DATE: 20050427

DOCKET: C42210

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) v. STEPHEN BROOKS (Respondent)

BEFORE:

DOHERTY, MOLDAVER and GILLESE JJ.A.

COUNSEL:

Kim Crosbie

for the appellant

Jody Berkes

for the respondent

HEARD:

RELEASED ORALLY:

April 22, 2005

April 22, 2005

On appeal from the sentence imposed by Justice Cowan of the Superior Court of Justice dated July 8, 2004.

E N D O R S E M E N T

[1] The respondent received sentences which, having regard to pre-trial custody calculated on a two for one basis, totalled two and a half years. He was also placed on probation for three years. The Crown seeks leave to appeal and if leave is granted, appeals from the sentences imposed.

[2] The respondent pleaded guilty to four charges. The offences committed by the respondent were serious. The respondent and others confined and assaulted one victim over the better part of a day. On the same day, they robbed other victims after breaking into the home of one of those victims. All of the participants in these events were part of or connected with the local drug culture. The respondent appears to have acted in the role of an enforcer.

[3] The respondent has a lengthy criminal record. That record includes three prior convictions for assaults. Most of the previous sentences imposed on the respondent fell into the short to middle reformatory range. The offences committed by the respondent, which are the subject of this appeal, are considerably more serious than any of his prior convictions.

[4] Given the seriousness of these offences and the respondent’s criminal record, the trial judge could not have been faulted had he acceded to the Crown’s submission and imposed a sentence in the range of four years. This trial judge, however, saw hope for the respondent’s rehabilitation. The pre-sentence report was positive in many respects. The respondent has strong support from a long-time employer and has developed a positive relationship with his girlfriend.

[5] The trial judge’s assessment that the respondent has rehabilitative potential appears to have been borne out in the fresh evidence received by this court with the agreement of the Crown. The fresh evidence indicates that the respondent is working hard while in custody to improve himself and to put himself in a position to remain on the right side of the law when he is released.

[6] The trial judge indicated that rehabilitation was a primary concern in determining the appropriate sentence. Viewed in isolation, this observation could be seen as an error in principle. General deterrence and denunciation are the primary considerations in sentencing adult repeat offenders for crimes of violence. We do not, however, think that the trial judge departed from those principles. We understand the trial judge’s reference to the significance of rehabilitation to mean that sentences which reflected the seriousness of the offences, while at the same time maximizing the rehabilitative potential of the respondent, provided the best long-range protection for the community. This court and others have made the same observation on many occasions.

[7] Other trial judges may have taken a different view of the sentencing problem presented by this offender and these offences. Some sentencing judges, acting reasonably, may not have seen the rehabilitative potential in the respondent that this trial judge saw. The weighing and blending of the various and sometimes competing principles of sentencing is the essence of the difficult job that a trial judge has when determining a fit sentence. We cannot say that the trial judge erred in principle simply because this court, or other reasonable trial judges, may have given more weight to one principle and less to another in determining the appropriate sentence.

[8] We find no error in principle in the trial judge’s reasons for sentence. The sentences imposed may properly be described as lenient, but are not so low as to warrant the manifestly inadequate appellation.

[9] We were advised during oral argument that the co-accused were tried and convicted subsequent to the respondent’s sentencing. They received considerably longer sentences than the respondent. The circumstances relevant to the determination of the appropriate sentence of the co-accused were different than the circumstances presented by this respondent and the more severe sentences reflect those different circumstances.

[10] Leave to appeal is granted, but the appeal is dismissed.

“Doherty J.A.”

“M.J. Moldaver J.A.”

“E.E. Gillese J.A.”