DATE: 20031014

DOCKET: C40528

COURT OF APPEAL FOR ONTARIO

WEILER, MacPHERSON and CRONK JJ.A.

B E T W E E N:

HER MAJESTY THE QUEEN

James Lockyer for the appellant

Respondent

• and -

PUNNAMKUZHIL SANEESH PUNNEN

Erika Chozik for the appellant

Appellant

Heard: October 8, 2003

On appeal from the sentence imposed by Justice John D. D. Evans of the Ontario Court of Justice dated July 29, 2003.

WEILER J.A.:

[1] The appellant seeks leave to appeal his sentence and, if leave is granted, appeals his sentence of 5 ½ months in jail for assault causing bodily harm. He has served approximately 1 month of his sentence. The appellant seeks to have this court impose a conditional sentence for the balance of his sentence or, alternatively, a suspended sentence.

[2] The appellant raises two grounds of appeal. First, he submits that the sentencing judge erred in principle in not considering the imposition of a conditional sentence. Second, he submits that the sentence was manifestly unfit.

[3] The chronology and underlying facts giving rise to the appeal are as follows. On April 1, 2003, the appellant was arrested and charged with theft under $5,000 and possession of break and enter tools in Burlington, Ontario. He was released pending trial upon entering into an undertaking with conditions, which included a curfew of 8 p.m. to 6 a.m., except for employment.

[4] On April 23, 2003, the appellant was again arrested in Burlington and charged with breaching this undertaking by failing to observe the curfew. The appellant was again released pending trial upon entering into a second undertaking, which included a condition that he remain at his residence (with his parents near Burlington, Ontario) between 7 p.m. and 6 a.m. and abide by house rules.

[5] On May 16, 2003, in breach of his undertakings, the appellant travelled to Bracebridge, Ontario with his girlfriend and friend, Ben Schreiber. The appellant rented a motel room intending to spend the weekend.

[6] On the evening of May 16, 2003 the victim and two of his friends met Ben Schreiber at a local Mike’s Mart and returned with him to the motel room rented by the appellant, where they continued drinking. The victim, having spent most of the evening in various drinking establishments, was very drunk. After the victim left, Mr. Schreiber noticed that some money he had left on a table was missing. He suspected that the victim had taken it. He and the appellant found the victim nearby on the street. Schreiber accused him of taking his money. The victim denied it. The appellant then struck him in the face and kneed him in the stomach. The victim fell to the ground, where he was kicked and punched by the appellant and Mr. Schreiber. The victim then took money out of his pocket and gave it to Mr. Schreiber. The appellant and Mr. Schreiber returned to the motel room. They were arrested the following morning and charged with the offences that form the subject of this sentence appeal.

[7] As a result of the assault, the victim suffered a black eye, a laceration around one eyebrow (which required three or four stitches), abrasions to his left elbow, which left a scar, and abrasions to his right flank, for which he was treated in hospital.

[8] On July 8, 2003, Ben Schreiber was sentenced to 2 months imprisonment following a guilty plea to assault causing bodily harm and one count of breach of a curfew. He had already served 53 days of pre-trial custody for which the sentencing judge credited him on a two for one basis and the effective sentence was therefore 6 months. In addition, he was placed on probation for two years. Mr. Schreiber did not have a criminal record but was on release at the time for the offence of robbery.

[9] On July 23, 2003, the appellant plead guilty to some of the Burlington charges. Namely, he plead guilty to theft under $5,000, two counts of possession under $5,000 and one count of fail to comply. He received a 40 day conditional sentence to be followed by 15 months of probation.

[10] On July 29, 2003, the appellant plead guilty to assault causing bodily harm and two counts of failing to comply with an undertaking before Mr. Justice Evans of the Ontario Court of Justice sitting in Bracebridge, Ontario. He was twenty years old at the time and he had the benefit of a good and supportive family background.

[11] Following the appellant’s plea of guilt, defence counsel (who is not counsel on this appeal) asked the judge to impose a sentence that would allow the appellant to attend a business accounting program at the community college to which he had been admitted and suggested a “short, sharp” period of incarceration. The Crown sought a period of incarceration of 9 to 12 months noting that the assault, which included kicking the victim in the body and head area while he was down on the ground, could have resulted in far more serious injuries and that deterrence and denunciation were paramount.

[12] The sentencing judge sentenced the appellant to 5 ½ months imprisonment for the assault and two months concurrent on each fail to comply. This sentence was in addition to 7 days served in pre-trial custody. In addition, a D.N.A. order and a weapons prohibition for five years were imposed.

[13] With respect to the first ground of appeal, we note that at no time during the proceedings did the appellant’s counsel ask the sentencing judge to consider imposing a conditional sentence. Having regard to the positions of counsel at the sentencing hearing, it is not surprising that the sentencing judge’s reasons for sentence do not reflect any overt consideration of whether a conditional sentence was appropriate. In the circumstances, we are not persuaded that this omission amounts to an error in principle. The sentencing judge was clearly of the opinion that a conditional sentence was not appropriate having regard to the principle of parity in sentencing and the appellant’s disregard for the conditions of his release at the time these offences were committed. The fact that the appellant did not commit a further offence during the short time he was on bail for these offences does not, in and of itself, mean that a conditional sentence should have been imposed.

[14] With respect to the second ground of appeal, the appellant submits that the sentencing judge did not balance the principle of rehabilitation against general deterrence. Although the sentencing judge’s reasons do not specifically mention any sentencing principles, we are not persuaded that he failed to consider rehabilitation as well as general and specific deterrence. The sentence he imposed was midway between the period of incarceration sought by each counsel in his submissions and is itself some indication that the sentencing judge was attempting to balance these principles. In any event, the sentence was not manifestly unfit.

[15] In the absence of an error in principle or the sentence originally imposed being manifestly unfit, we are not at liberty to interfere with the sentence. We note that the fresh evidence filed, which indicates that the appellant is attending his business classes and appears to be functioning satisfactorily in the community, could be brought to the attention of the appropriate authorities in support of a request that the appellant be considered for immediate temporary absence or parole as soon as he is eligible.

[16] Accordingly, while we would grant leave to appeal sentence, the appeal as to sentence is dismissed.

RELEASED: Oct. 14/03

“KMW”

“Karen M. Weiler J.A.”

“I agree J.C. MacPherson J.A.”

“I agree E.A. Cronk J.A.”