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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

CITATION: R. v. Medeiros, 2014 ONCA 602

DATE: 20140821

DOCKET: C57636

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gilberto Medeiros

Appellant

Angela Ruffo, for the appellant

Dena Bonnet, for the respondent

Heard: June 17, 2014

On appeal from the sentence imposed on February 4, 2013 by Justice A.M. Molloy of the Superior Court of Justice.

ENDORSEMENT

By the Court:

[1] The appellant was convicted of five counts of sexual assault and four counts of sexual exploitation involving B.R., his girlfriend’s young daughter. The sexual exploitation convictions were stayed in accordance with R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to five years’ imprisonment, less credit for 56 days’ pre-trial custody, yielding an effective sentence of four years, ten months and five days’ imprisonment. Ancillary DNA and sex offender registration orders were also imposed.

[2] The appellant seeks leave to appeal and, if leave be granted, appeals against sentence on the sole ground that the sentencing judge erred in her determination of the appropriate range of sentences. He submits that his five-year jail sentence is unfit, harsh and excessive, that the sentence imposed should therefore be set aside and that a sentence of three years’ imprisonment should be substituted in its stead.

[3] While I would grant leave to appeal, I would dismiss the appellant’s sentence appeal for the following reasons.

[4] In the sentencing judge’s view, this was a case involving “an adult offender in a position of trust who sexually abused an innocent young child on a regular and persistent basis over a period of about two years”. Based on this description of this offender and these offences, the sentencing judge held that the general range of applicable sentences was between five and nine years’ imprisonment.

[5] The appellant does not challenge the sentencing judge’s characterization of the nature of this case. That characterization is fully supported by the evidentiary record. On the sentencing judge’s undisputed factual findings, the appellant sexually abused B.R. on multiple occasions in 2006 – 2007, when B.R. was eleven and one-half to twelve-years old. The assaultive incidents occurred when the appellant, upon whom B.R. and her mother were financially dependent, was in a position of trust and authority over B.R. As the sentencing judge put it, the appellant was “an adult in [B.R.’s] life that she trusted and relied upon as she would a stepfather. [The appellant] had access to her because her mother trusted him completely”.

[6] The appellant contends, however, that the sentencing judge erred by applying the mid-to upper single digit penitentiary range of sentences identified by this court in R. v. D.(D.) (2002), 2002 44915 (ON CA), 163 C.C.C. (3d) 471. He argues that this case is distinguishable from D.(D.) and similar cases because none of his assaults against B.R. involved actual penetration. Relying principally on the decisions of this court in R. v. D.M. (2012), ONCA 894 and R. v. A.G. (2004), 2004 36065 (ON CA), 191 O.A.C. 386, the appellant submits that where there is no penetration, the starting point for sentences for sexual offences against a child by an adult in a position of trust or authority is three years in jail. As a result, the appellant says, his five-year term of imprisonment “represents a marked departure from the sentences imposed for similar offences in the [appellant’s] circumstances”, and the sentence imposed is harsh and excessive and cannot stand.

[7] We reject this ground of appeal. It is immaterial in this case whether the appropriate starting point for the fashioning of a fit sentence for the appellant was three years in jail, as now urged by the appellant, or five years in jail, on the authority of D.(D.). Counsel for the appellant submitted at the sentencing hearing that the appropriate range of sentences on the facts here was between two to five years’ imprisonment. Thus, the sentence imposed by the sentencing judge was at the upper end of the range acknowledged by the appellant as appropriate in all the circumstances, and at the low end of the range contemplated in D.(D.).

[8] In our view, it cannot be said that the sentence imposed in this case was manifestly unfit. The appellant supplied B.R. with drugs and alcohol and exploited her vulnerable state after her consumption of the drugs and alcohol he provided. He did so on numerous occasions when B.R.’s mother was unable to assist B.R. due to her own drug and alcohol consumption. This pattern of grooming conduct by the appellant was an aggravating circumstance, as was B.R.’s virtually helpless condition and extreme vulnerability at the time of the assaults. An accused’s grooming of his or her child victim is one of the aggravating factors identified by this court in D.M. as justifying a penitentiary sentence of five years or more.

[9] It is true that, in some cases, this court has upheld or imposed sentences of less than five years’ imprisonment for conduct that might be regarded as more egregious than that of the appellant. In this case, while it was open to the sentencing judge to impose a lower sentence, she was not obliged to do so. Whether calculated from a starting point of three or five years’ imprisonment, the sentence imposed reflects no error in principle and is neither outside the applicable range nor manifestly unfit for these serious crimes.

[10] In these circumstances, the sentencing judge’s decision attracts significant deference from this court. We see no basis for appellate interference with it. Nor does the fresh evidence sought to be filed by the appellant alter this conclusion.

[11] Accordingly, while leave to appeal sentence is granted, the sentence appeal is dismissed.

“J.I. Laskin J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”