R. v. Plafker, 2010 ONCA 40

APPEAL BOOK ENDORSEMENT

1The appellant was convicted of manslaughter arising out of a serious driving incident. The trial judge found and we agree that the appellant’s degree of moral blameworthiness was very high. In the circumstances, the trial judge felt that a penitentiary sentence of seven years was warranted. On the facts of this case, we are not persuaded that the seven year term was outside of the appropriate range.

2We are, however, of the view that the trial judge erred in only crediting the appellant on a 1 for 1 basis for the lengthy period of pre-trial custody (550 days) he spent following a breach of his bail. Without minimizing the seriousness of the breach, absent evidence that the appellant was responsible for the significant delay, and given his youth and prospects for rehabilitation, we are of the view that credit on a 1.5 to 1 basis should have been given.

3Taking that into account and having regard to the positive information from the correctional authorities that we have received by way of fresh evidence, we would reduce the appellant’s sentence from five years and three months to four years and three months. In all other respects, the sentence imposed by the trial judge shall remain the same.

4In the result, leave to appeal sentence is granted and the sentence is varied in accordance with these reasons.