DATE: 20050826

DOCKET: C42982

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – LENNOX GILGEOURS (Appellant)

BEFORE:

BLAIR, LANG JJ.A. and KOZAK J. (ad hoc)

COUNSEL:

Mara Greene

for the appellant

Anya Weiler

for the respondent

HEARD:

August 23, 2005

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

[1] In our view the trial overreacted to two post-conviction circumstances, namely, the fact that the appellant did not attend for his sentence hearing and that he was in the interim arrested on another drug possession charge (for which he was separately convicted and sentenced). The unfavourable aspects of the pre-sentence report focused primarily on these factors. Respectfully, these factors did not justify more than doubling the custodial sentence previously sought by the Crown (12 months plus pre-trial custody). By imposing the sentence he did, the trial judge failed adequately to apply the parity principle respecting the sentencing of co-accused for similar crimes in similar circumstances. Nothing in the appellant’s antecedents justified a three-fold differential.

[2] Leave to appeal sentence is therefore granted and the sentence on the charge of production of marijuana is varied to one of twelve months plus pre-trial custody. The sentence otherwise remains the same.