Court of Appeal for Ontario

CITATION: R. v. Higham, 2009 ONCA 147

DATE: 20090213

DOCKET: C48290

BEFORE: Feldman, MacPherson and Armstrong JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Douglas Higham

Appellant

COUNSEL:

Christopher Hicks, for the appellant

John Patton, for the respondent

Heard and endorsed: February 9, 2009

On appeal from sentence imposed by Justice Michael F. Brown of the Superior Court of Justice dated September 4, 2007.

APPEAL BOOK ENDORSEMENT

[1] The trial judge characterized this manslaughter conviction as close to murder. He made no error in this regard.

[2] The appellant armed himself with a handgun, travelled with the victim in his vehicle, exited the vehicle, then shot into the vehicle, hitting the victim and killing him. The jury apparently had a reasonable doubt whether the appellant intended to hit and kill the victim when he discharged the firearm into the vehicle.

[3] The appellan t says the trial judge erred in imposing a sentence that was beyond the range, and violated the parity rule as the person who hired the appellant received 14 years, while the appellant received an effective sentence of 19 years.

[4] In our view, the trial judge made no error in imposing a sentence of 10 years on top of credit of 9 years for pre trial custody. Although the sentence was at the higher end of the range, it was not outside the range for a manslaughter that was close to murder in the circumstances described. The trial judge considered the parity principle but determined that because of the role played by the appellant, a higher sentence was called for.

[5] In the circumstances, leave to appeal sentence is granted but the appeal is dismissed.