CITATION: R. v. Johnson, 2007 ONCA 116

DATE: 20070222

DOCKET: C45820

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – BRANDON MICHAEL JOHNSON (Appellant)

BEFORE: FELDMAN, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Delmar Doucette for the appellant

Michelle Campbell for the respondent

HEARD & RELEASED ORALLY: February 13, 2007

On appeal from the sentence imposed by Justice W. Festeryga of the Superior Court of Justice dated July 14, 2006.

E N D O R S E M E N T

[1] The appellant pleaded guilty to breach of probation, theft over and possession over of a truck. He received a sentence of time served, i.e. one year and one month for which he received an effective sentence of two years and two months after the two for one credit.

[2] On the same day, he pleaded guilty to two unrelated offences: breach of probation and robbery. The robbery involved a cowardly and violent attack on a disabled victim. He received a global sentence of three years on those two offences.

[3] The total effective sentence on all charges is five years and two months. The appellant appeals his sentence on the latter two charges – breach of probation and robbery and submits that the appropriate sentence was two years instead of three years.

[4] The appellant raises four grounds of appeal. In our view, the trial judge committed an error in failing to consider the totality principle.

[5] We would reduce his sentence in these circumstances which include the fact that he is an aboriginal and this factor was not considered by the sentencing judge. We also take into account that the appellant was 25 years old at the time of sentencing and that the robbery charge is his first conviction involving violence.

[6] In the result, we grant leave to appeal, allow the appeal as to sentence and reduce the sentence on the breach of probation and robbery charges from three years to two years.

[7] In view of the decision we have reached, it is not necessary to consider the other three grounds of appeal.

"K. Feldman J.A."

"E.E. Gillese J.A."

"Robert P. Armstrong J.A."