CITATION: R. v. Hebert, 2007 ONCA 580

DATE: 20070827

DOCKET: C45377

COURT OF APPEAL FOR ONTARIO

SIMMONS AND BLAIR JJ.A. and MCKINNON J. (AD HOC)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

WILLIAM HEBERT

Appellant

James Zegers for the appellant

Megan Ward for the respondent

Heard: August 23, 2007

On appeal from the conviction entered by Justice Deborah K. Livingstone of the Ontario Court of Justice dated April 13, 2006 and on appeal from the sentence imposed by Justice Livingstone dated April 13, 2006.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of robbery with a knife following a guilty plea. He was sentenced to 4 years imprisonment in addition to 12 months credit for pre-sentence custody on a two for one basis. He seeks leave to appeal sentence. He claims that the sentence imposed was so excessive as to be unfit, that the trial judge overemphasized the frailties of the victim and failed to give sufficient weight to psychiatric evidence relating to the appellant.

[2] We do not accept the appellant's submissions. The appellant approached a 70-year-old man from behind, held a 10-12 inch knife to his throat, demanded the victim’s money and credit cards, and then walked the victim to an underground parking lot. The victim yelled to a passing motorist and the appellant fled. The appellant has a lengthy record dating back to 1984, including one prior conviction for robbery, two prior convictions for assault, and one penitentiary sentence. Given these circumstances, in our view, there is no basis for holding the sentence imposed is outside the range.

[3] While the trial judge's reasons were brief, she turned her mind to the appellant's issues as outlined in the psychiatric and pre-sentence reports. Even if the trial judge may have engaged in speculation in saying that the shock and trauma of this incident might well have killed the victim, having regard to the serious nature of the offence and the appellant's record, in our view, the sentence was entirely fit and we would not interfere.

[4] Leave to appeal is granted but the appeal is dismissed.