DATE: 20060421

DOCKET: C43981

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GORDON THOMAS (Applicant/Appellant)

BEFORE:

SIMMONS, CRONK AND LANG JJ.A.

COUNSEL:

Russell Silverstein

for the appellant

Tracy Stapleton

for the respondent

HEARD & ENDORSED:

April 13, 2006

On appeal from the sentence imposed by Justice John Poupore of the Superior Court of Justice on July 13, 2005.

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

[1] Of the grounds of appeal raised by the appellant, it is necessary for the disposition of this sentence appeal to deal only with his argument that the trial judge erred in principle in his consideration of the totality principle. Although the trial judge stated that he had considered the totality principle, when the 3-year sentence imposed is viewed in combination with the appellant’s existing nine-year sentence for the other sexual offences on which he was previously convicted that involved the same time frame, the totality principle is infringed. The nature of the offences before the sentencing judge, although serious, simply did not warrant the imposition of an additional three-year sentence in the overall context of this case.

[2] In our view, a just and appropriate sentence is an additional period of one year imprisonment.

[3] Accordingly leave to appeal sentence is granted, the sentence imposed is set aside and the following sentence is substituted: count 6, 1 year imprisonment; count 7, 1 year imprisonment to be served concurrently, to the sentence on count 6; counts 1-5, and counts 8 and 9, 4 months imprisonment on each count to be served concurrently to the sentences on all other counts; and the total sentence of 1 year imprisonment to be served consecutively to the ­­ sentence the appellant is already serving.