Introduction

[1] On May 16, 2016, Luigi Aceto was granted a conditional discharge and three years of probation following a guilty plea in the Ontario Court of Justice. Crown counsel appeals that sentence.

Factual Overview

[2] I will now give a very brief overview of the facts.

[3] On April 14, 2014, Luigi Aceto was charged with two counts of domestic assault. In September 2014, the victim swore an affidavit recanting the statement she had provided to the police and the charges were withdrawn. The respondent and victim moved back in together and resumed their relationship.

[4] On November 13, 2014, the respondent was charged with criminal harassment and assault. On December 4, 2014, the respondent was charged with failing to comply with recognizance. On December 7, 2014, the accused entered into a recognizance with conditions not to communicate with the complainant.

[5] In January 2015, the complainant gave birth to a child. The respondent is the father of that child. On February 16, 2015, the victim swore an affidavit recanting her three prior sworn videotaped statements to the police.

[6] The matter went to trial. During the trial, the respondent pleaded guilty to two counts of domestic assault and six counts of breach of recognizance. A nine day Gardiner hearing followed the guilty plea.

[7] The two counts of assault consisted of the respondent pulling on the complainant’s arm in an effort to have her return to their apartment. The complainant did not sustain any injuries, and she did not require any medical treatment. The complainant was pregnant at the time.

[8] Without context, the six breach charges are potentially misleading because five of the six counts pertain to an extended period where the respondent engaged in the same prohibited conduct.

[9] The first count is in relation to “love” notes left by the respondent in the complainant’s personal items. She disclosed the notes when the items were delivered back to her. These notes are contained in Tab 6 of the respondent’s Fresh Evidence Appeal Book.

[10] The remaining five breach counts are in relation to a five month period following the respondent’s release from custody during which he and the complainant consensually lived together. Each count relates to a different day during that five month period. I suppose the police could have charged the respondent with upwards of 300 breaches for each day of cohabitation. Alternatively, they could have charged the respondent with only one breach, covering the entire time period.

[11] The Crown sought a jail sentence of 32 days in addition to the 268 days of pre-sentence custody already served, to be followed by three years of probation, a section 110 order for ten years and a DNA order.

[12] Defence argued for a conditional discharge with probation in light of the significant pre-trial custody that the respondent had served and the fact that the respondent had no criminal record.

[13] On May 16, 2016, the sentencing judge sentenced the respondent to a conditional discharge followed by three years of probation and a five year section 110 order. At sentencing, it was agreed that the respondent had served 276 days in pretrial custody. The sentencing judge allotted 60 days to each assault, consecutively, 60 days for each fail to comply concurrent to each other but consecutive to each assault, to be noted on the record. The sentencing judge, found that the period of pretrial custody had been so lengthy and onerous, and ordered that the respondent also be granted an unused 96 day credit. The sentencing judge explained that this credit was to be applied towards other outstanding charges. Ultimately, those charges were withdrawn by the Crown.

Fresh Evidence

[14] In this appeal, the respondent seeks an order to admit fresh evidence. The respondent seeks to admit the following five items of fresh evidence:

(1) A separate four count information that was withdrawn by the Crown following the guilty plea;

(2) Two affidavits from the complainant dated September 5, 2014 and February 16, 2015, recanting her statements to police;

(3) A lease agreement that the respondent and complainant entered into in June 2015;

(4) Handwritten notes from the respondent to the complainant;

(5) A letter from CAS to the respondent dated September 8, 2016.

[15] The information contained in items (1), (2) and (3) was, in a general way, conveyed to the sentencing judge in the course of the proceedings. The fresh evidence is simply an expansion of that information. While the proposed fresh evidence could have been admitted at trial, I see R v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, as endorsing its admission especially since a balancing of all the other considerations favor admission.

[16] The handwritten notes (item 4), were made exhibits at trial, and, as such, they do not fall under the umbrella of fresh evidence.

[17] Item (5) is a letter to from CAS to the respondent. The content is confusing and is not relevant to these proceedings. In my view, it fails to meet the test set out in Palmer.

[18] I am satisfied that items (1) to (3) meet the test set out in Palmer and, as such, will be admitted as fresh evidence for the purposes of the this appeal.

Crown Position

[19] Crown counsel takes the position that the sentencing judge made errors in principle and that the sentence was demonstrably unfit.

[20] Crown counsel submits that the sentencing judge made the following four errors in the granting of the conditional discharge:

(1) He erred in law on the appropriate test for a conditional discharge;

(2) He erred in imposing a conditional discharge that was contrary to the public interest;

(3) He erred in principle in failing to consider or give sufficient weight to the principles of denunciation as well as specific and general deterrence; and

(4) He erred in principle in failing to give sufficient weight to the relevant aggravating factors and in overemphasizing rehabilitation.

[21] Crown counsel further argues that the sentencing judge erred by imposing a demonstrably unfit sentence in the circumstances of these offences and this offender.

[22] The Crown also argues that the sentencing judge erred in failing to impose an ancillary order for DNA pursuant to s.487.051(3) of the Criminal Code. The Crown argues that the sentencing judge failed to apply the appropriate test and failed to give reasons for refusing the order.

[23] Ultimately, Crown counsel is seeking an order setting aside the conditional discharge and requests that a suspended sentence be imposed.

Analysis

Conditional Discharge

[24] Sentencing is highly discretionary. Absent an error in principle or law, a sentencing judge’s sentencing disposition is entitled to substantial deference unless it is found to be demonstrably unfit.

R. v. Shropshire, 1995 47 (SCC), [1995] 4 SCR 227 at para. 46

R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at para 11

[25] In certain circumstances, the Criminal Code allows for the granting of a conditional discharge in lieu of a criminal conviction if two conditions are met: the judge must be satisfied (1) that the discharge is in the best interests of the offender; and (2) that the discharge is not contrary to the public interest.

[26] In this case, there was nothing prohibiting the sentencing judge from exercising his discretion and granting the respondent a conditional discharge.

[27] While I agree that the sentencing judge did not explicitly set out the test for a conditional discharge, in my view, he did not have to. During their extensive submissions, both counsel focused on and set out the test for a conditional discharge. The sentencing judge referenced and relied upon several conditional discharge cases in his oral judgment. In my view, a review of the judgment, combined with the submissions of counsel, demonstrate that this experienced sentencing judge was well aware of the test for granting a conditional discharge.

[28] In granting the discharge, the sentencing judge explicitly considered the following factors:

• The respondent pled guilty;

• The respondent was remorseful;

• The respondent was a first offender;

• The respondent had spent an inordinate amount of time in pretrial custody – 276 days;

• A conviction would negatively impact the respondent’s prospects for employment and thereby his ability to financially support his family; and

• The complainant was, to some degree, complicit in five of the six breaches.

[29] Following the nine day Gardiner hearing, the sentencing judge found the Crown had proven only two aggravating factors:

(1) The respondent had breached court orders; and

(2) The assaults were domestic in nature and the complainant’s medical condition at the time, the inference being that she was pregnant.

[30] Of equal importance were the unique facts attached to this case. All acts of domestic violence and subsequent breaches of court orders are serious. Where an offence falls on the gravity spectrum however depends on the specific facts of each particular case. In this case, there is no dispute that the assaults were limited to an arm pull that caused no injury. At least one arm pull was captured on a video surveillance camera. I reviewed the video and was unable to detect the assault until it was specifically pointed out to me by Crown counsel. In my view, these assaults fall at the lower end of the gravity spectrum. The breaches fall into a similar category. On its face, the sheer number of breach counts sparks concern and, without context, is disturbingly misleading. An examination of the facts, however, reveals a compliant victim and otherwise non-threatening communication. After a nine day Gardiner hearing, I am confident that the sentencing judge was intimately familiar with the particular facts of this case and that they factored significantly into his decision to grant the conditional discharge.

[31] It is not uncommon for offences of domestic assault combined with breaches of a court order to attract a conviction. While I agree that this sentence appears to have fallen outside what one might ordinarily deem appropriate, trial judges, are not bound to customary sentencing ranges where there is no mandatory minimum. Quite the opposite. Parliament has explicitly given sentencing judges the discretion to determine the appropriate punishment under the Criminal Code based on the fundamental principle of proportionality in s.718.1 which requires that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”.

[32] Sentencing is a highly individualistic task and tailored to the individual circumstances. No two cases or circumstances are ever identical. Sentencing is highly tailored to individual circumstances are ever identical. In this case, the respondent had no prior record, pled guilty, and served such significant pre-trial custody that the sentencing judge allotted him an unused 96 days of credit.

[33] In my view, the sentence imposed was responsive to the unique facts attached this case and the principles of sentencing. I find no error in his analysis.

DNA

[34] The sentencing judge refused to make a DNA order pursuant to s.487.05(3) of the Criminal Code. The choice of whether or not to make the order was entirely discretionary, as the convictions were for secondary designated offences. The choice of whether or not to make an order required a consideration of the criminal record of the offender, the nature of the offence, and the circumstances surrounding the offence. In R. v. Hendry, 2001 21168 (ON CA), 57 O.R. (3d) 475, at para. 24 the Court of Appeal provided the following guidance:

The court is also directed to consider the offender’s criminal record. If the offender has no prior record and the circumstances of the secondary designated offence are relatively minor, they may be justified in not making the order.

[35] I am mindful that in the vast majority of domestic assault cases, it is in the best interests of the administration of justice to make such an order. However, given the unique factors that are attached to this case, including that the respondent was a first offender, I can find no error in the sentencing judge’s decision not to make a DNA order.

[36] Crown counsel further submits that the sentencing judge was required to provide reasons and erred by failing to do so. I disagree. At the conclusion of his oral reasons, the sentencing judge succinctly stated that he was not going to make a DNA order given the context of the proceedings. It is clear to me that the sentencing judge applied his findings on sentence to his DNA assessment. This makes sense, given that all the factors required for the DNA assessment were encompassed in his sentencing analysis. There was no need or requirement to repeat them.

[37] Crown counsel argues that the sentencing judge failed to apply the appropriate test in not making the DNA order. Again, I disagree. Given that the test was explicitly stated by counsel in the course of their extensive submissions, it was not necessary for this experienced sentencing judge to repeat the test. Such an omission, in my view, does not justify intervention.

[38] I find that the sentencing judge did not err in refusing to make a DNA order.

Conclusion

[39] Appeal dismissed.

Byrne J.

Released: December 7, 2017

CITATION: R. v. Aceto, 2017 ONSC 7325 COURT FILE NO.: CR-16-10000054-OOAP DATE: 20171207

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

TORONTO REGION

HER MAJESTY THE QUEEN

Appellant

– and –

LUIGI ACETO

Respondent

REASONS FOR decision

Byrne, J.

Released: December 7, 2017

R. v. Aceto, 2017 ONSC 7325

Case Summary

Introduction

Factual Overview

Fresh Evidence

Crown Position

Analysis

Conditional Discharge

DNA

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 1