DATE: 20040407

DOCKET: C41529

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– JOSEPH LATZER (Applicant/Appellant)

BEFORE:

CHARRON, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Larissa Fedak

for the appellant

Susan Chapman

for the respondent

HEARD AND ENDORSED:

April 7, 2004

On appeal from the sentence imposed by Justice Richard E. Jennis of the Superior Court of Justice on October 21, 2003.

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

[1] Both parties take the position that the circumstances of this case did not warrant the sentencing judge’s departure from the joint submission made on sentencing of the appellant for robbery and breach of probation. The joint submission was for a total sentence of 12 months, less credit for pre-trial custody on a 2-for-1 basis, plus probation for 3 years on specified conditions.

[2] The sentencing judge rejected the joint submission having regard to the relevant principles of law in respect of joint submissions and imposed a sentence of one year in addition to pre-trial custody, plus probation for two years instead of the proposed term of three years. It is our view that, while the sentencing judge adverted to the governing principles, he erred in their application. The joint submission was not unreasonable or one that would bring the administration of justice into disrepute. That is perhaps best exemplified by the quantum ultimately imposed in this case.

[3] Leave to appeal is allowed, the appeal is allowed, the sentence is varied to one of 12 months, less credit of 172 days (86 days of pre-trial custody x 2), plus probation for 3 years on conditions as imposed by the sentencing judge.

[4] In addition, there will be a condition that the appellant abstain from the consumption of alcohol. This latter condition was agreed upon as part of the joint submission but was not made part of the sentencing.

[5] The DNA order (complied with) and the s. 109 prohibition order are confirmed.