Ontario Criminal


Appeal

Sentence appeal
Total sentence imposed was not unreasonable

Upon conviction for series of firearms offences accused was sentenced to total of eight years imprisonment, less credit of one year for presentence custody and strict bail conditions. Accused was found to have fired several shots from high powered rifle into home of complainant. Accused submitted that trial judge erred in imposing consecutive sentences on count 3 (mischief by willfully damaging dwelling house by discharging firearm into dwelling house and endangering life) and count 1 (intimidating justice system participant in order to impede her in performance of her duties), submitting that same conduct gave rise to both charges and provided factual basis for both convictions and that sentences should have been concurrent. Accused appealed his sentence. With exception of victim surcharge issue appeal dismissed. Trial judge had discretion to impose consecutive sentences on two charges. Whether consecutive or concurrent sentences were to be imposed, totality of sentences imposed was what ultimately mattered. No doubt sentence imposed on charge of intimidating justice system participant (three years) would have been much higher but for concerns over totality of sentences imposed in light of accused’s age and absence of any prior significant criminal involvement. Total sentence imposed was not unreasonable. Although trial judge waived victim fine surcharges, order imposing surcharges was signed by clerk of court. Crown agreed that this order must be quashed.

R. v. Abbasi (Mar. 18, 2016, Ont. C.A., Doherty J.A., Janet Simmons J.A., and K.M. van Rensburg J.A., CA C60162) Decision at 118 W.C.B. (2d) 216 was affirmed. 129 W.C.B. (2d) 411.

Appeal allowed and sentence requested by Crown at trial imposed

Accused was sentenced to effective sentence of 16 months after he pleaded guilty to number of driving offences and possession of stolen property. Crown asked for five months, in addition to seven months pre-trial custody. Trial judge imposed further nine months so that accused could attend Ontario Correctional Institute (“OCI)”, where minimum of nine months was required for admission. Accused then was rejected from OCI. Accused appealed sentence. Appeal allowed; sentence set aside and sentence of five months, in addition to seven months of pre-trial custody, imposed. Despite accused’s lengthy and serious record, he showed genuine remorse before trial judge and court, and was sincere in his desire to straighten out. In light of fact that trial judge imposed sentence four months higher than Crown requested in order to help accused get treatment at OCI, which never materialized, appeal should be allowed and sentence requested by Crown at trial imposed.

R. v. Horgan (Apr. 4, 2016, Ont. C.A., K. Feldman J.A., J.M. Simmons J.A., and S.E. Pepall J.A., CA C61747) 129 W.C.B. (2d) 308.

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