CITATION: R. v. Terstege, 2007 ONCA 420
DATE: 20070607
DOCKET: C45768
COURT OF APPEAL FOR ONTARIO
ROSENBERG, SIMMONS and ARMSTRONG JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
DIETER SIEGFRIED TERSTEGE
Applicant
Mary Jane Kingston for the applicant
Erika Chozik for the respondent
Heard and released orally: May 11, 2007
On appeal from sentence imposed by Justice J.J. Douglas of the Ontario Court of Justice dated February 28, 2007.
ENDORSEMENT
[1] The appellant committed the first offence less than two years after being released from a two-year sentence for the same offences. He committed the second offence two months later while on release from the first offence. The appellant has a horrendous record including eleven convictions for alcohol related driving offences and twelve prior convictions for driving while disqualified. He also has other convictions for crimes of dishonesty and crimes against the administration of justice dating back to 1982. In all, he has over sixty prior convictions.
[2] The trial judge explained why the joint submission was not in the public interest. In any event, it is obvious why the two years joint submission was contrary to the public interest. It would undermine confidence in the administration of justice to give the appellant the same sentence for two offences, he received only a short time before, for a single offence.
[3] While there was no drinking involved in either offence and no accident, there were sufficient aggravating features in addition to the appalling record to make the joint submission contrary to the public interest. These include the short time since the last offence; that he was released when he committed the second offence; the elements of dishonesty surrounding commission of the second offence; and that he was in breach of an undertaking not to associate with anyone with a criminal record. Accordingly, we cannot say that the decision to exceed the joint submission was unreasonable.
[4] That said, we think a sentence 2.5 times the joint submission was manifestly excessive.
[5] It is beyond the range for these offences in circumstances where there is no drinking and no accident. Further, the sentence gives no effect to the fact that since 1998 the appellant has refrained from drinking, and that because of the penitentiary term he will suffer considerable additional punishment due to loss of his licence and of his ability to care for his severely ill spouse.
[6] We think the appropriate sentence should be four years.
[7] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence for the offence of October 17, 2005 is reduced to two years imprisonment. In all other respects the appeal is dismissed.
Signed: “M. Rosenberg J.A.”
“Janet Simmons J.A.”
“Robert P. Armstrong J.A.”