COURT OF APPEAL FOR ONTARIO

DATE: 2005-11-30

DOCKET: C42446/C42702

RE: HER MAJESTY THE QUEEN (Respondent) – and – RICHARD COLLETTE (Appellant)

BEFORE: MOLDAVER, FELDMAN and ROULEAU JJ.A.

COUNSEL: Sarah Egan for the appellant Lance Beechener for the respondent

HEARD & ENDORSED: November 25, 2005

On appeal from conviction by Justice R. Clark of the Superior Court of Justice dated July 2, 2004 and sentence imposed August 17, 2004.

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

[1] We see no error in the reasons of the trial judge for finding the appellant guilty of attempt. Accordingly, the appeal from conviction is dismissed.

[2] With respect to sentence, we think that the trial judge failed to adequately consider that Kaiser was the instigator, that the appellant, unlike Kaiser, was only convicted of an attempt and that Kaiser’s record, though less extensive than the appellant’s, was more serious and more current. Had the trial judge given these factors the weight they deserved, we think he would have given the appellant a sentence in the range of twelve months, like Kaiser. In all of the circumstances, we think that the appellant’s sentence on the attempt count should be reduced to twelve months plus probation.

[3] In so concluding, we have taken into account the positive steps taken by the appellant both before trial and since he has been on bail pending appeal. These steps are encouraging and suggest that the appellant may be on the road to rehabilitation. No doubt, the parole authorities will take these factors into account in determining whether he should be paroled.

[4] In that regard, we note that in view of the reduction of his sentence to twelve months, he will have served one third of his sentence to date.

[5] Accordingly, leave to appeal sentence is granted and the sentence on the attempt count is reduced to twelve months plus probation on the terms and conditions imposed by the trial judge. The sentence on the other count (nine months concurrent) remains the same.