DATE: 20031006

DOCKET: C39324

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and– BRIAN SKELTON (Appellant)

BEFORE: LASKIN, GOUDGE and FELDMAN JJ.A.

COUNSEL: Joseph Wilkinson for the appellant Eric Siebenmorgan for the respondent

HEARD: September 30, 2003

RELEASED ORALLY: September 30, 2003

On appeal from the sentence imposed by Justice R. Jeffrey Flinn of the Superior Court of Justice, sitting without a jury, dated August 26, 2002.

E N D O R S E M E N T

[1] The gravamen of these offences were the firearms offences. The trial judge was of the view that these offences merited a one‑year sentence. Although we might have viewed them more seriously, we are satisfied that one year for these offences was within an acceptable range.

[2] Where the trial judge then erred, in our opinion, was in imposing a consecutive sentence of ten months for possession of a candlestick holder. That offence, at best, merited a further sentence of one month. Thus, we conclude that a total sentence of thirteen months on top of ten months pre‑trial custody is a fit sentence. Unfortunately, the trial judge did not, as he should have, specify the credit he was giving for pretrial custody. In concluding that thirteen months is a fit sentence, we take pre‑trial custody into account on a two for one basis. As the appellant has now served thirteen months, we vary his sentence to time served.

[1] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to time served.

“John Laskin J.A.”

“S.T. Goudge J.A.”

“K. Feldman J.A.”