WARNING

THIS IS AN APPEAL UNDER THE

YOUNG OFFENDERS ACT

AND IS SUBJECT TO s. 38 OF THE ACT WHICH PROVIDES:

38.(1) Subject to this section, no person shall publish by any means any report

(a) of an offence committed or alleged to have been committed by a young person, unless an order has been made under section 16 with respect thereto, or

(b) of a hearing, adjudication, disposition or appeal concerning a young person who committed or is alleged to have committed an offence

in which the name of the young person, a child or a young person who is a victim of the offence or a child or a young person who appeared as a witness in connection with the offence, or in which any information serving to identify such young person or child, is disclosed.

(2) Every one who contravenes subsection (1), …

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

DATE: 20030522

DOCKET: C39404

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) –and–

R. B. (a young person)

BEFORE: LABROSSE, WEILER and CRONK JJ.A.

COUNSEL: Irwin A. Koziebrocki, for the appellant

Kelly Slate, for the respondent

HEARD: May 9, 2003

RELEASED ORALLY: May 9, 2003

On appeal from the disposition imposed by Justice Richard E. Jennis of the Ontario Court of Justice dated January 9, 2003.

E N D O R S E M E N T

[1] The appellant pleaded not guilty to the offence of theft under $5,000 and, on consent of the Crown, pleaded guilty to assault simpliciter. The plea was accepted by the trial judge.

[2] The appellant’s friend was seen by a homeowner carrying a knapsack and a stereo. Assuming that the goods had been taken from his home, the owner approached the appellant’s friend and a confrontation ensued. The appellant approached the area and punched and shoved the owner to help his friend. The appellant also threatened the owner and then exposed himself in front of the owner. Thereafter, the appellant and his friend fled the scene and were later apprehended by the police. Both were found to be significantly intoxicated.

[3] The owner did not suffer any injury at the time of the incident and suffered no loss of property.

[4] During submissions on disposition on November 4, 2002, defence counsel emphasized the appellant’s remorse, his industriousness, his renowned good character, and the support he was receiving from his family, relatives and friends in submitting that a conditional discharge with proper conditions was warranted in the circumstances. Crown counsel noted the seriousness of the charge and the positive contents of the pre‑disposition report. He was clearly not opposed to the defence submissions. He also said he supposed that it would be unlikely that the trial judge would feel it necessary to incarcerate the appellant. It was only after the trial judge remarked that incarceration may be necessary that Crown counsel deferred to the trial judge’s view. Even then, he did not appear to endorse a custodial disposition.

[5] On January 9, 2003, the trial judge imposed a disposition of secure custody for 45 days plus probation for a period of 15 months. The appellant seeks leave to appeal that disposition and, if leave be granted, appeals his disposition. He was released pending appeal by order of this court on January 23, 2003.

[6] The appellant is 18 years of age. He was 17 years old at the time of the offence. Neither he nor anyone in his family has had contact with the criminal justice system. He lives with his family and appears to have enjoyed a stable and happy upbringing in a good family. References submitted on his behalf confirmed that he was well-adjusted, polite and well- behaved. He does not appear to have a problem with alcohol, drugs or anger management. He is in the final stage of completing high school and plans to attend Mohawk College next September to learn a trade. He has held numerous part-time jobs.

[7] The circumstances of this offence are viewed as an isolated incident that was completely out of character for the appellant.

[8] The appellant pleaded guilty at an early stage. Furthermore, in the intervening 13 months between the incident and the imposition of the disposition, he has not had any legal problems and has not breached any condition of his release.

[9] The trial judge was obliged to consider and explore other alternative dispositions short of custody for a young offender. He failed to do so and, as a result, erred in law. Moreover, in the circumstances, the conclusion of the trial judge that a non-custodial disposition would be contrary to the public interest and would bring the administration of justice into disrepute is not supported by the record and is unreasonable. In our view, the trial judge failed to properly consider and apply the sentencing principles pertaining to first-time offenders and he also failed to properly consider rehabilitation and the needs of the young person.

[10] We would grant leave to appeal, allow the appeal and vary the disposition to time served. The probation order will stand.

Signed: “J.-M. Labrosse J.A.”

“K.M. Weiler J.A.”

“E.A. Cronk J.A.”