Court File and Parties

CITATION: R. v. Zlatanov, 2007 ONCA 523

DATE: 20070709

DOCKET: C45266

COURT OF APPEAL FOR ONTARIO

DOHERTY, FELDMAN and MACPHERSON JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

FILIP ZLATANOV

Appellant

Boris Bytensky and Sonya Shikhman for the appellant

Howard Leibovich for the respondent

Heard: July 6, 2007

On appeal from the sentence imposed by Justice S.E. Marin of the Ontario Court of Justice dated June 14, 2005.

APPEAL BOOK ENDORSEMENT

[1] This was a serious horrifying crime. The trial judge had a difficult sentencing problem as she recognized. The crime and the appellant’s criminal antecedent called out for a lengthy penitentiary term. However, his youth (he was 18) required that the trial judge recognize the potential for rehabilitation and to the extent she could, without diminishing the seriousness of the offence, give effect to that potential by limiting the period of imprisonment to reflect that potential.

[2] The trial judge was not referred to in this court’s decision in R. v. Borde (2003), 172 C.C.C. (3d) 225, a very similar case where the principles applicable to this kind of case were reviewed. The court imposed a sentence that was two years less than this sentence. The Criminal Code recognizes parity of sentences as a principle of sentencing, s. 718.2(e).

[3] In our view, the sentence is just outside the range that flows from the principles set out in Borde and the sentence imposed in Borde. We would reduce the sentence to six years for an effective sentence of eight having regard to the pre-trial custody.

MACPHERSON J.A. (Dissenting):

[1] I agree with my colleague: “This was a serious horrifying crime. The trial judge had a difficult sentencing problem as she recognized.”

[2] In my view, the trial judge properly considered all of the relevant sentencing principles. She did not improperly overemphasize deterrence and denunciation and she fully considered the rehabilitation prospects of the appellant.

[3] In addition, I do not think that Borde puts a cap on sentences in this type of case. The crime committed by the appellant was remarkable in its brutality, callousness and insensitivity. The victim – an elderly man working alone in the middle of the night at a store – was defenseless and very seriously injured.

[4] I cannot see any error in the nine year sentence imposed on the appellant and, therefore, would dismiss the appeal.