



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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 complainants 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(iii)       REPEALED: S.C. 2014, c. 25, s. 22(2),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    that could identify the victim shall not be published in any document or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. Leung, 2018 ONCA 298

DATE: 20180323

DOCKET: C62694

MacFarland, Huscroft and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daryn Leung

Appellant

Jennifer Penman, for the appellant

Avene Derwa, for the respondent

Heard and released orally: March 22, 2018

On appeal from the conviction entered on December 15,
    2015 and the sentence imposed on February 24, 2016 by Justice Minden of the Superior
    Court of Justice, sitting without a jury.

REASONS FOR DECISION

[1]

The appellant was convicted on 16 of 17 charges,
    including exercising control, procuring, receive material benefit from
    procuring, sexual assault, robbery, theft under $5,000, fraud under $5,000,
    utter threats, and assault. He was sentenced to 8.5 years imprisonment less 3
    years pre-trial custody.

[2]

The appellant appeals against conviction and
    seeks leave to appeal his sentence.

[3]

This was primarily a credibility case. The trial
    judge accepted the evidence of the two complainants, L.S. and M.B.S. He found
    the appellant to be incredible and unreliable and rejected his evidence on all
    matters of significance. The trial judge accepted the evidence of both
    complainants where it conflicted with that of the appellant. Counsel for the
    appellant pointed to specific text messages suggesting that L.S. was not under
    the control of the appellant, but we note that there were an equal if not
    greater number of messages that demonstrated the contrary. The trial judges
    findings were open on the record before him and there is no basis to interfere
    with them. Nor is there any basis to conclude that the trial judge
    misapprehended the evidence of M.B.S.

[4]

The trial judge did not apply different levels of
    scrutiny to the evidence of the complainants and the appellant. The appellants
    complaint is, in essence, that his evidence was not believed. However, the
    trial judge had ample basis for rejecting his evidence. He found the
    appellants testimony self-serving, illogical, and occasionally nonsensical;
    furthermore, it was contrived, calculated to deceive, and in some instances
    completely fabricated.

He
    carefully considered all of the evidence and found that the appellants
    evidence did not give rise to a reasonable doubt, and that the Crown had proven
    the charges beyond a reasonable doubt.

[5]

The trial judge made no error in granting the
    cross-count similar fact application. It was not contested that the
    complainants did not know each other and that there was no possibility of
    collusion. The trial judge found that the appellant took advantage of the
    complainants vulnerability to co-opt each of them in order to obtain money
    from them for their performance of sexual services. His decision that the
    probative value of the evidence outweighed its prejudicial effect is entitled
    to deference. In any event, the trial judge found that the cross-count evidence
    was not essential to the appellants convictions.

[6]

The trial judges sentencing decision is also
    entitled to deference. This court may intervene only if the trial judge made an
    error in law or principle that had an impact on the sentence, or imposed a
    sentence that is demonstrably unfit.

[7]

We see no such error. The circumstances of this
    case were egregious. The appellant preyed upon vulnerable young women who had
    feelings for him and used them for his benefit. He committed several acts of assault
    and sexual assault. He has a lengthy criminal record and the seriousness of his
    crimes had escalated. There were few mitigating factors, and the trial judge
    found that the appellants prospects for rehabilitation were uncertain.

[8]

In all of these circumstances, it was
    appropriate to emphasize denunciation, deterrence, and protection of the
    public. In our view, although the sentence is high it cannot be said to be
    demonstrably unfit.

[9]

The appeal from conviction is dismissed.  Leave to
    appeal sentence is granted, but the sentence appeal is dismissed.

J. MacFarland J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


