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:

An order restricting publication in this proceeding under ss. 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step‑daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C‑34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) In proceedings in respect of the offences referred to in paragraph (1) (a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

DATE: 20060816

DOCKET: C43580

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – M.H. (Appellant)

BEFORE:

SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

Geoff Chesney

for the appellant

Jeanette Gevikoglu

for the Crown respondent

HEARD & RELEASED ORALLY:

July 25, 2006

On appeal from the sentence imposed by Justice Peter Mitchell of the Ontario Court of Justice on August 31, 2004.

E N D O R S E M E N T

[1] On July 16, 2004, the appellant pleaded guilty to robbery, kidnapping, sexual assault and arson. The appellant was 17 years old at the time these offences were committed. However, following a transfer hearing under the Youth Criminal Justice Act, the charges were moved to adult court.

[2] On August 31, 2004, after giving the appellant two and one-half years credit for 18 months presentence custody, Mitchell J. sentenced the appellant to four years imprisonment for kidnapping, four years imprisonment concurrent for robbery, one year imprisonment concurrent for arson and two and one-half years imprisonment consecutive for sexual assault.

[3] For the purpose of this sentence appeal, the underlying facts of the offences are important. On February 4, 2003, the appellant and his 16-year-old co-accused were drinking rum at a mall in Hamilton when they decided to commit a robbery to obtain bus money. At about 9:00 p.m. on that date the appellant approached the victim as she was opening her car door in the parking lot of the mall and asked the time. The victim was a 66-year-old women on her way home from work at one of the stores in the mall. Once the victim had entered her car the appellant punched her in the eye, shoved her into the passenger seat and then entered the vehicle with the co-accused.

[4] The appellant told the victim that he had a gun and threatened to harm her if he could not get the car started. Over the next two to three hours he and the co-accused confined the victim to her car and drove from ATM machine to ATM machine in Hamilton and Burlington in an effort to rob the victim of her money. In order to obtain the victim’s PIN number, the perpetrators told her they would shoot her son. Ultimately, they obtained over $1,300 in cash.

[5] On each occasion that the perpetrators approached an ATM machine it was the co-accused who left the vehicle and attempted to obtain the cash. While the co-accused was absent from the vehicle, the appellant sexually assaulted the victim on several occasions. During the first assault, the appellant demanded that the victim give him a blow job, threatened to rape her if she did not do so and at one point forced her head onto his penis.

[6] During the second assault the appellant forcibly removed the victim’s clothing and attempted to rape her. Subsequently, after moving the vehicle, the appellant forced the victim to commit fellatio on him and ejaculated into her mouth and onto her coat. The perpetrators then drove the victim into the countryside, stole her purse and identification, forced her into a ditch and left her to fend for herself in minus 16 degrees Celsius weather. In accordance with a plan made with the appellant, the co-accused later poured gasoline into the victim’s vehicle and destroyed it by setting it on fire.

[7] At the time these offences were committed, the appellant had a prior record for assault, robbery and two counts of failing to comply with a recognizance and was subject to two probation orders in relation to those offences.

[8] Based on submissions that the sentence imposed was harsh and excessive, and that the sentencing judge failed to give adequate weight to various mitigating factors and erred in the application of certain sentencing principles, the appellant seeks leave to appeal sentence and asks that the sentence be reduced to time served or at least to a substantially shorter period of incarceration.

[9] On our review of the record, the trial judge gave careful consideration to the circumstances of this offence, the circumstances of this offender and the relevant sentencing principles. While the trial judge imposed a sentence that we consider to be at the high end of the range for a youthful offender, taking account of all of the circumstances of this case, and having reviewed all of the fresh evidence submitted, including the evidence filed today, we do not consider the sentence imposed to be outside the range or manifestly unfit or that it failed to give adequate weight to the appellant’s rehabilitation.

[10] Further, in our view, on the facts of this case it was open to the sentencing judge to impose consecutive sentences. Moreover, the sentencing judge did not err in imposing a sentence that significantly exceeded that received by the co-accused who was sentenced to the maximum available term under the Youth Criminal Justice Act and which the sentencing judge in that case described as lenient. Importantly, the co-accused did not participate in the sexual assault.

[11] In our view, the credit given for pre-sentence custody was within the trial judge’s discretion.

[12] In all of the circumstances, while leave to appeal sentence is granted, the sentence appeal is dismissed.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul S. Rouleau J.A.”