COURT OF APPEAL FOR ONTARIO

DATE: 20011123 DOCKET: C36659

RE:

HER MAJESTY THE QUEEN (Appellant) v. RAYMOND PETTLEY (Respondent)

BEFORE:

McMURTRY C.J.O., ROSENBERG and SIMMONS JJ.A.

COUNSEL:

Stacey D. Young,

for the appellant

Valeria Ruoso,

for the respondent

HEARD:

November 21, 2001

RELEASED ORALLY:

November 21, 2001

On appeal from the sentence imposed by Justice Donald C. Downie dated June 13, 2001

E N D O R S E M E N T

[1] The trial judge was faced with a difficult problem by reason of the disparate sentences imposed on the three co-accused. We cannot say that he erred in imposing a sentence in the middle of the sentences imposed on the other accused given the respondent’s role, young age and previous good character.

[2] We are, however, of the view that a conditional sentence should not have been imposed given the serious nature of the offence and the importance of denunciation in this type of offence. The trial judge placed too much emphasis on disparity and the sentence was not commensurate with the seriousness of the offence. That said, given the passage of time, we are not satisfied that it is in the public interest to now incarcerate the respondent. To imprison the respondent at this point would cause additional hardship. The offence was totally out of character, the respondent was extremely remorseful and seems to be well along in his rehabilitation; he has full-time employment, has the support of his family and has been performing the community service ordered by the trial judge. While we would therefore not interfere at this stage with the decision that the sentence be served in the community, we think the terms of the conditional sentence were too lenient.

[3] Leave to appeal sentence is granted and the conditional sentence is increased to two years less one day on the same terms as those imposed by the trial judge except that the curfew will be for the entire two years less one day. The probation order will stand.

(signed) “R. McMurtry C.J.O.”

(signed) “M. Rosenberg J.A.”

(signed) “J. Simmons J.A.”

November 23, 2001.