DATE: 20041210

DOCKET: C41834

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – EDWIN WOGHIREN (Appellant)

BEFORE:

CRONK, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Michael W. Lacy

for the appellant

Lois McKenzie

for the respondent

HEARD & RELEASED ORALLY:

December 3, 2004

On appeal from the sentence imposed by Justice William Festeryga of the Superior Court of Justice dated March 23, 2004.

E N D O R S E M E N T

[1] On behalf of the appellant, Mr. Lacy makes two submissions. First, he argues that the sentence imposed was outside of the range for similar offences and offenders. Second, he submits that the trial judge – at least on the face of his reasons – failed to consider the appellant’s medical problems and the impact of pre-trial custody in exacerbating those problems.

[2] We do not agree.

[3] Having regard to the nature of the offence, the amount of cocaine involved and the fact that it was crack-cocaine, the appellant’s criminal record and his role as an operator of a medium sized operation and having regard particularly, to the evidence of the growing incidence of crack-cocaine related problems in the local community, the sentence imposed – albeit at the high end – was within the range of appropriate sentences: see R. v. Bajada, [2003] O.J. No. 721 (C.A.).

[4] Secondly, we are not persuaded that the trial judge ignored Mr. Woghiren’s medical condition and the impact of custody on him. The sentence followed immediately after submissions and directly after the appellant had made his submissions to the trial judge.

[5] In the end, we can find no error in principle on the part of the trial judge and are not persuaded that the sentence imposed was demonstrably unfit.

[6] It has been pointed out by the appellant that the sentences on the failure to comply with recognizance offences of 350 days pre-trial custody and two years less a day on each charge concurrent, exceeded the maximum sentence available of two years imprisonment. To the extent that these sentences are illegal, the court would vary them to time served of 350 days credited at two for one to correct the illegal sentence.

[7] Leave to appeal sentence is therefore granted. The appeal is allowed and the sentence varied to the extent referred to in the previous paragraph only. Otherwise, the sentence is affirmed and the appeal is dismissed.

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”

“R.A. Blair J.A.”