Court File and Parties

Citation: R. v. McNelis, 2007 ONCA 777 Date: 2007-11-14 Docket: C46937 Court of Appeal for Ontario Cronk, Gillese and Armstrong JJ.A.

Between:

Her Majesty the Queen Respondent

and

Peter McNelis (D.O.B. October 30, 1968) Appellant

Counsel: Larissa Fedak, for the appellant Peter Scrutton, for the respondent

Heard and released orally: November 7, 2007

On appeal from the sentence imposed by Justice R. Jennis of the Ontario Court of Justice dated March 19, 2007.

Endorsement

[1] The appellant was convicted of the theft of tools and the attempted break and enter of commercial premises. He was sentenced to nine months incarceration for the attempted break and enter and five months consecutive on the theft under, followed by eighteen months probation. He received credit on a two for one basis on the theft under charge in respect of sixteen days of pre-sentence custody. He appeals his sentence, arguing that the trial judge erred: first, by imposing consecutive, rather than concurrent, sentences; second, by failing to impose a conditional sentence; and third, by failing to credit the appellant for pre-trial bail on strict conditions. We reject these grounds of appeal.

[2] In our view, the trial judge did not err by exercising his discretion to impose consecutive rather than concurrent sentences. The offences in this case, although committed on the same day and within approximately one hour of each other, constitute different offences against different complainants at different times. The sentencing judge’s discretionary decision to impose consecutive sentences in these circumstances attracts deference from this court. In our opinion, the global sentence imposed, fourteen months, was fit and does not offend the totality principle. Accordingly, we see no basis for appellate interference on this ground.

[3] The sentencing judge’s reasons indicate that he properly considered and rejected the appropriateness of a conditional sentence. Although he did not expressly mention the appellant’s conduct on pre-trial bail when considering this issue, he concluded that the appellant’s lengthy and varied criminal record, which included several related offences, indicated that the appellant posed a substantial risk of reoffending. This finding was amply supported by the evidential record. The appellant’s criminal antecedents include convictions for break and enter and robbery, several convictions for failure to comply offences, and convictions for aggravated assault, sexual assault, possession of a weapon and possession for the purposes of trafficking. Importantly, some of these offences were committed while the appellant was on parole or shortly after his release from jail after serving sentences on other offences. In addition, the appellant’s pre-sentence report, to which the sentencing judge made extensive reference, stresses the appellant’s anti-social traits and a developed pattern of non-compliance. Nothing in that report suggested that the appellant was amenable to community supervision with or without strict conditions.

[4] In these circumstances, in our view, the sentencing judge did not err by concluding that the imposition of a conditional sentence would endanger the safety of the community. This conclusion foreclosed the possibility of a conditional sentence.

[5] Finally, we reject the appellant’s contention that the sentencing judge erred by failing to credit the appellant for pre-trial bail conditions amounting to house arrest. At the sentencing hearing, neither counsel directly addressed the issue whether the appellant should receive credit for the conditions of his pre-trial bail. Nonetheless, the sentencing judge expressly considered this issue in accordance with R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.). Having considered the matter, he concluded that the record before him was insufficient to permit credit to be given for pre-trial release. Apart from the evidence of the terms of the bail order, there was no evidence before the sentencing judge about the impact of the appellant’s bail terms. By failing to provide the sentencing judge with sufficient information to properly assess the impact of his pre-trial bail, the appellant failed to meet his onus under Downes. This ground of appeal, therefore, also fails.

[6] For the reasons given, leave to appeal sentence is granted and the sentence appeal is dismissed.

"E.A. Cronk J.A." "E.E. Gillese J.A." "Robert P. Armstrong J.A."