Court of Appeal for Ontario

Date: 2006-10-10 Docket: C45664

Re: Her Majesty the Queen (Respondent) – and – Walter Remezoff (Appellant)

Before: Cronk, Lang and MacFarland JJ.A.

Counsel: Irwin Koziebrocki, for the appellant Andrew Cappell, for the respondent

Heard & Released Orally: October 5, 2006

On appeal from the sentence imposed by Justice P. T. Bishop of the Ontario Court of Justice, dated April 18, 2006.

Endorsement

[1] The appellant challenges the sentence imposed on the basis that no credit was given by the sentencing judge for the 60 days pre-sentence custody served by the appellant, the sentence of 15 months incarceration is outside the range of acceptable sentences for like offences and offenders, and the sentencing judge failed to consider mitigating factors that should have operated to the benefit of the appellant on sentencing.

[2] We would reject the first two grounds of appeal. We are not persuaded on this record that the sentencing judge failed to credit the appellant for time spent in custody pre-sentence. The record suggests that the sentencing judge took this into account in sentencing the appellant on the breach of recognizance charges. Nor do we accept that a sentence of 15 months incarceration is outside the range of appropriate sentences for the offences in issue.

[3] However, based on his reasons, it does not appear that the sentencing judge took into consideration the full circumstances of this offender when fashioning an appropriate sentence. In particular, in our opinion, the role of alcohol in this incident and the appellant’s substance abuse problem were mitigating factors to be taken into account. As well, the appellant expressed some remorse for his conduct and willingness to participate in counselling. The sentencing judge’s failure to take these matters into account was an error in principle.

[4] In these circumstances, we conclude that 12 months imprisonment is a fit sentence for these offences and this offender. Accordingly, leave to appeal sentence is granted, the sentence appeal is allowed and the appellant’s sentence of 15 months incarceration is reduced to 12 months incarceration. All other aspects of the sentencing judge’s disposition remain in force.

"E.A. Cronk J.A."

"S. E. Lang J.A."

"J. MacFarland J.A."