Court File and Parties

CITATION: R. v. Sellen, 2008 ONCA 623

DATE: 20080912

DOCKET: C44926

COURT OF APPEAL FOR ONTARIO

Rosenberg, Feldman and Juriansz JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Michael Sellen

Appellant

Counsel:

J. Hervé Sauvé, Q.C. for the appellant

Susan Ficek for the respondent

Heard and released orally: September 5, 2008

On appeal from sentence imposed by Justice Ian Gordon of the Superior Court of Justice dated September 19, 2005.

ENDORSEMENT

[1] The appellant was convicted of attempted murder, possession of a weapon for a dangerous purpose, and breach of probation. He spent 14 months in pre-trial custody. After awarding two for one credit, the trial judge imposed a sentence of a further 9 years for the attempted murder, 6 months concurrent for the weapon charge and 90 days consecutive for breach of probation. He appeals from the length of the sentence for attempted murder and also argues that the sentence for breach of probation should be concurrent.

[2] While the attempted murder required a lengthy sentence given the severity of the offence and the appellant’s record for violence, in our view, the effective sentence of over 11 years imprisonment was excessive given that the offence was not planned and deliberate but rather committed on spur of the moment. There was also evidence that the appellant had been drinking and taking drugs for many hours prior to the offence.

[3] This is also a case where the court should have had a Gladue report. The appellant has now provided us with a report from the penitentiary that contains much of the information that would be contained in a Gladue report. That report shows the serious impact on the appellant of the abuse he suffered at the hands of his father. The report also indicates that the appellant’s mother and brother were survivors of the residential school system.

[4] The appellant has received excellent assistance in the penitentiary from the Aboriginal Offender Substance Abuse Program, which is helping him come to terms with the trauma of his early upbringing and which trauma contributed to his substance abuse and resulting tendency to resort to violence.

[5] Given the substantial period of pre-trial custody and having regard to the fresh evidence, we would reduce the sentence on attempted murder from 9 years to 6 years imprisonment which represents an effective sentence of over 8 years. We would not interfere with the sentence of 90 days imprisonment consecutive for breach of probation.

Signed: “M. Rosenberg J.A.”

“K. Feldman J.A.”

“R. G. Juriansz J.A.”