DATE: 20031215

DOCKET: C38893

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – KELLY STINSON (Appellant)

BEFORE: O’CONNOR A.C.J.O., FELDMAN and GILLESE JJ.A.

COUNSEL: Glen F. Jennings For the appellant

Feroza Bhabha For the respondent

HEARD: December 5, 2003

RELEASED ORALLY: December 5, 2003

On appeal from sentence imposed by Justice Mitchell of the Ontario Court of Justice on July 3, 2002.

E N D O R S E M E N T

[1] We agree that the trial judge erred in law by departing from the joint submission. The joint submission was for three years, minus credit for pretrial custody, at the rate of either two for one, or one for one. The pretrial custody was three and a half months. The trial judge concluded that no credit should be given because of the appellant’s criminal record.

[2] In our view, given the relatively small difference in sentence between three years and three years minus three and a half or seven months, we see no basis to conclude that the sentence proposed in the joint submission was contrary to the public interest or would bring the administration of justice into disrepute.

[3] We would therefore grant leave to appeal sentence, allow the appeal, set aside the sentence and impose a sentence of three years minus credit for time served, in this case on the basis of one for one, which is 106 days.

Signed: “ D. O’Connor A.C.J.O.”

_____ “K. Feldman J.A.”

_____ “E.E. Gillese J.A.”