DATE: 20030114
DOCKET: C38651

COURT OF APPEAL FOR ONTARIO

WEILER, ABELLA and CHARRON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

• and -

B.M. (a young person)

Appellant

Kelly Slate, for the respondent
Glen Jennings, for the appellant

Heard: January 8, 2003

The appellant, B.M., appeals against the sentence imposed by Justice Peter R. Mitchell of the Ontario Court of Justice dated March 28, 2002. Charge

[1] The appellant plead guilty and was convicted of robbery and sexual assault under s. 344 and s. 271 of the Criminal Code, respectively. He was sentenced by Mitchell J. on March 28, 2002 to time served (229 days) plus sixteen months secure custody and eight months open custody to be followed by a period of probation of four months.

Nature of Appeal

[2] This is an appeal to sentence only. The appellant submits that the period of incarceration should be reduced by eliminating the period of open custody.

Facts

[3] On Saturday, August 11, 2001 at 10:15 p.m., the first complainant was walking home from a restaurant in the City of Burlington. The appellant grabbed her from behind, placed his right arm around her neck, and threw her to the ground. The appellant said "Are you all right, bitch? You need some cock." The accused then shoved his fingers down her throat. He grabbed her purse, which contained personal identification and $80.00, and ran away with the items. The victim suffered bruises and other minor injuries as well as psychological trauma.

[4] On the same evening at approximately 11:00 p.m., the second complainant was leaving a restaurant in Burlington and began to walk home. The appellant grabbed her from behind and threw her to the ground as she entered a hydro right of way near her home. He attempted to remove her belt and grabbed at her breast saying, "If you want to live, shut the fuck up, or I'll kill you." The appellant then stuck his fist in the victim's mouth. The victim screamed and her father, who happened to be walking the family dog nearby, came to investigate. He only realized it was his daughter when he saw her on the ground. The father grabbed the appellant who managed to run away. The appellant was seventeen years old and intoxicated when he committed both offences.

[5] The appellant was arrested that night and remained in custody from the date of his arrest on August 11, 2001 to the date of his plea of guilty on January 30, 2002. The trial judge imposed a sentence that exceeded that recommended by both crown counsel and defence by three months (one month more of closed custody and two months more open custody). On appeal, the appellant submits that his dysfunctional and abusive family background, extensive pre-trial custody, and the progress he had made by the time of sentencing should have been taken into account by the trial judge.

[6] The appellant submits that the trial judge failed to consider the extremely difficult upbringing of the young offender. His father was an alcoholic, there was constant fighting between his parents, he was left to fend for himself at an early stage and he has a learning disability. The fresh evidence filed indicates that while in custody the young offender has been able to complete high school credits, and has regularly attended Alcoholics Anonymous and psychological counselling. There was a serious incident in the unit in which he resided and he showed maturity by not becoming involved in the incident with his peers. The appellant was in custody before sentencing for 7 ½ months. He was sentenced to a further 24 months. The appellant submits, in the alternative, that the sentence imposed was excessive and outside the appropriate range.

[7] We agree that the sentence is at the very upper end of the range. In the submissions of defence counsel at trial, the trial judge had the benefit of the submissions respecting the home circumstances of the appellant and his expression of remorse. The trial judge did not refer to this in his reasons but he did refer to the prior pre-sentence report and noted that the appellant was four months into his one year of probation at the time these offences were committed. We acknowledge that the fresh evidence filed indicates that the appellant has made significant progress in addressing many of the concerns raised by these offences. However, we are concerned that the psychological summary indicates that very little has been addressed regarding seriousness of the offences and achieving an understanding of what happened and why. It is our view that the more appropriate place to take the appellant's progress into account is on a review of the sentence in the Youth Court after one year of the sentence has been served, which would be in March of this year. At that time, the fact and duration of whether open custody remains appropriate should be considered. The appeal from the disposition as to sentence is therefore dismissed.

Released: Jan. 14, 2003 "KMW"

Signed: "Karen M. Weiler J.A." "R.S. Abella J.A." "Louise Charron J.A."