DATE: 20020226 DOCKET: C35999
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) -and- WINSTON JASON MATTHEWS (Appellant)
BEFORE:
LASKIN, ROSENBERG and MOLDAVER JJ.A.
COUNSEL:
Winston Jason Matthews
In person
Graeme Cameron
For the respondent
HEARD:
November 27, 2001
On appeal from the sentence of four years imposed by Justice D. Cooper on February 2, 2001.
E N D O R S E M E N T
[1] On January 25, 2002, the appellant pleaded guilty before the Honourable Mr. Justice Cooper to one count of robbery and one count of robbery with a firearm (the Ancaster offences). On February 2, 2001, Justice Cooper sentenced the appellant to four years concurrent on each count. That sentence however, was made consecutive to a seven-year sentence the appellant had received on August 2, 2000 from a different judge following his pleas of guilty to charges of robbery, conspiracy to commit robbery and kidnapping (the Brantford offences). The appellant’s co-accused, Joseph Boutilier, pleaded guilty before a different judge to the Ancaster and Brantford charges and he received a global sentence of seven years.
[2] The appellant appeals from the four-year sentence imposed by Justice Cooper. He does not quarrel with the length of that sentence but with the fact that it was made consecutive, not concurrent, to the seven-year sentence imposed on the Brantford charges. In that regard, he raises the issue of disparity and requests that he receive the same sentence as his co-accused.
[3] With the able assistance of Mr. Robert Goddard of the Queen’s Correctional Law Project, the appellant has persuaded us that the appeal must be allowed. We see no reason why the appellant’s global sentence should be four years longer than the global sentence of seven years imposed upon his co-accused Boutilier. The appellant was 18 years old and Boutilier was 30 years old when they committed the Ancaster and Brantford offences. Both men played equal roles in the commission of the crimes and both had equivalent criminal records.
[4] In the circumstances, we think that if the appellant had followed the same course as Boutilier and had entered pleas of guilty to the Brantford and Ancaster charges before one judge, he would, in all likelihood, have received the same seven-year global sentence that was imposed on Boutilier, a sentence which Crown counsel endorsed.
[5] Accordingly, we would grant leave to appeal and vary the four-year sentence imposed on the Ancaster offences by making it concurrent with the global sentence of seven years imposed on the Brantford offences. In coming to this conclusion, we wish to make it clear that Mr. Justice Cooper is not to be faulted for imposing the sentence he did. The disparity issue was not raised before him and the sentence he imposed was put forward as a joint submission by defence and Crown counsel.
Signed: “John Laskin J.A.”
“Marc Rosengerg J.A.”
“M. J. Moldaver J.A.”