COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) – and – MARK BURKE (Appellant)
BEFORE:
ABELLA, MOLDAVER and GOUDGE JJ.A.
COUNSEL:
Scott Reid
for the appellant
Anya Weiler
for the respondent
HEARD AND ENDORSED:
July 9, 2004
On appeal from the sentence imposed by Justice David A. Fairgrieve of the Ontario Court of Justice dated July 28, 2003.
A P P E A L B O O K E N D O R S E M E N T
1The trial judge gave careful and considered reasons for refusing the accept the joint submission of 18 months less time already spent in pre-trial custody. In our view, he was correct in concluding that the proposed sentence was far too low and would bring the administration of justice into disrepute.
2In light, however, of the trial judge’s conclusion that the time spent in pre-trial custody of 9 months should be credited on a 3-for-1 basis totalling 27 months, the total sentence imposed of 47 months was manifestly too high. In all the circumstances, we are of the view that a penitentiary term of 3 years would have been appropriate. Since the appellant has already served almost 12 months in addition to the pre-trial custody (credited at 27 months), we would vary the sentences to time served.
3Leave granted and the appeal accordingly allowed.