DATE: 20031003 DOCKET: C38744

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. KARL ADAM FROMAN (Appellant)

BEFORE:

O'CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL:

Alexander Fiszauf for the appellant

David Lepofsky for the respondent

HEARD:

September 29, 2003

RELEASED ORALLY:

September 29, 2003

On appeal from the sentence imposed by Justice J.C. Kent dated May 17, 2002.

ENDORSEMENT

[1] The appellant was convicted of a brutal sexual assault and sentenced to 9 years imprisonment. There was evidence that the assault was planned. The attack took place in the victim's home at a time when her two children were asleep. The sexual assault was followed by unnecessary violence. The appellant inflicted a cut to the victim's throat with a knife and he stabbed her in the chest.

[2] We admitted fresh evidence which disclosed that the appellant had little remorse for the offence. The appellant who was nineteen years of age at the time of the offence is an aboriginal Canadian. He argues that the trial judge erred in failing to give due consideration to s. 718.2(e) of the Criminal Code. We disagree. The trial judge specifically considered the section and noted that in R. v. Gladue (1999), 1999 679 (SCC), 133 C.C.C. (3d) 385 (S.C.C.) at para. 79, the Supreme Court pointed out:

Generally the more violent and serious the offence, the more likely it is as a practical reality that the terms of imprisonment for aboriginals and non-aboriginals would be close to each other or the same, even taking into account the different concepts of sentencing.

[3] There is nothing in this record that would lead us to impose a sentence for this serious offence that is less than what is a fit sentence for a non-aboriginal offender. In our view, the sentence of 9 years (in addition to 11 months pre-trial custody) was entirely fit. Accordingly, we dismiss the appeal.

"Dennis O'Connor A.C.J.O." "M.A. Catzman J.A." "M.J. Moldaver J.A."