Court of Appeal for Ontario

Date: 2019-10-03 Docket: C66124 Judges: Juriansz, Benotto and Miller JJ.A.

Between

Her Majesty the Queen Appellant

and

Aljome Superales Respondent

Counsel

Michael Perlin, for the appellant

Jenny Prosser, for the respondent

Hearing and Release

Heard and released orally: September 27, 2019

On appeal from: The conviction entered by Justice David Aston of the Superior Court of Justice on March 8, 2018 and the sentence imposed on October 25, 2018.

Reasons for Decision

[1] We are of the view that the trial judge imposed a sentence that is demonstrably unfit by failing to recognize that denunciation and general deterrence are the paramount sentencing objectives for the offence and by concluding the minimum sentence required under s. 85(3)(a) was grossly disproportionate punishment for the offence. His declaration that s. 85(3)(a) is invalid is set aside.

[2] It falls to us to determine a fit sentence. The circumstances of this case are similar to those in R v. Clarke, 2014 ONCA 296. In Clarke this court upheld a global sentence of two years less a day. Noting that the offender in Clarke made greater use of the imitation firearm than did the respondent, we substitute a sentence of 18-months' imprisonment, for the five-month sentence imposed by the sentencing judge. The 18-month sentence will be reduced by five months to account for the credit granted by the sentencing judge to account for the respondent's pre-trial bail conditions, and by an additional 38 days as credit for 25 days the respondent spent in pre-sentence custody. The resulting effective sentence of imprisonment is 13 months less 38 days. The correctional authorities, when calculating the respondent's sentence, release, and parole eligibility, should account for the 113 days that we understand the respondent has already served to satisfy the sentence imposed by the sentencing judge. The probation order imposed by the sentencing judge remains unchanged. The victim surcharge is set aside pursuant to R. v. Boudreault, 2018 SCC 58.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.