DATE: 2006-09-26

DOCKET: C45122

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – SHELDON CROSS (Respondent)

BEFORE:

MOLDAVER, GOUDGE and SHARPE JJ.A.

COUNSEL:

Deborah Krick

for the appellant

Chris Ezrin

for the respondent

HEARD & ENDORSED:

September 25, 2006

On appeal from sentence imposed by Justice Faye McWatt of the Superior Court of Justice dated February 27, 2006.

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

[1] It is conceded that the conditional sentence of twelve months for the offence of possession of a restricted weapon that was fully loaded (a .45 calibre handgun) was an illegal sentence. Under s. 95(2) of the Criminal Code, that offence is punishable by a minimum sentence of imprisonment for one year when the Crown proceeds by way of indictment, as was the case here. We note that in addition to pleading guilty to the s. 95(1) offence (possession of a restricted weapon with readily accessible ammunition), the respondent also pleaded guilty to possession of a firearm knowing that the serial number had been removed and also, the offence of carrying a concealed weapon.

[2] The respondent was 19 years old at the time of the offence. He had a prior youth record for assault causing bodily harm for which he had been sentenced to probation for two years. The offences for which he pleaded guilty occurred in the early morning hours on a public street. When the police apprehended the respondent, he fled and a brief struggle ensued before the police were able to contain him. In the course of the arrest, the police found the .45 calibre handgun concealed in the waistband of the respondent’s pants. Fortunately, for all concerned, the arrest did not result in serious, if not fatal consequences.

[3] In the circumstances, we are of the view that a sentence of two years less one day, which Crown counsel at trial was seeking, would have been appropriate. In so concluding, we have considered the youth of the respondent, his potential for rehabilitation and the strong family support that is available to him.

[4] The question, at this point, is what sentence should now be imposed. In particular, should we accede to the Crown’s request that the respondent be incarcerated for a period of five months less one day.

[5] In our view, having regard to all of the circumstances, we are not persuaded that the interests of justice warrant re-incarceration. The respondent had served six months in pre-trial custody, for which it is agreed he should be credited on a 2 for 1 basis. He has successfully completed seven months of his conditional sentence and while on bail pending trial, he complied fully with the terms of a restrictive bail order for a period of ten months. Taking those factors into account, we are satisfied that the respondent has effectively served a sentence of two years less a day. Accordingly, we would grant leave to appeal sentence and at this point, substitute a sentence of time served to be followed by two years probation on the terms and conditions imposed by the trial judge. The weapons prohibition under s. 109 of the Code and the s. 491 forfeiture order shall remain in place.