COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and–
JAMES WAYNE DONEY (Appellant)
BEFORE:
CHARRON, MOLDAVER and FELDMAN JJ.A.
COUNSEL:
David M. Tanovich
for the appellant
Sarah Gray
for the respondent
HEARD:
May 1, 2003
On appeal from the sentence imposed by Justice Jon-Jo Douglas of the Ontario Court of Justice, sitting without a jury, dated August 1, 2002.
A P P E A L B O O K E N D O R S E M E N T
1In the particular circumstances of this case, it is our view that it was incumbent upon the sentencing judge to inquire further into the availability of suitable programs to address the appellant’s drug addiction. It was clear from the submissions of the Crown and duty counsel that the plea had been entered, and the joint submission fashioned, on the sole basis that the appellant would receive the treatment that he needed in the penitentiary system.
2While we take no issue with the sentencing judge’s concern that a sentence in the penitentiary might not be appropriate for this offender, the record was insufficient to allow the court to address the concerns for rehabilitation that were raised in this case. The appellant has now served 9 months of his sentence. This court has the benefit of fresh evidence filed on the appeal indicating that a placement is immediately available with the “Turning Point Program”, a drug rehabilitation program in Toronto, and the appellant is willing to participate in this program that includes a 4-month residential component.
3In the circumstances, the appeal is allowed and the sentence varied as follows: the term of imprisonment is reduced to a total of 9 months, attributed to the various offences as follows:
theft of the motor vehicle: 2 months
theft of gas: 2 months concurrent
theft of guitar: 2 months concurrent
food fraud: 2 months concurrent
pursuit: 7 months consecutive.
4The terms of probation are modified to accord with the requirements that the appellant participate in and complete the residential drug treatment program, as per terms agreed upon by counsel.