DATE: 20040721

DOCKET: C41358

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARK BURKE (Appellant)

BEFORE:

ABELLA, MOLDAVER and GOUDGE JJ.A.

COUNSEL:

Scott Reid

for the appellant

Anya Weiler

for the respondent

HEARD AND ENDORSED:

July 9, 2004

On appeal from the sentence imposed by Justice David A. Fairgrieve of the Ontario Court of Justice dated July 28, 2003.

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

[1] The trial judge gave careful and considered reasons for refusing the accept the joint submission of 18 months less time already spent in pre-trial custody. In our view, he was correct in concluding that the proposed sentence was far too low and would bring the administration of justice into disrepute.

[2] In light, however, of the trial judge’s conclusion that the time spent in pre-trial custody of 9 months should be credited on a 3-for-1 basis totalling 27 months, the total sentence imposed of 47 months was manifestly too high. In all the circumstances, we are of the view that a penitentiary term of 3 years would have been appropriate. Since the appellant has already served almost 12 months in addition to the pre-trial custody (credited at 27 months), we would vary the sentences to time served.

[3] Leave granted and the appeal accordingly allowed.