COURT OF APPEAL FOR ONTARIO
DATE: 20060223
DOCKET: C44280
RE: HER MAJESTY THE QUEEN (Applicant (Appellant)) – and – LUIS CARLOS REBELO (Respondent)
BEFORE: ROSENBERG, SIMMONS and LAFORME JJ.A.
COUNSEL: Eliott Behar for the appellant R. Darrah for the respondent
HEARD: February 23, 2006
On appeal from sentence imposed by Justice Faye E. McWatt of the Superior Court of Justice dated July 6, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] In our view, a conditional sentence was manifestly unfit. This was a grave offence with serious consequences. It was not as the trial judge seemed to think, the result of only one blow. Rather, after striking the victim with the beer bottle, the respondent used the bottle to slash the victim’s throat. This was an offence where denunciation and deterrence were the paramount objectives and where a custodial sentence was required despite the respondent’s lack of criminal record and sympathetic personal circumstances.
[2] In view of the five months that the respondent has spent on house arrest, leave to appeal is granted, the appeal is allowed and the sentence varied to ten months imprisonment to commence upon the respondent’s surrender into custody. The three year term of probation will stand with the statutory conditions and with the following optional conditions:
Report to a probation officer within two working days of being released and thereafter as required.
Abstain from owning, possessing or carrying any weapon as defined by the Criminal Code.
Not to associate or contact directly or indirectly victim Carlos Penacho.
Not to possess any knives outside place of residence.
Sign any releases to be monitored for assessment re: anger management, alcohol abuse.
Reside at an address approved by your probation officer and advise the probation officer of any change of residence.
[3] The free-standing restitution order and the weapons prohibition will remain.