Court of Appeal for Ontario

Date: 2006-04-21

Docket: C44763

Re: Her Majesty the Queen (Respondent) – and – Roderick McNeil (Appellant)

Before: Simmons, Cronk and Lang JJ.A.

Counsel: Alex Burns for the appellant Elise Nakelsky for the respondent

Heard & Released Orally: April 12, 2006

On appeal from the sentence imposed by Justice Peter Mitchell of the Ontario Court of Justice on January 18, 2006.

Endorsement

[1] In our view, this sentence appeal cannot succeed.

[2] Although the trial judge rejected the joint submission of counsel concerning sentence, he was not obliged to accept the submission if acceptance of it would be contrary to the public interest and bring the administration of justice into disrepute. The trial judge addressed his mind to this test and concluded that it was met in this case.

[3] This conclusion is entitled to considerable deference from this court. It was clearly open to the trial judge to reach this conclusion on the evidence before him. In particular, the appellant had a lengthy and serious criminal record that included 30 prior convictions (encompassing several similar convictions for robbery and multiple failures to abide by court orders). The robbery in issue here involved a serious offence and the threat of physical harm. As well, to the knowledge of the victim, the appellant was armed with a potentially lethal weapon. The appellant’s record also revealed virtually no rehabilitative efforts by him. To the contrary, as noted by the trial judge, it demonstrated a pattern of recidivism by the appellant shortly after his release from custody on prior offences.

[4] The trial judge’s sentencing decision was based upon a thorough review of the joint submission of counsel, the Crown’s acknowledgement of problems of proof in its case, the balance of information before the trial judge, (including the evidence of the appellant’s extensive criminal record and a highly negative presentence report), and the controlling principles regarding sentencing.

[5] We also note that, at the time of the joint submission, neither the defence nor Crown counsel at trial were aware of the full extent of the appellant’s criminal record or of the gravity of his most recent convictions and custodial sentences. These facts only became available when the presentence report was obtained.

[6] In all these circumstances, the trial judge did not err in principle in rejecting the joint submission on sentence. Nor is the sentence imposed demonstrably unfit.

[7] Accordingly, leave to appeal sentence is granted and the sentence appeal is dismissed.

“J.M. Simmons J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”