



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    that could identify the complainant or a witness shall not be published in any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. Medeiros, 2014 ONCA 602

DATE: 20140821

DOCKET: C57636

Laskin, Cronk and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gilberto Medeiros

Appellant

Angela Ruffo, for the appellant

Dena Bonnet, for the respondent

Heard: June 17, 2014

On appeal from the sentence imposed on February 4, 2013
    by Justice A.M. Molloy of the Superior Court of Justice.

ENDORSEMENT

By the Court:

[1]

The appellant was convicted of five counts of sexual assault and four
    counts of sexual exploitation involving B.R., his girlfriends young daughter.
    The sexual exploitation convictions were stayed in accordance with
R. v.
    Kienapple
, [1975] 1 S.C.R. 729.  The appellant was sentenced to five years
    imprisonment, less credit for 56 days pre-trial custody, yielding an effective
    sentence of four years, ten months and five days imprisonment.  Ancillary DNA and sex offender registration orders were also imposed.

[2]

The appellant seeks leave to appeal and, if leave be granted, appeals against
    sentence on the sole ground that the sentencing judge erred in her
    determination of the appropriate range of sentences.  He submits that his
    five-year jail sentence is unfit, harsh and excessive, that the sentence
    imposed should therefore be set aside and that a sentence of three years
    imprisonment should be substituted in its stead.

[3]

While I would grant leave to appeal, I would dismiss the appellants
    sentence appeal for the following reasons.

[4]

In the sentencing judges view, this was a case involving an adult
    offender in a position of trust who sexually abused an innocent young child on
    a regular and persistent basis over a period of about two years.  Based on
    this description of this offender and these offences, the sentencing judge held
    that the general range of applicable sentences was between five and nine years
    imprisonment.

[5]

The appellant does not challenge the sentencing judges characterization
    of the nature of this case.  That characterization is fully supported by the
    evidentiary record.  On the sentencing judges undisputed factual findings, the
    appellant sexually abused B.R. on multiple occasions in 2006  2007, when B.R.
    was eleven and one-half to twelve-years old.  The assaultive incidents occurred
    when the appellant, upon whom B.R. and her mother were financially dependent,
    was in a position of trust and authority over B.R.  As the sentencing judge put
    it, the appellant was an adult in [B.R.s] life that she trusted and relied
    upon as she would a stepfather.  [The appellant] had access to her because her
    mother trusted him completely.

[6]

The appellant contends, however, that the sentencing judge erred by
    applying the mid-to upper single digit penitentiary range of sentences
    identified by this court in
R. v. D.(D.)
(2002), 163 C.C.C. (3d) 471. 
    He argues that this case is distinguishable from
D.(D.)
and similar
    cases because none of his assaults against B.R. involved actual penetration. 
    Relying principally on the decisions of this court in
R. v. D.M.
(2012),
    ONCA 894 and
R. v. A.G.
(2004), 191 O.A.C. 386, the appellant submits
    that where there is no penetration, the starting point for sentences for sexual
    offences against a child by an adult in a position of trust or authority is
    three years in jail.  As a result, the appellant says, his five-year term of
    imprisonment represents a marked departure from the sentences imposed for
    similar offences in the [appellants] circumstances, and the sentence imposed
    is harsh and excessive and cannot stand.

[7]

We reject this ground of appeal.  It is immaterial in this case whether
    the appropriate starting point for the fashioning of a fit sentence for the
    appellant was three years in jail, as now urged by the appellant, or five years
    in jail, on the authority of
D.(D.)
.  Counsel for the appellant
    submitted at the sentencing hearing that the appropriate range of sentences on
    the facts here was between two to five years imprisonment.  Thus, the sentence
    imposed by the sentencing judge was at the upper end of the range acknowledged
    by the appellant as appropriate in all the circumstances, and at the low end of
    the range contemplated in
D.(D.)
.

[8]

In our view, it cannot be said that the sentence imposed in this case
    was manifestly unfit.  The appellant supplied B.R. with drugs and alcohol and
    exploited her vulnerable state after her consumption of the drugs and alcohol
    he provided.  He did so on numerous occasions when B.R.s mother was unable to
    assist B.R. due to her own drug and alcohol consumption.  This pattern of
    grooming conduct by the appellant was an aggravating circumstance, as was
    B.R.s virtually helpless condition and extreme vulnerability at the time of
    the assaults.  An accuseds grooming of his or her child victim is one of the
    aggravating factors identified by this court in
D.M.
as justifying a
    penitentiary sentence of five years or more.

[9]

It is true that, in some cases, this court has upheld or imposed
    sentences of less than five years imprisonment for conduct that might be
    regarded as more egregious than that of the appellant.  In this case, while it
    was open to the sentencing judge to impose a lower sentence, she was not
    obliged to do so.  Whether calculated from a starting point of three or five
    years imprisonment, the sentence imposed reflects no error in principle and is
    neither outside the applicable range nor manifestly unfit for these serious
    crimes.

[10]

In
    these circumstances, the sentencing judges decision attracts significant
    deference from this court.  We see no basis for appellate interference with
    it.  Nor does the fresh evidence sought to be filed by the appellant alter this
    conclusion.

[11]

Accordingly,
    while leave to appeal sentence is granted, the sentence appeal is dismissed.

J.I. Laskin J.A.

E.A. Cronk J.A.

R.A. Blair J.A.


