Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220217 DOCKET: C69371

Miller, Trotter and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

George Olivetti Appellant

George Olivetti, acting in person Samuel G. Walker, for the respondent

Heard: February 9, 2022 by video conference

On appeal from the sentence imposed by Justice Alison J. Wheeler of the Ontario Court of Justice on January 28, 2021.

Reasons for Decision

[1] The appellant entered pleas of guilty to one count of possessing child pornography (Criminal Code, s. 163.1(4)), and one count of accessing child pornography (s.163.1(4.1)).

[2] On July 1, 2020, the National Child Exploitation Coordination Centre detected an attempt by the appellant to download an image of a prepubescent female from the internet. The Kingston Police were alerted. When they entered the appellant’s home with a search warrant, he was sitting in front of his computer. The computer was seized. The hard drive was found to contain 11,000 images and 88 videos that were characterized as child pornography (primarily depictions of prepubescent girls).

[3] The Crown and the defence presented a joint submission of four years’ imprisonment and other ancillary orders. After deducting credit for pre-sentence custody, it was proposed that the appellant would serve a further 1,220 days in custody.

[4] At the time of sentencing, the appellant was 77 years old. Before retiring, he was employed in the financial services industry. The appellant has an extended family of adult children, as well as grandchildren and great grandchildren. He attends church. At the time of sentencing, he expressed remorse for his actions, commenting, “This is the most heinous activity.”

[5] The appellant has a prior criminal record. In 2007, he was sentenced to a 10 ½ year penitentiary term for numerous historical sexual offences against children. No further information about these offences was provided to the sentencing judge, nor were we apprised of any details.

[6] The sentencing judge acceded to the joint submission. She observed that the appellant had amassed a “very large collection of child pornography.” She noted the further aggravating factor of his prior criminal record. However, these factors were somewhat mitigated by the appellant’s guilty plea, his demonstrated insight into the harmfulness of his offending, and his stated commitment to change.

[7] The appellant submits that the sentence imposed was too harsh in all of the circumstances. He also relies on fresh evidence which provides updated personal information. This includes the support of some of his family members. One of his sons (and his son’s wife) have offered to have the appellant live with them once he is released.

[8] The appellant also relies on medical records that outline ongoing health issues, including a cerebral cyst and a kidney cyst. From the limited information provided to us, it would appear that both cysts are benign and the appellant is receiving appropriate treatment.

[9] We do not accept the submission that the sentence was unfit when it was imposed. It was imposed further to a joint submission. Before accepting it, the sentencing judge assured herself that the proposed sentence was within the appropriate range. We agree with her assessment.

[10] Nor are we persuaded that the updated information about the appellant’s personal circumstances could justify a reduction of what we consider to be an otherwise fit sentence. The appellant has been eligible for day parole since September of 2021 and will be eligible for full parole in March of 2022. Issues concerning the appellant’s health and well-being are best dealt with by the Parole Board of Canada.

[11] Leave to appeal sentence is granted, but the appeal is dismissed.

“B.W. Miller J.A.”

“Gary Trotter J.A.”

“B. Zarnett J.A.”