



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    that could identify the complainant or a witness shall not be published in any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. R.
    H., 2012 ONCA 593

DATE: 20120912

DOCKET: C55067

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

[1]

The 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.

[2]

The 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.

[3]

Before the sentencing judge, the Crown sought a penitentiary sentence of
    five years and the respondents counsel urged an upper reformatory or very low
    penitentiary sentence, less enhanced credit for time spent in pre-sentence
    custody.

[4]

The appellant submits that the trial judge made three errors:

i.

that he improperly minimized the overall gravity of the respondents
    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.

[5]

The sentencing judge recognized that the paramount sentencing objectives
    at work in child pornography cases are denunciation and deterrence.  He also
    kept in mind the respondents rehabilitative prospects and the principle of
    restraint, since the sentence he intended to impose would be the respondents
    first carceral sentence.

[6]

The 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 respondents series of offences.

[7]

In 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.

[8]

In 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.

[9]

In 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.


