DATE: 20061006

DOCKET: C45528

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – GRIGORI GOMZIAKOV (Applicant/Appellant)

BEFORE: CRONK, LANG and MacFARLAND JJ.A.

COUNSEL: Phil Downes for the appellant Tracy Stapleton for the respondent

HEARD & RELEASED ORALLY: October 3, 2006

On appeal from the sentence imposed by Justice J. W. Quinn of the Superior Court of Justice dated May 29, 2006.

E N D O R S E M E N T

[1] The Crown concedes in this case that the sentencing judge erred by treating the appellant’s personal immigration status as an aggravating factor to be taken into account on sentencing. We agree. It was an error in principle to consider the manner in which the appellant became a Canadian citizen, the place of his birth or his immigration status as an aggravating sentencing factor.

[2] Accordingly, in the light of this admitted error, this court is required to fashion an appropriate sentence for the appellant.

[3] The Crown argues that notwithstanding the error described above, the sentence imposed was nonetheless fit. We disagree.

[4] There was no evidence in this case linking the appellant to any type of immigration crime, scheme or improper practice of the kind outlined by the Crown’s witness at the sentencing hearing, nor was the appellant charged with such crimes. While we agree with the Crown that it was not improper for the sentencing judge to take into account the potential consequences of the illicit use of materials such as those found in the appellant’s possession, it was also necessary that the sentence imposed on the appellant be proportionate to the gravity of the actual offences charged and the degree of the appellant’s responsibility.

[5] On this evidentiary record, we conclude that the sentence imposed here – four years’ imprisonment for simple possession by a first offender – was excessive and disproportionate to the crimes proven. In our view, in all the circumstances, a fit sentence for these offences and this offender is two years imprisonment: see R. v. Mankoo, [2000] O.J. No. 1869 (C.A.). Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed and the appellant’s sentence is reduced from four to two years’ imprisonment.

“E.A. Cronk J.A.”

“S.E. Lang J.A.”

“J. MacFarland J.A.”