DATE: 20030501

DOCKET: C39554

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and–

JAMES WAYNE DONEY (Appellant)

BEFORE:

CHARRON, MOLDAVER and FELDMAN JJ.A.

COUNSEL:

David M. Tanovich

for the appellant

Sarah Gray

for the respondent

HEARD:

May 1, 2003

On appeal from the sentence imposed by Justice Jon-Jo Douglas of the Ontario Court of Justice, sitting without a jury, dated August 1, 2002.

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

[1] In the particular circumstances of this case, it is our view that it was incumbent upon the sentencing judge to inquire further into the availability of suitable programs to address the appellant’s drug addiction. It was clear from the submissions of the Crown and duty counsel that the plea had been entered, and the joint submission fashioned, on the sole basis that the appellant would receive the treatment that he needed in the penitentiary system.

[2] While we take no issue with the sentencing judge’s concern that a sentence in the penitentiary might not be appropriate for this offender, the record was insufficient to allow the court to address the concerns for rehabilitation that were raised in this case. The appellant has now served 9 months of his sentence. This court has the benefit of fresh evidence filed on the appeal indicating that a placement is immediately available with the “Turning Point Program”, a drug rehabilitation program in Toronto, and the appellant is willing to participate in this program that includes a 4-month residential component.

[3] In the circumstances, the appeal is allowed and the sentence varied as follows: the term of imprisonment is reduced to a total of 9 months, attributed to the various offences as follows:

• theft of the motor vehicle: 2 months

• theft of gas: 2 months concurrent

• theft of guitar: 2 months concurrent

• food fraud: 2 months concurrent

• pursuit: 7 months consecutive.

[4] The terms of probation are modified to accord with the requirements that the appellant participate in and complete the residential drug treatment program, as per terms agreed upon by counsel.