DATE: 20030917

DOCKET: C35375

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROBERT DURSLEY (Appellant)

BEFORE:

BORINS, MACPHERSON and CRONK JJ.A.

COUNSEL:

David E. Harris

for the appellant

Kim Crosbie

for the respondent

HEARD:

September 15, 2003

On appeal from the conviction entered on September 27, 2000 and the sentence imposed on October 30, 2000 by Justice Robert E. Zelinski of the Ontario Court of Justice.

E N D O R S E M E N T

Released Orally: September 15, 2003

MACPHERSON and CRONK JJ.A.:

[1] In the context of comprehensive reasons for sentence the trial judge misused the rehabilitation factor by using it as a reason for imposing a custodial sentence. This error requires us to impose a fit sentence.

[2] We agree with the trial judge that a custodial sentence was appropriate in this case. See: R. v. Cromien (2002), 155 O.A.C. 128 and R. v. D. R. (2003), 169 O.A.C. 55.

[3] However, in light of the time the appellant has already spent in custody (53 days), we would reduce his sentence to time served plus an additional six months in custody. The probation components of the sentence would remain unchanged.

"J. C. MacPherson J.A."

"E. A. Cronk J.A."

BORINS J.A. (Dissenting):

[4] I agree with the majority that a custodial sentence was appropriate. However, it has been two and three-quarter years since the appellant was released on bail pending the hearing of the appeal. Through no fault of his, it has taken this period of time for the appeal to be argued.

[5] Because of this lengthy delay, in my view, this is a case in which it would not be appropriate to require that the appellant be returned to jail, if only for a short time. I would, therefore, reduce the sentence to time served (53 days), without disturbing the terms of the probation order.

"S. Borins J. A."