COURT OF APPEAL FOR ONTARIO

DATE: 20040914

DOCKET: C41515

RE: HER MAJESTY THE QUEEN (Appellant) v. CHRISTOPHER NEWTON (Respondent)

BEFORE: McMURTRY C.J.O., DOHERTY AND LANG JJ.A.

COUNSEL: Lisa Joyal for the appellant J. Scott Cowan for the respondent

HEARD & ENDORSED: September 14, 2004

On appeal from the sentence imposed by Justice B. McDougall dated February 23, 2004.

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

[1] It is conceded that the trial judge inadvertently gave four for one credit for pre-trial custody rather than the two for one intended. Had the error not been made, the respondent would have received a sentence of 25 months rather than the sentence imposed.

[2] We believe that a sentence of 25 months is appropriate. The respondent served seven moths before his release in July of 2004.

[3] We agree that there is an added hardship resulting from the respondent’s re-incarceration.

[4] We would vary the sentence of the trial judge to one of 21 months having regard for the added hardship of re-incarceration. The respondent will receive credit for time served leaving a remnant of 14 months.

[5] Leave to appeal sentence granted and the sentence is varied accordingly.