Man found guilty of drugging, but not sex assault

Judge must rule on intent after verdict in trial involving the drug GHB

Atwo-litre bottle of rose wine spiked with what a toxicologist described as alethal amount of GHB was found by police in the complainant’s kitchen.

She claimed her trusted friend gave her a glass of the drugged wine and she passed out. She said she woke up to find him in bed next to her masturbating and putting his hand into her underwear.

Her friend, Duilio “Nick” Franchino, 29, denied sexually assaulting her or drugging her — claiming to have no idea how the GHB, often used as a date rape drug, got into the wine.

After a trial earlier this year a jury acquitted Franchino of sexual as- sault and administering a drug with intent to sexually assault the complainant — but found him guilty of one count of administering a noxious substance.

The unexpected jury verdicts appear to mean that they found Franchino drugged the complainant — but didn’t sexually assault her, Justice John McMahon said at a sentencing hearing Friday.

It is now up to him to determine what Franchino’s intent was in drugging the complainant.

Crown prosecutor Danielle Carbonneau argues Franchino intended to endanger the complainant’s life or cause her bodily harm, given the significant amount of GHB found in the wine and the impact it had on the complainant.

“She was vomiting, it affected her vision, she felt sick the next day,” said Carbonneau. “She had reduced mo- bility, she described her arm feeling like a noodle when trying to strum the guitar.”

Carbonneau said the judge should find Franchino gave the complainant a glass of drugged water as well. The complainant testified the water had the same strange, salty taste as the wine and GHB was found in the residue from that glass, Carbonneau said.

“Administering a noxious substance to an innocent victim without her knowledge is one of the worst forms of assault because it is impossible to defend against. It is a cowardly, underhanded, deceitful act akin to that of a poisoner,” she said, quoting from case law.

Defence lawyer Luka Rados argued Franchino’s intent was to give the complainant the GHB as a prank or for recreational use.

He says the court cannot find Fran- chino also gave the complainant a glass of drugged water since his fingerprints were not found on the glass and he denies giving her the water.

Rados said that it doesn’t make sense for Franchino to have left a bottle of wine with such a high concentration of GHB at the complainant’s apartment — suggesting that indicates he did not realize how much GHB was in there.

The difference in intent leads to very different sentencing ranges. For endangering life, the maximum sentence is 14 years and a conditional sentence is not an option. Where the intent is to aggrieve or annoy, the maximum sentence is two years in jail and the defence could ask for a conditional sentence — which is effectively house arrest.

The Crown is seeking a sentence of 15 months in jail. Sentencing submissions resume on Dec. 2.