DATE: 20060406

DOCKET: C44181

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – LJUBOMIR VELJKOVIC (Respondent)

BEFORE:

SIMMONS, MACFARLAND AND ROULEAU, JJ.A.

COUNSEL:

Hugh O’Connell

for the appellant

Dragi Zekavica

for the respondent

HEARD & ENDORSED:

March 31, 2006

On appeal from the sentence imposed by Justice Ramez Khawly of the Ontario Court of Justice on August 12, 2005.

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

[1] The respondent pleaded guilty to possession of 89.3 grams of cocaine for the purpose of trafficking. The sentencing judge rejected a joint submission for a conditional sentence of 2 years less a day imprisonment and instead imposed a $5000 fine.

[2] We agree that having regard to the nature of the offence, even taking account of the respondent’s personal circumstances and his efforts at rehabilitation, the sentence imposed was so manifestly unfit as to require the intervention of this court.

[3] Further, in assessing the terms of a conditional sentence that in our view was structured in accordance with the principles set out in R. v. Proulx and tailored to the circumstances of the respondent, the sentencing judge said “You know what, I am not going to deal with this the way it’s being proposed because, in my view, that’s not house arrest. It’s a joke”. In reaching this conclusion, the trial judge clearly misunderstood Proulx and thereby erred in principle.

[4] In addition, in his reasons, the sentencing judge failed to advert to the principles for departing from a joint submission and failed to provide reasons that would justify departing from the particular joint submission proposed.

[5] For all of the foregoing reasons, we conclude the appeal must be allowed. Accordingly leave to appeal sentence is granted, and the appeal is allowed. As the fine imposed has been paid, the sentence below is varied to add a term of imprisonment of 18 months to be served conditionally in the community, and to include the statutory terms and a provision that the respondent remain in his house subject only to exemptions for: lawful employment, education, medical appointments and treatments, attendance at a religious institution, and a period on Saturday of each week from noon until 4:00 p.m. to permit the respondent to attend to personal matters.

[6] All other terms of the original sentence imposed to remain the same.