DATE: 20040920

DOCKET: C41255

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) -and-

CRAIG COTTERELL (Applicant/Appellant)

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

COUNSEL: Christopher Hicks for the appellant

David Finley and Andrew Cappell for the respondent

HEARD: September 16, 2004

RELEASED ORALLY: September 16, 2004

On appeal from the sentence imposed by Justice Robert F.B. Scott of the Superior Court of Justice, sitting without a jury, on October 9, 2003.

E N D O R S E M E N T

[1] The trial judge made two errors in principle. First, he treated the likelihood that the appellant had a gun when he committed the robbery as an aggravating factor on sentence. The trial judge could only do so if satisfied beyond a reasonable doubt that the appellant had a gun. The trial judge found only that it was “likely” that the appellant had a gun.

[2] Second, by imposing the equivalent of a four-year sentence on a 25 year-old who, while he had a substantial criminal record, had never served a sentence of more than three months, the trial judge failed to follow the principle set out by this court in R. v. Borde (2003), 172 C.C.C. (3d) 225, which provides that where young offenders receive their first penitentiary sentence, that sentence should be as short as possible given the gravity of the offence.

[3] These two errors require that this court determine the appropriate sentence. We think that the sentence proposed by the Crown at trial – two years and three months, in addition to the nine months credited for pretrial custody, for a total sentence of three years – was a fit sentence. Consequently, we would grant leave to appeal, allow the appeal and vary the sentence to one of two years and three months.

Signed: “R. Roy McMurtry C.J.O.”

“Doherty J.A.”

“S.E. Lang J.A.”