DATE: 20010126

DOCKET: C34124

C34459

COURT OF APPEAL FOR ONTARIO

BEFORE: FINLAYSON, LABROSSE and LASKIN JJ.A.

RE: HER MAJESTY THE QUEEN (Respondent) v. M.S. (a young person) (Applicant/Appellant) (C34124)

AND RE: HER MAJESTY THE QUEEN (Respondent) v. M.T. (a young person) (Applicant/Appellant) (C34459)

COUNSEL: Peter Copeland, for the appellant M.S. Irwin Koziebrocki, for the appellant M.T. Graham Zoppi, for the respondent

HEARD: January 23, 2001

RELEASED ORALLY: January 23, 2001

The appellants M.S. and M.T. appeal from their individual sentences imposed by Justice L. T. G. Collins on February 22, 2000

E N D O R S E M E N T

[1] The appellants pled guilty to numerous offences, including a robbery, several break-ins and thefts committed during a six-month period which extended over their respective eighteenth birthdays.

[2] The Crown and the defence jointly recommended a sentence of two years less a day in custody, plus three years’ probation and 240 hours of community service. It was part of the submission that there should be no distinction between the appellants for the purpose of the sentences. The sentencing judge rejected the joint submission.

[3] The appellant S. was sentenced to one year’s secure custody to be followed by a four-year penitentiary sentence. The appellant T. was sentenced to a disposition of one year’s secure custody to be followed by a three-year penitentiary sentence. They both appeal their total sentences.

[4] Both appellants fully cooperated with the police in the investigation of the offences. They both exhibited genuine remorse and pled guilty at an early stage. The appellant S. had received two dispositions of open custody and served seven days’ secure custody as a young offender. The appellant T., also as a young offender, had received a suspended sentence with 35 hours of community service. Both were first-time adult offenders.

[5] The appellants had committed serious offences, which demanded the imposition of severe sentences. However, the sentencing judge imposed sentences that were clearly excessive.

[6] A significant factor motivating the joint submission was to avoid placing these youthful offenders in the penitentiary, a valid objective in the circumstances of this case. A maximum reformatory sentence plus probation for three years and community service is a severe sentence for these young first-time adult offenders who were described as amenable to rehabilitation. Considering their progress reports, the possibility of their respective rehabilitation is now being confirmed.

[7] The joint submission had been arrived at by experienced counsel after consideration of all the relevant circumstances. It was within an acceptable range for the offences committed and it cannot be said that the joint submission would bring the administration of justice into disrepute or was contrary to the public interest. Conversely, it was contrary to the public interest, in the circumstances of this case, to send these first-time adult offenders to the penitentiary.

[8] The appeals are allowed. To give effect to the joint submission, the appellants will serve the one-year secure custody that was imposed and in addition will be sentenced to one year in the reformatory, to be followed by probation for two years on the terms proposed by Crown counsel at trial, plus 240 hours of community service.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “John Laskin J.A.”