WARNING

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), (3) or (4) or 486.6(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 279.01, 279.02, 279.03, 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.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

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. 2005, c. 32, s. 15.

Court File and Parties

CITATION: R. v. Bermudez-Rivera, 2010 ONCA 653

DATE: 2010-10-06

DOCKET: C48337

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Danilo Bermudez-Rivera

Applicant/Appellant

Counsel: Robert Sheppard, for the applicant/appellant Emile A. Carrington, for the respondent

Heard and released orally: September 24, 2010

On appeal from the sentence imposed by Justice Eleanor M. Schnall of the Ontario Court of Justice on September 7, 2007.

Endorsement

[1] The appellant appeals his sentence of 5 years on a plea to assault and attempted kidnapping. The appellant grabbed a young woman, a stranger, off the street in the early hours of the morning and tried to force her into his car. He was thwarted because she was able to fight him off and get away. When he was stopped later he had in his possession a blindfold, handcuffs, a dildo and a machete and had managed to grab the victim’s purse that contained underwear and that underwear was stuffed into the front of his pants.

[2] There was no joint submission. The Crown proposed a sentence – the maximum reformatory sentence, plus time served in pre-sentence custody counted on the 2:1 basis of 14 months, plus 3 years probation. The trial judge rejected the Crown submission and imposed a 5-year penitentiary sentence minus credit for the 14 months time served. She stated clearly in her reasons that a reformatory term would be “insufficient to address the issues of specific deterrence and denunciation and general deterrence and protection of the community given the premeditated random nature and aggravating circumstances of this offence”.

[3] In our view, the trial judge was entitled to take the approach she did based on the reasons she gave. She also made no reversible error in her treatment of the effect of the guilty plea in all the circumstances.

[4] A further factor in this case is the fact that following this sentencing the appellant pled guilty to sexual offences regarding his step-daughters and received a sentence of ten years consecutive to the 5-year sentence recently imposed, which took into account the totality principle with the 5-year sentence. In our view, the sentence of 5 years was a fit sentence when imposed and when considered in totality with the subsequent 10-year sentence.

[5] In the result, leave to appeal sentence is granted and the appeal is dismissed.

Signed: “K. Feldman J.A.” “S. E. Lang J.A.” “H. S. LaForme J.A.”