



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)      REPEALED: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    information that could identify the victim shall not be published in any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. Al-Shimmary, 2017 ONCA 122

DATE: 20170213

DOCKET: C62335

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Diaa Al-Shimmary

Respondent

David Finley, for the appellant

Brian Eberdt, for the respondent

Heard and released orally: February 7, 2017

On appeal from the sentence imposed on June 1, 2016 by
    Justice Malcolm McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1]

The respondent, then a 25-year old man, raped an 11-year old girl.

[2]

He befriended the victim at a local park. After their initial meeting,
    they began to communicate on a regular basis via text messages and telephone. The
    victim sent personal pictures of herself to the respondent, including a nude
    picture. They arranged to meet at the same park where they first met. The
    respondent invited her to a friends nearby house. When they arrived at the
    house, they proceeded to a separate room, where the respondent removed the
    victims shirt and began to kiss her. She asked him to stop. He asked her to
    take her pants off, which she did because she was scared. He removed his own
    clothing and lay on top of her and continued to kiss her and also squeezed her
    breasts. He sat on her chest area and inserted his penis into her mouth. She
    tried to push him off. He removed her underwear. She told him to stop, but he
    got back on top of her and penetrated her vagina with his penis. She felt pain
    and began to cry. The respondent hit her face and told her to be quiet. Eventually,
    the respondent got up and the victim left the house and returned to her mother,
    who phoned the police.

[3]

The respondent was arrested shortly thereafter and, in due course,
    pleaded guilty to sexual interference under s. 151 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He was sentenced to 30 months imprisonment, less 15
    months credit for presentence custody.

[4]

The Crown seeks leave to appeal sentence. It argues that the sentencing
    judge failed to give proper effect to the principle of deterrence, failed to
    consider evidence that the respondent had sought out a young girl, and failed
    to consider evidence that the offence had a significant impact on the victim,
    and that these errors had an impact on the sentence.

[5]

We agree.

[6]

In cases of sexual crimes involving children, the principles of
    denunciation and deterrence must take precedence over other sentencing
    objectives, such as rehabilitation:
Criminal Code
, s. 718.01;
R. v.
    Barr
, 2016 ONCA 724, at para. 16. The sentencing judge concluded that [w]e
    do not deter other offenders by punishing the one at hand and that the most
    effective way to punish and denounce sexual offenders is by setting the stage
    for offenders to admit real responsibility, which has the additional benefit of
    creating a better opportunity for reform and rehabilitation. It was not open
    to the sentencing judge to decline to give effect to the principle of
    deterrence and focus on the objective of rehabilitation because he does not
    think that deterrent sentences are effective.

[7]

Moreover, the agreed statement of facts states that the respondent had introduced
    himself to the victim in a public park. The sentencing judges conclusion that
    there is no evidence that the respondent sought out a young girl is a clear
    error.

[8]

Finally, s. 718.2(a)(iii.1) of the
Criminal Code
explicitly
    provides that a court that imposes a sentence shall take into consideration the
    following principle:

(a) A sentence should be increased or
    reduced to account for any relevant aggravating or mitigating circumstances
    relating to the offence or the offender, and, without limiting the generality
    of the foregoing,



(iii.1) evidence that the offence had a significant impact
    on the victim, considering their age and other personal circumstances,
    including their health and financial situation,



shall be deemed to be aggravating circumstances;

[9]

There was evidence that the offence had a significant impact on the
    victim. She was hospitalized, twice, for weeks at a time, for suicidal ideation
    and self-harm. She was required to take various drugs to protect herself from
    pregnancy and disease.

[10]

The sentencing judge considered the impact of the offence on the victim
    only in his discussion of the mitigating effect of the respondents guilty
    plea. He stated the following:

The principal mitigating factor is the plea of guilt, the
    admission of responsibility that obviated the need for a trial. The admission
    of responsibility that minimized the extent of the further trauma that would be
    suffered by the victim, because there will be further trauma. All we can do is
    minimize.

[11]

In his analysis of the aggravating factors, the sentencing judge did not
    refer to the evidence of the significant impact of the offence on the victim. The
    sentencing judge failed to consider this separate and distinct statutorily
    prescribed aggravating circumstance.

[12]

In our view, these errors resulted in the imposition of a sentence that
    was too low. The only mitigating factor in this case is the respondents guilty
    plea. [The following factors require a lengthier sentence:

a)

The age of the victim and the fact that the respondent sought her out;

b)

The planning evident on the date of the offence  arranging to meet the
    victim at the original park, leading her to a friends house nearby, and then
    isolating her further in a separate room;

c)

The fact that the respondent ignored and overcame the victims
    resistance;

d)

The fact that the respondent struck the victim to silence her when she
    cried out in pain from being penetrated; and

e)

The significant impact of the offence on the victim.

[13]

The Crown submits that a sentence of four years, less credit for the
    respondents pre-trial custody, is a fit sentence.  While we would have been
    inclined to impose a longer sentence, in light of the Crowns submission, we
    will not impose a sentence longer than four years.

[14]

The respondent is entitled to 15 months credit for presentence
    custody.  Consequently, to achieve an effective sentence of four years, we
    impose a sentence of 33 months.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

B.W. Miller J.A.


