Deiaco will be given credit for 1309.5 days (873 days +436.5 days = 1309.5days) or a 3 years, 7 months and 14 days.
[53] When the Summers credit is considered, Mr. Deiaco is required to serve another 3 years, 4.5 months in custody.
The Duncan Credit
[54] In certain circumstances, particularly when harsh conditions prevailed during presentence incarceration, mitigation greater than the 1.5 day credit set out in s. 719(3.1) of the Criminal Code may be appropriate. In considering whether any enhanced credit should be given, the court will consider the conditions of the presentence custody and the impact of those conditions on the defendant. If the court finds that there is an adverse effect on the defendant flowing from the presentence conditions, the sentence can be reduced further to reflect the added mitigation for the conditions of the presentence incarceration. R. v. Duncan, 2016 ONCA 754 at paras. 6 and 7.
[55] I find that Mr. Deiaco is not entitled to enhanced credit for the alleged harsh conditions of his presentence incarceration. Mr. Deiaco has been incarcerated in three facilities since his arrest: The Toronto South Detention Centre, The Toronto East Detention Centre and The Central East Detention Centre. During that time, records show that the facilities in which he was incarcerated were subject to 244 lockdowns (full and partial), mainly as a result of staff shortages. For 59 days, Mr. Deiaco was triple bunked.
[56] In most situations, the conditions of the lockdowns might be considered harsh and the impact significant. If those two preconditions are met, some increased credit may be given to the inmate. Based on the submissions and evidence (or lack thereof) before me, I am unable to conclude whether the impact of such lock downs affected Mr. Deiaco negatively.
[57] Since being incarcerated for these offences, Mr. Deiaco has been subject to 27 findings of misconduct. Of those infractions, 14 were committed in The Toronto South Detention Centre; 11 in the Toronto East Detention Centre and 2 in the Central East Detention Centre. He has been sentenced to 180 days in segregation. It is believed that he spent, at least, 90 days in actual segregation.
[58] I am uncertain of the specific reasons for the findings of misconduct. However, I am advised by The Toronto East Detention Centre that the two of the findings of misconduct were for disrespecting an officer and possessing contraband. Mr. Deiaco pleaded guilty to possessing the contraband.
[59] I recognize that many of the lockdowns, in the Toronto South Detention Centre in particular, were as the result of staff shortages but I am uncertain as to what prejudice was caused to Mr. Deiaco. No evidence was provided in that respect and Mr. Deiaco made no comment about the effects of those conditions on his health and progress when asked to address the court. I am uncertain as to whether Mr. Diaco was in the general population and affected by the lockdowns or whether he was in segregation at the time.
[60] I cannot ignore the 27 findings of misconduct when considering the additional time that might be granted for credit. Further, I recognize that Mr. Deiaco took advantage of the programs offered. It is clear from his progress that he was successful regardless of the state of the facility (lockdown or not).
[61] For these reasons and on the record before me, I am not persuaded that Mr. Diaco was negatively affected by the lockdowns or the conditions of his incarceration. As such, he is not entitled to enhanced credit for presentence custody pursuant to R. v. Duncan.
Conclusion
[62] In conclusion, Mr. Deiaco is sentenced to a global sentence of 8 years less 3 years, 7 months and 14 days. As such, Mr. Deiaco is required to serve another 4 years, 4.5 months in custody.
[63] The sentence shall be recorded as follows:
| Count | Offence | Sentence |
|---|---|---|
| 2 | Trafficking in persons: exercising control for the purpose of exploiting K.M. contrary to s. 279.01(1) of the Criminal Code. | 5 years concurrent to Count 7. |
| 3 | Receiving a material benefit knowing that it resulted from the commission of an offence contrary to s. 279.02(1) of the Criminal Code. | 3 years concurrent to Count 7. |
| 7 | K.K.M. with intent to confine contrary to s. 279(1)(a) of the Criminal Code. | 7 years in custody less 3 years, 7 months, 14 days for a remaining sentence of 3 years, 4.5 months to be served. |
| 10 | Assault causing bodily harm on Mr. J.T. contrary to s. 267(b) of the Criminal Code. | 3 years concurrent to Count 7. |
| 11 | Use an imitation firearm while committing an indictable offence contrary to s. 85(2)(a) of the Criminal Code. | 1 year consecutive to Count 7. |
[64] Mr. Deiaco will be subject to a s. 109 order for life and provide a sample of his DNA. He will also be subject to a SOIRA order for life.
Kelly J.
Released: June 5, 2017
Appendix “A”
Mr. Deiaco has a criminal record consisting of the following entries as a youth:
| Date | Offence | Sentence |
|---|---|---|
| May 9, 2000 | Theft under $5,000. | Probation for 18 months on each charge concurrent. |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| Fail to comply with recognizance. | As above, concurrent. | |
| December 6, 2000 | Assault. | Probation for 18 months. |
| February 24, 2003 | Theft under $5,000. | 6 months’ open custody together (recognizing 40 days of presentence custody) followed by probation for 12 months. |
| Possession of break in instruments. | As above, concurrent. | |
| Break, enter and commit. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| September 12, 2009 | Possession of property obtained by crime under $5,000. | 20 days and 10 days under supervision in the community. |
| December 12, 2003 | Theft under $5,000. | Time served (53 days) followed by probation of 24 months. |
| Fail to comply with disposition. | As above, concurrent. | |
| December 29, 2003 | Dangerous operation of a motor vehicle. | 80 days and 40 days under supervision in the community followed by probation for 18 months. One year driving prohibition. |
| Take motor vehicle without consent. | Probation for 18 months. | |
| Fail to comply with disposition. | As above, concurrent. |
Mr. Deiaco has the following entries on his criminal record as an adult:
| Date | Offence | Sentence |
|---|---|---|
| June 7, 2004 | Theft under $5,000. | 1 day (recognizing 10 days of presentence custody). |
| Fail to comply with probation order. | 10 days in custody. | |
| Fail to comply with recognizance. | 10 days consecutive. | |
| July 28, 2007 | Possession of property obtained by crime under $5,000. | 1 month (recognizing 39 days of presentence custody). |
| Fail to comply with probation order. | 15 days consecutive. | |
| Obstruct police officer. | 15 days concurrent to the sentence referred to above. | |
| December 10, 2004 | Theft under $5,000. | 7 months in custody (recognizing 68 days of presentence custody) followed by 18 months of probation. |
| Mischief under $5,000. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| Possession of property obtained by crime over $5,000. | As above, concurrent. | |
| Driving while disqualified. | As above in addition to a driving prohibition for two years. | |
| Assault. | 60 days concurrent and probation of 18 months concurrent (recognizing 68 days of pre-sentence custody). | |
| June 21, 2006 | Assault peace officer. | 1 day (recognizing 15 days of presentence custody), s. 110 order for five years. |
| Assault peace officer. | 1 day concurrent (recognizing 45 days of presentence custody). | |
| August 24, 2006 | Fail to comply with probation order. | 1 day (recognizing 90 days of presentence custody). |
| Fail to comply with probation order. | As above, concurrent. | |
| July 27, 2007 | Possession of property obtained by crime over $5,000. | 2 years in custody. |
| Theft over $5,000. | As above, concurrent. | |
| Break, enter and commit. | As above, concurrent. | |
| Theft under $5,000. | 6 months consecutive (recognizing 692 days of pre-sentence custody) and a driving prohibition for 3 years. | |
| Theft over $5,000. | As above, concurrent. | |
| Dangerous operation of a motor vehicle. | As above, concurrent. | |
| Flight while pursued by a peace officer. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | As above, concurrent. | |
| Fail to comply with probation order. | As above, concurrent. | |
| Mischief under $5,000. | As above. | |
| Fail to comply with recognizance. | As above. | |
| Fail to comply with recognizance. | As above. | |
| Fail to comply with recognizance. | As above. | |
| Fail to comply with recognizance. | As above. | |
| November 27, 2011 | Carrying a concealed weapon. | 3 months consecutive to sentence already serving and a s. 110 order for 5 years. |
| December 17, 2011 | Attempt break and enter with intent. | 9 months in custody consecutive to the sentence already serving. |
| Possession of break in instruments. | As above, concurrent. | |
| Possession of property obtained by crime under $5,000. | 6 months consecutive. | |
| Dangerous operation of a motor vehicle. | As above, concurrent. | |
| Flight while pursued by a peace officer. | As above, concurrent. | |
| August 11, 2010 | Theft under $5,000. | 3 months consecutive to unexpired portion of sentence. |
| October 22, 2010 | Statutory release violator. | Recommitted. |
| August 12, 2011 | Statutory release violator. | Recommitted. |
| October 25, 2011 | Unlawfully at large. | 30 days consecutive to the sentence being served. |
| January 31, 2012 | Possession of property obtained by crime under $5,000. | 5 months (recognizing 14 days of presentence custody). |
| Attempt theft of a motor vehicle. | As above, concurrent. | |
| March 15, 2013 | Mischief under $5,000. | 6 days followed by probation for 1 year. |
| April 26, 2013 | Possession of property obtained by crime over $5,000. | 250 days (recognizing 235 days of presentence custody) and a driving prohibition for life. Restitution of $17,141.58. |
| Flight while pursued by peace officer. | 250 days concurrent. | |
| Dangerous operation of a motor vehicle. | As above, concurrent. | |
| Fail to stop at the scene of an accident. | As above, concurrent. | |
| Driving while disqualified. | As above, concurrent. | |
| May 15, 2013 | Possession of property obtained by crime over $5,000. | 1 day (recognizing 60 days of presentence custody). |
| May 24, 2013 | Possession of a Schedule II substance. | Fine: $750. |
COURT FILE NO.: CR/15/70000/5950000 DATE: 20170605 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - thien co Deiaco REASONS FOR SENTENCE Kelly J. Released: June 5, 2017