W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
A non-publication and non-broadcast order in this proceeding under s. 486(3) of the Criminal Code, concerning the identity of and any evidence that would tend to identify the complainant(s), shall continue. As relevant in this case, s. 486(3) and s. 486(5) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under s. 486(3), read:
486.(3) Subject to subsection (4), where an accused is charged with
(a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988,
the presiding judge or justice may make an order directing that the identity of the complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.
(5) Every one who fails to comply with an order made pursuant to subsection (3) is guilty of an offence punishable on summary conviction.
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent on Conviction Appeal Applicant/Appellant on Sentence Appeal)
– and –
P.M. (Appellant on Conviction Appeal Respondent on Sentence Appeal)
BEFORE:
CARTHY, MOLDAVER AND FELDMAN JJ.A.
COUNSEL:
Tim Breen
For the appellant P.M. in C38687
Christine Tier
For the Crown, respondent in C38687
HEARD:
May 12, 2003
On appeal from the conviction by Justice Arthur C. Whealy of the Superior Court of Justice dated March 14, 2002 and on appeal from the sentence imposed by Justice Arthur C. Whealy dated May 28, 2002.
A P P E A L B O O K E N D O R S E M E N T
1We can see no basis upon which we could interfere with the exercise of discretion by the trial judge under s. 11(b). The conviction appeal is therefore dismissed.
2We agree with the Crown that a conditional sentence was not appropriate here. Having regard to the gravity and seriousness of the crimes and principles of sentencing (esp. general and specific deterrence) he should have received a custodial sentence of at least 2 years less a day. In our view a conditional sentence did not adequately reflect these concerns. However, in light of the fresh evidence indicating good conduct over the course of a year, that he has taken treatment for impulse control and has supported his common law wife and child, we do not feel that the interests of justice would be served by altering the sentence at this time.
3The appeals are dismissed.