DATE: 20050210

DOCKET: C42631

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – VINCENT LEPORE (Appellant)

BEFORE:

ROSENBERG, SIMMONS and LANG JJ.A.

COUNSEL:

Michael Dineen

for the appellant

Shelley Maria Hallett

for the respondent

HEARD & ENDORSED:

February 9, 2005

On appeal from sentence imposed by Justice Douglas H. Gowan of the Ontario court of Justice dated October 19, 2004.

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

[1] This was not a case for a conditional sentence given the nature of the offence, the appellant’s record for similar offences and that he was on probation for assault on this victim. In these circumstances, it was not necessary for the trial judge to give any more extended reasons for rejecting the defence submission.

[2] We are also satisfied that the sentence was not manifestly excessive. While Mr. Dineen in his very helpful submissions has referred us to many trial court decisions for this offence, the circumstances of this offence are very aggravated. We agree with the trial judge that specific deterrence was the paramount consideration.

[3] However, the trial judge gave no indication that he took into account the pre-trial custody. The appellant was entitled to credit for the pre-trial custody on a 2:1 basis.

[4] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence in count 3 is reduced to two months consecutive. In all other respects the appeal is dismissed.