DATE: 20030624

DOCKET: C39802

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. DAVID GILLAN (Applicant/Appellant)

BEFORE:

DOHERTY, ARMSTRONG JJ.A. and BLAIR R.S.J. ad hoc

COUNSEL:

Sarah Egan

for the appellant

Stacey D. Young

for the respondent

HEARD & ENDORSED:

June 13, 2003

On appeal from the sentence imposed by Justice W.J. Festeryga of the Superior Court of Justice dated December 10, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant alleges two errors in principle.

(i) Disparity

[2] The difference between the appellant’s sentence (38 months) and the co-accused’s sentence (23 months) is justified by:

• the appellant pled guilty to more charges;

• the appellant’s record for break and enter is much worse than the co-accused’s; and

• the co-accused has an 8 year gap in his record. The appellant was released three weeks before he committed these offences.

(ii) The discount for the guilty plea

[3] The trial judge was entitled to take the timing of the guilty plea into account in assessing its mitigation value. He did no more.

[4] The appellant also contends that the sentence is disproportionate to the offence. We disagree. In the circumstances, the trial judge was required to stress denunciation and deterrence. The sentence is not manifestly excessive. Leave to appeal is granted, but the appeal is dismissed.