DATE: 20060406 DOCKET: C44662

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM MCPHEE (Appellant)

BEFORE:

FELDMAN, JURIANSZ and MACFARLAND JJ.A.

COUNSEL:

Brian Snell

Duty Counsel

Howard Leibovich

for the respondent

HEARD & ENDORSED:

March 20, 2006

APPEAL BOOK ENDORSEMENT

[1] The appellant pled guilty to four offences including breaking and entering and theft plus one mischief count. The transcript shows that the police had no evidence on the July 8 break-in other than the appellant’s equivocal statement. In court he said he could not remember the event and the trial judge referred to his statement as a partial admission. He characterized the appellant’s position as not being able to deny his involvement.

[2] We agree with duty counsel that on the record further inquires into the basis for the plea ought to have been made. Although other charges were withdrawn as part of the global disposition, they appear to be duplicative in nature. In our view, the conviction on the July 8 charge must be vacated.

[3] The appellant also appeals sentence. The sentence will be reduced by six months to reflect the vacating of the July 8 conviction. In our view, the sentence is otherwise proper. Although it represents a jump, the appellant has a very lengthy unenviable record. The lenient sentence he has received in the past could properly be viewed by the trial judge as ineffective for specific deterrence in this case.

[4] The appeal is allowed in part, the conviction on the July 8 count is vacated and the sentence accordingly reduced by six months. The appeal is otherwise dismissed.

[5] Correction from three months to six months made March 27, 2006 in accordance with letter from counsel.