DATE: 20050603

DOCKET: C43169

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ALEXANDER LAWRENCE (Applicant/Appellant)

BEFORE:

MACPEHRSON, ARMSTRONG and LANG JJ.A.

COUNSEL:

Melvyn Green

for the appellant

Amy Alyea

for the respondent

HEARD & ENDORSED:

May 31, 2005

On appeal from the sentence imposed on January 10, 2005 by Justice Leonard T. Montgomery of the Ontario Court of Justice.

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 sentenced the appellant to 18 months in custody and 15 months probation for the offence of robbery.

[2] The appellant contends that the trial judge made three errors.

[3] First, the appellant contends that the trial judge overemphasized the principles of general deference and denunciation. We agree. In many cases, especially R. v. Priest, (1996), 110 C.C.C. (3d) 289 (C.A.), this court has emphasized the paramountcy of specific deference and rehabilitation in sentencing youthful, first offenders. The trial judge virtually ignored these principles in a case which cried out for a careful analysis of these factors.

[4] The appellant submits that the trial judge ignored the principle of restraint in imposing a first custodial sentence. We agree. The 18 month sentence for this offender was much too high.

[5] The appellant submits that the trial judge ignored the appellant’s aboriginal status. We agree. He did not engage in even a hint of the analysis required by R. v. Gladue (1999), 133 C.C.C. (3d) 385 (S.C.C.).

[6] The appeal is allowed. In light of the fresh evidence, which the Crown concedes is properly admitted, which demonstrates genuine educational and occupational opportunities for the appellant, an appropriate sentence is time served, plus probation for 15 months.

[7] The Crown concedes that the prohibition order relating to firearms should be for a period of 10 years. This is what the trial judge’s reasons provide for; unfortunately, he checked the wrong box on the formal order.