DATE: 20060405

DOCKET: C44442

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DONAKIN DOWNEY (Appellant)

BEFORE:

SIMMONS, MACFARLAND AND ROULEAU JJ.A.

COUNSEL:

Elizabeth A. Moore

for the appellant

Leslie Paine

for the Crown respondent

HEARD & RELEASED ORALLY:

March 29, 2006

On appeal from the sentence imposed by Justice Frederic M. Campling of the Ontario Court of Justice on September 2, 2005.

E N D O R S E M E N T

[1] The appellant pleaded guilty to breaking and entering a dwelling house with intent to commit an indictable offence. As the result of pre-trial negotiations, trial counsel jointly requested a sentence of 10 months imprisonment in addition to two months credit for time served, plus 12 months probation. Campling J. sentenced the appellant to 21 months imprisonment in addition to three months credit for time served. The main issue on appeal is whether the sentencing judge provided adequate reasons for rejecting the joint submission.

[2] In his reasons the sentencing judge did not identify specifically the threshold for rejecting a joint submission. However, during submissions he did ask counsel to address why, in light of the appellant’s record and a previous two-year sentence for breaking and entering, the joint submission was not contrary to the public interest. Further, in his reasons, the sentencing judge expressed the view that, taking account of the following factors, the minimum sentence that was appropriate was two years imprisonment:

▪ the appellant was, at the time, 37 years old, he had 37 prior convictions (14 for breaking and entering), and he had been on probation five times in the past. In these circumstances, the sentencing judge could see no useful purpose in ordering probation;

▪ breaking and entering a dwelling house is a serious offence that carries a maximum sentence of life imprisonment;

▪ the appellant had previously been sentenced to longer terms of imprisonment for breaking and entering than the term suggested by way of joint submission; and

▪ since the appellant was apprehended inside the dwelling house, the Crown’s case was overwhelming.

[3] This court has said in the past that while a trial judge is not bound by a joint submission, he or she should not reject a joint submission unless the joint submission is contrary to the public interest and the sentence proposed will bring the administration of justice into disrepute. See R. v. Cerasuolo (2001), 2001 24172 (ON CA), 151 C.C.C. (3d) 445 (Ont. C.A.) at para. 8. In addition, in Cerasuolo, at para. 9, this court said that a sentencing judge is required to explain not only in what way the particular joint submission is contrary to the public interest, but also how it would bring the administration of justice into disrepute.

[4] Here, while the sentencing judge’s reasons address the public interest and, in particular, the need for protection of the public, we are not satisfied that the sentencing judge turned his mind to or addressed how the joint submission would bring the administration of justice into disrepute. By that omission, he erred in principle.

[5] On our review of the record, we agree that the proposed sentence was low. However, there were some mitigating factors present and we are not satisfied that, on a joint submission, the proposed sentence was so low that it would bring the administration of justice into disrepute.

[6] Leave to appeal sentence is therefore granted. The sentence imposed is set aside, and a sentence of 10 months imprisonment (taking account of two months time served), plus 12 months probation, together with all other terms of the joint submission, including the requirement to produce a DNA sample, is substituted. The terms of probation, in addition to the statutory terms, are as follows:

▪ the appellant shall report to a probation officer immediately following his release and thereafter as required by his probation officer;

▪ the appellant shall reside at an address approved of by his probation officer;

▪ the appellant is not to be found within 100 meters of 48 Oakwood Avenue;

▪ the appellant shall attend for treatment and counselling as directed by his probation officer, including drug, alcohol abuse, employment and life skills counselling; and

▪ the appellant shall seek and maintain employment.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Paul Rouleau J.A.”