COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent)
v. K. W. (a young person) (Appellant)
BEFORE: ABELLA, ROSENBERG and MacPHERSON JJ.A.
COUNSEL: Bernard Cugelman,
for the appellant
Karen Shai,
for the respondent
HEARD: January 18, 2000
On appeal from the disposition imposed by Douglas J. dated July
5, 1999.
E N D O R S E M E N T
1As the Crown properly concedes, a disposition totaling three
and one-half years is illegal as it exceeds the two-year maximum
prescribed by s.20(3) of the Young Offenders Act. Therefore, it
falls upon this court to impose a sentence that complies with the
law and balances the various factors and principles set out in
the Young Offenders Act.
2We agree with counsel for the appellant that the trial judge
erred in principle in using factors concerning adult offenders
virtually to the exclusion of the principles set out in the Young
Offenders Act. This error led the trial judge to impose a very
lengthy term of custody. Having said that, this was a very
serious offence which had a serious impact on the complainant and
her family. While there was some indication that the appellant
was making some progress in treatment, the expert reports were
equivocal and provided little assistance in determining the
underlying cause of this very serious conduct.
3The appellant served approximately three and one-half months
of the secure custody term before being released on bail and also
spent one and one-half months in pre-disposition custody. While
we are always reluctant to return a young offender to custody in
circumstances such as these, we believe that the appellant could
continue to benefit from the treatment available at the Syl Apps
Youth Centre and that such treatment may be required for the
protection of the public.
4Reducing the custodial portion of the disposition to nine
months, as we intend to do, and taking into account the pre-
disposition custody, this means that in effect the appellant is
subject to a disposition of twelve months. This is a significant
custodial term given the appellant’s age and background.
5Accordingly, the appeal is allowed and the disposition
reduced to nine months secure custody and fifteen months
probation on the same terms as those imposed by the trial judge.
(Signed) "R. S. Abella J.A."
(Signed) "M. Rosenberg J.A."
(Signed) "J. C. MacPherson J.A."