COURT OF APPEAL FOR ONTARIO
DATE: 20050912
DOCKET: C43814
RE: HER MAJESTY THE QUEEN (Respondent) v. ROBIN DALZIEL (Appellant)
BEFORE: WEILER, BLAIR AND LAFORME JJ.A.
COUNSEL: J. Di Luca for the appellant Phil Downes for the respondent
HEARD & ENDORSED: September 9, 2005
On appeal from the sentence imposed by Justice N.A. Dawson of the Superior Court of Justice dated May 6, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] On consent, in order to have count six conform to the Criminal Code, as it existed at the relevant time, we would amend count six of the indictment nunc pro tunc to charge the appellant with fraud over $1,000 and substitute a conviction for that offence.
[2] With respect to the sentence appeal, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. We can find no such error, nor can we conclude that the sentence is demonstrably unfit.
[3] The issues raised by the appellant were largely canvassed at the sentencing hearing. The trial judge found that as the appellant did reoffend while on probation previously, she was a risk to the community. The trial judge was entitled to make this finding. Having regard to the length of time over which this offence occurred, to the amount involved, and to the need for denunciation and deterrence, she was entitled to reject the imposition of a conditional sentence and to impose the custodial sentence she did. That said, we note the appellant’s model behaviour while incarcerated and the efforts she has made to assist herself to better cope when she is released and commend her for them. While leave to appeal sentence is granted, the appeal as to sentence is dismissed.