DATE: 20030501

DOCKET: C39146

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and–

PRZEMYSLAW BANASIK and MICHAL MIODUSZEWSKI (Appellants)

BEFORE:

CHARRON, MOLDAVER and FELDMAN JJ.A.

COUNSEL:

Dana Garrick

for the appellants

Kelly Slate

for the respondent

HEARD:

May 1, 2003

On appeal from the sentence imposed by Justice Norman S. Douglas of the Ontario Court of Justice dated November 21, 2002.

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

[1] In our view, there was an insufficient basis on this record to support the sentencing judge’s finding that this was a “premeditated, planned criminal activity”. It is apparent from his reasons for sentence that this finding formed an important part of the sentencing judge’s decision that a short, sharp term of imprisonment was required to meet the principles of sentencing. In the absence of this aggravating circumstance, we are of the view that the sentence was excessive having regard to the circumstances of each offender.

[2] Consequently, the appeal is allowed, the sentence is varied to one of time served (9 days, plus the terms of probation).