R. v. McBean, 2007 ONCA 275

CITATION: R. v. McBean, 2007 ONCA 275

DATE: 20070416

DOCKET: C46136

COURT OF APPEAL FOR ONTARIO

MacPHERSON, CRONK and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

(Applicant/Appellant)

and

DAMIAN BARRINGTON McBEAN

(Respondent)

Charmaine M. Wong, for the applicant/appellant

Mark Halfyard, for the respondent

Heard: April 13, 2007

On appeal from the sentence imposed by Justice D. McCombs of the Superior Court of Justice dated September 27, 2006.

APPEAL BOOK ENDORSEMENT

[1] The sentencing judge held that an appropriate sentence in this case was 36 months incarceration. He credited the appellant with 26 months for pretrial custody of 13 months, and imposed a 10-month conditional sentence, to be followed by 3 years probation.

[2] However, the parties are agreed that the sentencing judge erred, because a conditional sentence is not available where, as here, a sentence of imprisonment of two years or more has been imposed or where a minimum sentence applies. See s. 742.1 of the Criminal Code and R. v. Fice (2005), 2005 SCC 32, 196 C.C.C. (3d) 97 (S.C.C.). The issue, therefore, is the determination of a fit sentence in the circumstances of this case.

[3] On the 36-month total sentence imposed by the sentencing judge, three and one-half months of additional custody would now be required. The appellant has honoured the terms of his conditional sentence for the last six and one-half months, without incident. The record further indicates that he has made significant efforts to achieve rehabilitation, to continue his education, to work, and to further his relationships with his family.

[4] In all these circumstances, reincarceration of the appellant at this time, in our opinion, is not in the interests of the appellant’s rehabilitation or the public interest.

[5] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is varied to one of 36 months incarceration, but the remaining period of three and one-half months incarceration is stayed. All other terms of the sentence remain in effect.