DATE: 20030619

DOCKET: C39585

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. LAURO P. BAYANI (Respondent)

BEFORE: O’CONNOR A.C.J.O., MORDEN and SHARPE JJ.A.

COUNSEL: Benita Wassenaar

for the appellant

Leslie Maunder

for the respondent

HEARD: June 16, 2003

ORALLY

RELEASED: June 16, 2003

On appeal from the sentence imposed by Justice J. Granger of the Superior Court of Justice on January 31, 2003.

E N D O R S E M E N T

[1] The respondent was convicted of pointing a firearm, assault with a weapon and possession of a firearm contrary to a prohibition order.

[2] The facts giving rise to the convictions are serious. After firing a handgun twice, the respondent pointed the gun at the victim’s head on three occasions. He struck her repeatedly causing bruises, swelling and scratches. The trial judge was not prepared to find that the gun was still loaded at the time the appellant pointed it at the victim. However, the entire episode was undoubtedly very traumatic for the victim.

[3] The respondent has a lengthy criminal record involving offences of violence. At the time he committed these offences he was on probation for harassing the victim and he was subject to a lifetime prohibition from possessing firearms.

[4] The pre-sentence report was very negative. The respondent is described as being at risk for offending with violence and as not being amenable to counselling or community service. He expressed no remorse for the conduct that gave rise to these convictions.

[5] The trial judge imposed a custodial sentence of seven months. He gave the respondent 13 months credit for pre-trial custody reflecting a total sentence of 20 months.

[6] In our view, this sentence is demonstrably unfit. There is nothing in the facts of this case or in the background of the respondent that would justify leniency. An appropriate sentence is three years.

[7] Accordingly, leave to appeal is granted, the appeal is allowed and the sentence is varied. Giving the same credit for pre-trial custody as the trial judge did, we impose a sentence of 23 months effective from the date of sentencing in the court below.

“Dennis O’Connor A.C.J.O.”

“John Morden J.A.”

“Robert J. Sharpe J.A.”