Ontario Criminal


Appeal

SENTENCE APPEAL
Despite sentencing judge’s factual mistake, sentence actually imposed fit for offences

Appeal from sentence. Accused was convicted of two counts of sexual assault on victims he had rendered unconscious with stupefying drug, one count of administering stupefying drug with intent to commit sexual assault, and one count of unlawful possession of property. He was sentenced to 5 years’ incarceration less pretrial custody at 2-for-1 ratio and made subject to Long-Term Supervision Order (“LTSO”) for period of 7 years following his release. Accused continually breached LTSO. Appeal turned on error by sentencing judge in calculating accused’s credit for presentence custody. As he had been released from imprisonment in September 2011 on statutory release, he sought to reduce duration of LTSO. Sentencing judge intended to give accused 1.5 to 1 credit for presentence custody. Proper credit would have been 1,009 days. Sentencing judge granted accused 228 days (about 7.5 months) less credit than he might have otherwise received. Accused spent total of 1,337 days (664 days on his first breach and 673 days on breaches in this case) in custody while his LTSO continued to run. That period amounted to more than half of original 7-year period LTSO was intended to apply. Leave to appeal granted; appeal dismissed. Despite sentencing judge’s factual mistake, sentence actually imposed was fit for offences. Rationale for LTSO for 7 years was not undermined by sentencing judge’s calculation error.

R. v. Bourbon

(Apr. 23, 2012, Ont. C.A., Juriansz J.A., File No. C53975) 100 W.C.B. (2d) 756 (8 pp.).

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