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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 OF APPEAL FOR ONTARIO
MacPherson, Armstrong and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Applicant/Appellant
and
R. H.
Respondent
Lisa Henderson, for the applicant/appellant
Peter Thorning, for the respondent
Heard and released orally: September 6, 2012
On appeal from the sentence imposed on January 27, 2012 by Justice Peter Hryn of the Ontario Court of Justice.
ENDORSEMENT
1The Attorney General seeks leave to appeal and, if leave be granted, appeals from a net sentence of imprisonment for 10 months followed by probation for 18 months imposed on the respondent on convictions of a single count of possession of child pornography and of two counts each of making child pornography available and breach of probation.
2The respondent, a 28 year old recidivist, who was fully co-operative with investigators from the moment of his arrest, pleaded guilty before a judge of the Ontario Court of Justice about eight months after his arrest. Three months later, the judge imposed a global sentence of imprisonment of 27 months on the respondent. To achieve the net sentence he ultimately imposed, the judge awarded the respondent a credit of 17 months for the 11 and one-half months he spent in pre-sentence custody.
3Before the sentencing judge, the Crown sought a penitentiary sentence of five years and the respondent’s counsel urged an upper reformatory or very low penitentiary sentence, less enhanced credit for time spent in pre-sentence custody.
4The appellant submits that the trial judge made three errors:
i. that he improperly minimized the overall gravity of the respondent’s offences;
ii. that he unduly emphasized what he regarded as mitigating factors; and
iii. that in the end he imposed a global sentence that was demonstrably unfit.
5The sentencing judge recognized that the paramount sentencing objectives at work in child pornography cases are denunciation and deterrence. He also kept in mind the respondent’s rehabilitative prospects and the principle of restraint, since the sentence he intended to impose would be the respondent’s first carceral sentence.
6The sentencing judge described at some length in his reasons what he regarded as the aggravating factors on sentence. Reading this portion of his reasons as a whole, we simply cannot say, as the appellant invites us to do, that this experienced judge failed to appreciate or improperly minimized the overall gravity of the respondent’s series of offences.
7In a similar way, the sentencing judge enumerated what he considered mitigating factors. We do not agree with the appellant that the trial judge considered irrelevant factors in mitigation, or that he assigned disproportionate weight to individual factors or the mitigating factors taken as a whole.
8In the fact-sensitive world of sentencing decisions, we see no basis upon which to interfere with this sentence, the custodial portion of which has already been served.
9In the result, although we would grant leave to appeal, we would dismiss the appeal from sentence.
“J. C. MacPherson J.A.”
“Robert Armstrong J.A.”
“David Watt J.A.”
