COURT OF APPEAL FOR ONTARIO
DATE: 20000824
DOCKET: C31900
RE: HER MAJESTY THE QUEEN (Respondent) –and– JAMES SMITH (Applicant/Appellant)
BEFORE: FINLAYSON, GOUDGE and FELDMAN JJ.A.
COUNSEL: William J. Parker, Q.C., for the appellant
Sandra Kingston, for the respondent
HEARD: August 10, 2000
On appeal from the sentence imposed by The Honourable Mr. Justice Derek T. Hogg dated March 11, 1999.
E N D O R S E M E N T
[1] The appellant applies for leave to appeal and appeals his sentence of six years in penitentiary after a conviction by Hogg J. of aggravated assault.
[2] The only argument advanced by the appellant was that the Crown had accepted that the appellant did not know his accomplice had a knife with him and that he intended to use it. This is irrelevant in the circumstances of this case. The appellant was clearly a principal in the planning and execution of this brutal assault and robbery. The two, in concert, intended that the appellant would choke the victim into unconsciousness with a garrote that the appellant brought with him. The appellant initiated the assault with the garrote and continued to strangle the victim even after he saw his accomplice produce a knife and wield it, stabbing the victim repeatedly. But for the intervention of a stranger after the assault and robbery, these two men would have been facing a first degree murder charge.
[3] We cannot see a meaningful difference between the conduct of the appellant and that of his accomplice. There is no reason to find disparity where both received the same sentence.
[4] The appellant is a young man (22 years at the time of offence) with a criminal record, but no crimes involving violence. He also cooperated with police and pled guilty. These are factors which would tend to mitigate his sentence. However, the trial judge took these circumstance into account when imposing sentence and we are satisfied that the circumstances of the offence warrant the sentence imposed.
[5] In the circumstances, while leave to appeal sentence is granted, the appeal is dismissed.
Signed: “G.D. Finlayson J.A.”
“S.T. Goudge J.A.”
“K. Feldman J.A.”