DATE: 20020118
DOCKET: C30846

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– HASSAN JARRAR (Appellant)

BEFORE:

ROSENBERG, GOUDGE and FELDMAN JJ.A.

COUNSEL:

Daniel G. Scully, for the appellant

Jennifer Woollcombe, for the respondent

HEARD:

January 10, 2002

RELEASED ORALLY:

January 10, 2002

On appeal from the conviction imposed by Justice John F. Hamilton, sitting with a jury, dated April 28, 1997 and from the sentence imposed by Justice Hamilton dated June 9, 1997.

E N D O R S E M E N T

[1] The trial judge imposed a life sentence on the basis that the appellant was “a dangerous person and that some control must be kept on you for the rest of your life.” There was no pre-sentence report or expert evidence to support this finding. It was not argued at trial by the Crown that this was a case for a life sentence based upon “stark horror” and, indeed, Crown counsel at trial sought a lengthy but definite sentence.

[2] The post-sentence material indicates that, while there continues to be concern about the appellant’s prospects for rehabilitation because he refuses to take treatment, he represents only a moderate risk for re-offending.

[3] The appellant was twenty-two years of age at the time of this offence and, prior to committing this offence, had only one prior finding of guilt for assault for which he received a conditional discharge. He was, however, on probation when he committed this offence.

[4] In our view, the life sentence cannot be sustained on the basis that it was imposed at trial. The trial judge erred in principle in imposing a life sentence in this case on the basis of a finding of dangerousness without clear evidence to support that finding. In view of the post-sentence material, the appropriate disposition is a definite sentence. Given the very serious nature of the attack, that sentence must be a lengthy one. Taking into account the pre-trial custody, a sentence of fifteen years would be appropriate.

[5] Accordingly, leave to appeal is granted, the appeal from sentence is allowed and the sentence is varied to fifteen years’ imprisonment.

SIGNED BY: "M. Rosenberg J.A."

" S. T. Goudge J.A."

" K. Feldman J.A."