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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

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

(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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

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. A.G., 2016 ONCA 931

DATE: 20161212

DOCKET: C61391 & C62233

Simmons, Pardu and Miller JJ.A.

C61391

BETWEEN

Her Majesty the Queen

Respondent

and

A.G.

Appellant

C62233

AND BETWEEN

Her Majesty the Queen

Respondent

and

J.S.J.

Appellant

Robert Lepore, for the appellant, A.G.

Daniel J. Brodsky, for the appellant, J.S.J.

Lucy Anne Cecchetto, for the respondent

Heard: October 12, 2016

On appeal from the sentence imposed on June 9, 2015 by Justice Steve A. Coroza of the Superior Court of Justice.

ENDORSEMENT

[1] We dismissed these appeals following the oral hearing for reasons to follow. These are our reasons.

[2] Following a jury trial, the appellants were convicted of kidnapping, extortion and assault.

[3] After finding that the offences involved a home invasion, sexual assault, acts designed to terrorize the victim (for example, warnings while she was confined that she would never see her daughter again), extortion, a period of food deprivation and confinement for just under two days, the trial judge concluded that the appropriate range of sentence for these particular offenders was 10 to 20 years' imprisonment.

[4] The trial judge sentenced the appellant G. to a global sentence of 13 years’ imprisonment which he apportioned as follows: kidnapping - 13 years less credit for pre-sentence custody of 42 months; extortion – 7 years concurrent; and assault - 2 years concurrent.

[5] The trial judge sentenced the appellant J. to 12 years’ imprisonment for kidnapping less 69 days credit for pre-sentence custody; 7 years concurrent for extortion and 2 years concurrent for assault.

[6] The appellants seek leave to appeal sentence.

[7] The appellant G. argues that the trial judge erred in principle by ignoring relevant principles of sentencing apart from denunciation and deterrence; ignoring or paying lip service to relevant mitigating factors; improperly rejecting an important mitigating factor and imposing a global sentence that was unfit.

[8] The appellant J. adopts the appellant G.'s submissions that the trial judge failed to consider relevant mitigating factors and that the overall sentence was unfit. In addition, he submits that, taking account of his prosocial antecedents and lack of criminal record, the trial ignored the parity principle in imposing a global sentence of 12 years’ imprisonment on him as compared to a 13-year sentence for the appellant G. who had a criminal record and was on bail at the time of the offences.

[9] We would not accept these submissions. This was a serious and heinous crime that scarred the victim for life and creates concern for public safety. Although stiff, we do not consider the sentences imposed beyond that which is appropriate for these offences. Moreover, having regard to the nature of the offences, the trial judge was correct to focus on the sentencing principles of denunciation and deterrence.

[10] On our review of his reasons, the trial judge was well aware of the age and personal circumstances of each offender.

[11] Further, we are not persuaded that the trial judge’s rejection of G.'s so-called acts of kindness as a mitigating factor was in any way improper. He simply rejected any mitigating effect of these acts; he did not treat his analysis of G.'s actions as an aggravating factor. In our view, the trial judge properly took account of the mitigating factors that were present and acknowledged all of the relevant principles of sentencing.

[12] Having regard to the nature of these offences, we agree with the trial judge’s conclusion that there was little to mitigate their seriousness or the substantial sentences they required, including the fact that J. was a first time offender.

[13] We do not read the trial judge's statement that there is a hidden dark side to the appellants as being anything more than an acknowledgement that while otherwise industrious family men, and in the appellant’s J.’s case even pro-social, the appellants committed these terrible crimes.

[14] Finally, it is our view, that in sentencing the appellants, the trial judge took careful note of the roles played by each individual as well as their respective personal circumstances, including G.'s criminal record, the fact that he was on bail at the time of these offences and the fact that J. had no record. We reject J.'s submission that the trial judge ignored any disparity between him and G. This is not a case where the sentence imposed on J. reflects a “substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes”: R. v. Sidhu, 2013 ONCA 719, [2013] O.J. No. 5382, at para. 30, citing R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at p. 567.

[15] Leave to appeal sentence is granted; the sentence appeals are dismissed.

“Janet Simmons J.A.”

“G. Pardu J.A.”

“B.W. Miller J.A.”