COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – ROBERT DURSLEY (Appellant)
BEFORE:
BORINS, MACPHERSON and CRONK JJ.A.
COUNSEL:
David E. Harris
for the appellant
Kim Crosbie
for the respondent
HEARD:
September 15, 2003
On appeal from the conviction entered on September 27, 2000 and the sentence imposed on October 30, 2000 by Justice Robert E. Zelinski of the Ontario Court of Justice.
E N D O R S E M E N T
Released Orally: September 15, 2003
MACPHERSON and CRONK JJ.A.:
1In the context of comprehensive reasons for sentence the trial judge misused the rehabilitation factor by using it as a reason for imposing a custodial sentence. This error requires us to impose a fit sentence.
2We agree with the trial judge that a custodial sentence was appropriate in this case. See: R. v. Cromien (2002), 155 O.A.C. 128 and R. v. D. R. (2003), 169 O.A.C. 55.
3However, in light of the time the appellant has already spent in custody (53 days), we would reduce his sentence to time served plus an additional six months in custody. The probation components of the sentence would remain unchanged.
"J. C. MacPherson J.A."
"E. A. Cronk J.A."
BORINS J.A. (Dissenting):
4I agree with the majority that a custodial sentence was appropriate. However, it has been two and three-quarter years since the appellant was released on bail pending the hearing of the appeal. Through no fault of his, it has taken this period of time for the appeal to be argued.
5Because of this lengthy delay, in my view, this is a case in which it would not be appropriate to require that the appellant be returned to jail, if only for a short time. I would, therefore, reduce the sentence to time served (53 days), without disturbing the terms of the probation order.
"S. Borins J. A."