DATE: 20050318

DOCKET: C42592

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ROLAND JAMES HILL (Applicant/Appellant)

BEFORE:

GOUDGE, FELDMAN and JURIANSZ JJ.A.

COUNSEL:

Robert Sheppard

for the appellant

Elise Nakelsky

for the respondent

HEARD & RELEASED ORALLY:

March 11, 2005

On appeal from the sentence imposed by Justice John L. Getliffe of the Ontario Court of Justice dated September 20, 2004.

E N D O R S E M E N T

[1] The appellant was charged with sexual assault, choking to facilitate the commission of sexual assault, and uttering a death threat.

[2] He pleaded guilty to assault causing bodily harm, and to choking to facilitate the assault causing bodily harm. The Crown accepted these pleas and withdrew the charge of uttering a death threat.

[3] The defence urged the court to impose a sentence in the range of twelve to fifteen months minus a credit of eleven months for the five and a half months the appellant spent in pre-trial custody. The Crown sought a sentence of eighteen months in addition to the pre-trial custody served.

[4] The trial judge imposed the sentence of two years less a day after taking into account the appellant’s pre-trial custody.

[5] We are prepared to infer, from the pleas entered, that counsel had engaged in discussions and had agreed on the charges to which the appellant would plead guilty. However, the record does not support an inference that counsel made any agreement that their submissions should be treated as a joint position on the range of sentence to be imposed. Certainly nothing of the sort was suggested to the sentencing judge. We are therefore not persuaded that the considerations discussed in R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (O.C.A.) apply to this case.

[6] The sentencing judge, no matter what else he may have said, made clear that he was not imposing a sentence based on the offences having a sexual component. The judge considered all the circumstances of the offence and his criminal record, which is conceded to be “very very substantial”, and imposed a sentence that was fit.

[7] Leave to appeal granted and appeal dismissed.

“S.T. Goudge J.A.”

“K.N. Feldman J.A.”

“R.G. Juriansz J.A.”