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complainant or of a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way.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) – and – R.D.C. (Appellant)
BEFORE:
WEILER, MOLDAVER and LANG JJ.A.
COUNSEL:
Ryan D. Cooke
inmate in-person via video link
Susan Reid
for the respondent
HEARD:
July 6, 2005
On appeal from the sentence imposed on March 7, 2005 by Justice Gladys I. Pardu of the Superior Court of Justice, sitting without a jury.
E N D O R S E M E N T
1Following a trial, the appellant was convicted of sexual assault and of uttering a threat to cause death or bodily harm. He received a total sentence of two years less a day plus three years probation.
2The appellant appeals only from sentence. He submits that the sentencing judge erred by erroneously finding that he was a danger to the community and by placing too little weight on the principle of rehabilitation. He submits that he should have received a conditional sentence.
3The crimes of which the appellant was convicted were extremely serious. The appellant had forcible sexual intercourse with the complainant, then seventeen years old and who, prior to the incident, was a long time and trusted friend of the appellant. Apart from the inherent violence of the sexual assault, the appellant physically assaulted the complainant in order to have her submit to him. Far from showing contrition after the event, about a month later, he insidiously threatened the complainant with death or bodily harm with a view to having her remain silent.
4The crimes of which the appellant was convicted would normally attract a penitentiary sentence of three to four years. The trial judge took into consideration the fact that the appellant was young, aged 24 at the time of sentencing, that he had no prior criminal record, had a positive presentence report, supported his common law spouse and child and that incarcerating him in jail would disrupt his employment and family life. No doubt these factors were part of the reason why she did not impose a penitentiary sentence.
5In our view, the sentence was not demonstrably unfit, nor did the trial judge err in principle. Having regard to the violence involved in the appellant’s sexual assault of the complainant, the lack of any protection used, and the insidious threat made to her later, the trial judge was of the opinion that a conditional sentence would not be appropriate and would not adequately reflect the principles of denunciation and general deterrence in this case. We see no basis of interfering with her conclusion.
6We note, however, that the appellant has served four months of his sentence. His parole eligibility date is November 4, 2005. The court received fresh evidence to the effect that since his incarceration, the appellant has engaged in a 10 session program that examines several facets of sexual offending. In addition he has just been assessed as being a low risk to reoffend. The appellant’s progress is very encouraging and we commend him for his positive efforts. We trust that they will be given serious consideration by the parole board.
7Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.
“K. M. Weiler J.A.”
“M. J. Moldaver J.A.”
“S. E. Lang J.A.”