DATE: 20051024

DOCKET: C43355

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROBERT THERIAULT (Applicant)

BEFORE:

ROSENBERG, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

Robert Theriault

In person

Joseph Di Luca

for the appellant (duty counsel

David Finley

for the respondent

HEARD:

September 28, 2005

On appeal from conviction by Justice Robert MacKinnon of the Superior Court of Justice dated January 27, 2005 and sentence imposed dated March 11, 2005.

E N D O R S E M E N T

[1] The only issue on the conviction appeal concerns the application of the rule against multiple convictions for the same delict (the rule in R. v. Kienapple (1974), 15 C.C.C. (2d) 524 (S.C.C.)). In the circumstances of this case and especially having regard to the wording of the indictment counts 2 and 7 must be stayed. In all other respects the appeal from conviction is dismissed.

[2] With respect to sentence, our principal concern is with disparity. See Criminal Code s. 718.2(b). The appellant, unlike his co-accused, pleaded not guilty. Giving full effect to the mitigating value of a guilty plea and that the co-accused pleaded guilty to the less serious offence of assault causing bodily harm, we are nevertheless of the view that the disparity between the sentence imposed on the appellant and on the co-accused cannot be justified.

[3] The appellant received a sentence almost twice as long as any of the co-accused. The clearest example of this disparity is with the co-accused Nichols who was twice the age of the appellant and had a more serious record including convictions for assault, break and enter and weapons offences. Taking into account pre-trial custody, Nichols received an effective sentence of three and one-half years, while the appellant received a sentence of five years. Another co-accused Bridger received an effective sentence of approximately two years taking into account pre-trial custody. He was several years older than the appellant and had a similar record.

[4] The trial judge made no finding that the appellant was in any different position than any of the co-accused. To the contrary he described the offence as “part of a criminal swarm”.

[5] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence on count #1 is reduced to twelve months imprisonment and on count #3 to twelve months imprisonment consecutive for a total sentence of twenty-four months imprisonment (in addition to credit of twenty-four months for twelve months pre-trial custody).

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“R.G. Juriansz J.A.”