COURT OF APPEAL FOR ONTARIO

DATE: 20000124

DOCKET: C32595

RE: HER MAJESTY THE QUEEN (Respondent)

v. K. W. (a young person) (Appellant)

BEFORE: ABELLA, ROSENBERG and MacPHERSON JJ.A.

COUNSEL: Bernard Cugelman,

for the appellant

Karen Shai,

for the respondent

HEARD: January 18, 2000

On appeal from the disposition imposed by Douglas J. dated July

5, 1999.

E N D O R S E M E N T

[1] As the Crown properly concedes, a disposition totaling three

and one-half years is illegal as it exceeds the two-year maximum

prescribed by s.20(3) of the Young Offenders Act. Therefore, it

falls upon this court to impose a sentence that complies with the

law and balances the various factors and principles set out in

the Young Offenders Act.

[2] We agree with counsel for the appellant that the trial judge

erred in principle in using factors concerning adult offenders

virtually to the exclusion of the principles set out in the Young

Offenders Act. This error led the trial judge to impose a very

lengthy term of custody. Having said that, this was a very

serious offence which had a serious impact on the complainant and

her family. While there was some indication that the appellant

was making some progress in treatment, the expert reports were

equivocal and provided little assistance in determining the

underlying cause of this very serious conduct.

[3] The appellant served approximately three and one-half months

of the secure custody term before being released on bail and also

spent one and one-half months in pre-disposition custody. While

we are always reluctant to return a young offender to custody in

circumstances such as these, we believe that the appellant could

continue to benefit from the treatment available at the Syl Apps

Youth Centre and that such treatment may be required for the

protection of the public.

[4] Reducing the custodial portion of the disposition to nine

months, as we intend to do, and taking into account the pre-

disposition custody, this means that in effect the appellant is

subject to a disposition of twelve months. This is a significant

custodial term given the appellant’s age and background.

[5] Accordingly, the appeal is allowed and the disposition

reduced to nine months secure custody and fifteen months

probation on the same terms as those imposed by the trial judge.

(Signed) "R. S. Abella J.A."

(Signed) "M. Rosenberg J.A."

(Signed) "J. C. MacPherson J.A."