Court of Appeal for Ontario

CITATION: R v. Desjardins, 2007 ONCA 345

DATE: 20070507

DOCKET: C45837

MACPHERSON, BLAIR and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ROBERT DESJARDINS

Appellant

Counsel:

James Carlisle for the appellant

Elliot Behar for the respondent

Heard: April 27, 2007

On appeal from the sentence imposed on January 4, 2006 by Justice J. Elliott Allen of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The appellant has a long record, including six previous convictions for break and enter. The sentencing judge gave him credit for fifteen months pre‑trial custody. He then said: “But even with the record, given that it is not a residential Break and Enter, and given the pre‑trial custody, he might well be looking at a little more time on top of that.”

[2] The sentencing judge then discussed a second aggravating factor ― the appellant’s recruitment of his fourteen year old daughter and her boyfriend to the offence ― and imposed a sentence of four years.

[3] In our view, although this second factor is a serious aggravating factor, to count it for almost a three year increase in the sentence he was considering is too harsh. The extensive case law covered in the appellant’s chart in his factum does not show any case with a four year sentence for this type of offence in these circumstances.

[4] Accordingly, we would allow the appeal and impose a sentence of three years total (i.e. fifteen months credit for pre‑trial custody and twenty‑one months custody).