Court File and Parties

CITATION: R. v. Byer, 2007 ONCA 694

DATE: 20071017

DOCKET: C43578

COURT OF APPEAL FOR ONTARIO

SIMMONS, ARMSTRONG AND LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

GARRY BYER

Appellant

Apple Newton-Smith for the appellant

Christopher Webb for the respondent

Heard and released orally: September 13, 2007

On appeal from the sentence imposed by Justice John F. Hamilton of the Superior Court of Justice dated October 26, 2004.

ENDORSEMENT

[1] The appellant was convicted of four counts of sexual assault and four counts of administering a stupefying substance to commit an indictable offence. He received a global sentence of six years imprisonment in addition to credit for pre-sentence custody of 40 months, rounded up to four years imprisonment. He seeks leave to appeal sentence.

[2] The appellant submits that the trial judge erred in principle in holding that one of the aggravating features of these offences was that the appellant committed a breach of trust. The appellant submits that he did not stand in a position of trust in relation to the victims. In addition the appellant contends that the total sentence of 10 years imprisonment was outside the range for these offences.

[3] In our view, it is unnecessary that we determine whether the appellant occupied a position of trust in relation to the victims of these offences or whether the trial judge erred in relying on a breach of trust as an aggravating factor. Even if the trial judge erred in this respect, in our opinion, the sentence imposed was entirely fit. There were significant aggravating features involved in these offences. They included: (1) the offences spanned approximately 15 years and involved four victims; (2) the appellant administered stupefying substances to the victims without knowing their medical or drug history; (3) the victims were assaulted while unconscious or semi-conscious; (4) the significant health risks posed to the victims from unprotected non-consensual sex; and (5) the significant planning and pre-meditation involved in these offences. Having regard to these aggravating factors, in our view the global sentence imposed was entirely appropriate.

[4] Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.

“J. Simmons J.A.”

“Robert P. Armstrong J.A.”

“Susan E. Lang J.A.”