COURT OF APPEAL FOR ONTARIO

DATE: 20000619

DOCKET: C30220

RE: HER MAJESTY THE QUEEN (Respondent) –and– JAY LEWIS (Appellant)

BEFORE: CATZMAN, WEILER and FELDMAN JJ.A.

COUNSEL: David Finley, for the appellant Sam Scatch, for the respondent

HEARD: June 13, 2000

On appeal from the convictions imposed by Scime J. and jury dated October 10, 1997 and on appeal from the sentences imposed by Scime J. dated November 7, 1997.

E N D O R S E M E N T

[1] On March 14, 1996, Mr. Miette was brutally beaten in his own home. His mid-face was crushed, his throat was cut and he was stabbed several times. As a result, Mr. Miette lost an eye, suffered permanent disfigurement and continues to suffer from problems in regard to memory. He cannot eat solid food and has difficulty drinking liquids. After being beaten, Mr. Miette was robbed of his stereo, computer and other items of property. Following a trial before judge and jury, the appellant was found guilty of aggravated assault and robbery. He was sentenced to ten years imprisonment for the robbery and the conviction for aggravated assault was stayed.

[2] An acquaintance of the appellant, Mr. Highgate, told police, and later testified, that the appellant had confessed to him and threatened to kill him if he told anyone. The appellant was also charged and convicted of uttering a death threat for which he received a sentence of two years consecutive to the sentence for robbery. The appellant appeals both his convictions and sentences.

[3] Marie Beardmore, a boarder in Mr. Miette’s house at the time, eventually admitted that she was a perpetrator of the beating and robbery. She testified, however, that the appellant was not involved in the beating and robbery but solely with the disposition of the stolen property.

[4] The evidence of Marie Beardmore was contradicted not only by Mr. Highgate’s evidence but by the evidence of Ms. Fox, another boarder, who identified the appellant in a photo line-up A friend of Ms. Fox, who had the opportunity to observe the appellant from the same vantage point as she did, did not identify the appellant as the perpetrator of the crime. The appellant submits that the trial judge erred in his charge to the jury respecting identification evidence because he did not emphasize the non-identification of the appellant. This objection was not raised at trial and, while not conclusive, is a factor to consider.

[5] In our opinion, the trial judge’s charge to the jury on the issue of identification was sufficient. We did not call upon the Crown to respond to this ground of appeal as we were of the opinion there was no merit in it. The appellant did not pursue the other grounds of appeal raised in his factum. The appeal as to conviction is dismissed.

[6] We now turn to the sentence appeal which rests on the submission that the appellant and Ms. Beardmore should receive the same sentence.

[7] Ms. Beardmore, who pled guilty to the offences of robbery and aggravated assault, received consecutive sentences totalling ten years for the robbery and aggravated assault. The Court of Appeal held that, in the circumstances, the trial judge erred in principle in imposing consecutive sentences upon her. Having found that there was an error in principle, the Court of Appeal was entitled to impose the sentence the court considered appropriate for this offender. In light of the fresh evidence concerning Ms. Beardmore’s rehabilitative efforts, her total sentence was reduced from ten years to seven years.

[8] The appellant submits that the principle of parity dictates he is entitled to have his sentence similarly reduced on the robbery conviction from ten years to seven years. The appellant’s submission is that the sentence imposed by the Court of Appeal is indicative that the trial judge’s sentence of 10 years was outside the appropriate range of sentence. This was not the error in principle identified by this court in Ms. Beardmore’s case.

[9] At the time the sentence was imposed on the appellant, it was not an unfit sentence or outside the appropriate range of sentence for this offence. The trial judge took into account the principle of parity at the time he sentenced the appellant. In his very detailed and considered reasons, the trial judge also had regard for the fact that the appellant had been in custody for eighteen-and-a-half months prior to his trial, while Marie Beardmore had been in custody for nine months. Thus, while the length of sentence imposed with respect to the robbery was the same for both offenders, it is apparent that the trial judge did not view both offenders as being in the same circumstances. Had this been the case, the appellant would have been entitled to a lesser sentence because of his longer pre-trial custody.

[10] The fact that Ms. Beardmore’s sentence was reduced by this court based on her particular circumstances does not mean that the appellant is automatically entitled to have his sentence for robbery reduced by three years. The principle of parity in sentencing requires that persons who have committed the same crime be treated similarly provided that their circumstances are similar. Here, although both Ms. Beardmore and the appellant committed the same crime, their circumstances were not the same. Ms. Beardmore, by her plea and admission of guilt to the offence, expressed remorse for her crime. There is no similar mitigating circumstance insofar as the appellant is concerned. The appellant’s criminal record is also considerably more serious than that of Ms. Beardmore. Her longest period of incarceration, prior to being convicted for this offence, was six months, whereas the appellant had previously served two years less a day. The appellant’s record is indicative of escalating violence on his part. We have no information as to the appellant’s progress since his sentence. While parity is a consideration, each case must be viewed on its own merits.

[11] In conclusion, although Ms. Beardmore’s reduction in sentence by this court is a factor to be considered on the appellant’s appeal as to sentence, it is not the only factor. The sentence imposed by the trial judge was not unreasonable or outside the range of appropriate sentences for this offence and this offender. The trial judge committed no error in principle at the time this appellant was sentenced. Bearing in mind the principle of parity, we would not reduce the sentence.

[12] The appeal as to sentence is dismissed.

Signed: “M.A. Catzman J.A.” “K.M. Weiler J.A.” “K. Feldman J.A.”