CITATION: R. v. Bellissimo, 2009 ONCA 49

DATE: 20090119

DOCKET: C48242-C48412

COURT OF APPEAL FOR ONTARIO

Doherty, MacPherson and MacFarland JJ.A.

BETWEEN:

Her Majesty the Queen

Applicant (Appellant)

and

Salvatore Bellissimo

Respondent

John Patton, for the applicant (appellant)

Joseph Di Luca and Andrea McEwan, for the respondent

Heard: January 16, 2009

On appeal from the acquittals entered by Justice Rivard of the Superior Court of Justice dated December 20, 2007 and the sentence imposed on January 28, 2008.

APPEAL BOOK ENDORSEMENT

[1] The Crown’s appeal from the attempt murder acquittal does not demonstrate an error in law. The trial judge was not satisfied that the evidence proved the required mens rea beyond a reasonable doubt.

[2] We are satisfied that there was a misdirection as to the intent on the endangering counts. However, Mr. Di Luca has convinced us that this error in law would result in a new trial on those counts and that we cannot substitute convictions on this record given the unresolved factual issues. The Crown seeks convictions on these counts and disavows any request for a new trial on these counts. Therefore, the appeal on these counts is dismissed.

The Crown Sentence Appeal

[3] The Crown argues that the totality of the sentences imposed is manifestly inadequate. The trial judge imposed sentences totalling five years. He also gave the appellant credit for 3 ½ years based on his pre-sentence incarceration. The effective sentence was 8 ½ years. We agree that the range of sentence for these kinds of serious gun related offences is between seven and eleven years.

[4] We see virtually no mitigating factors. The seriousness of these crimes is hard to overstate. The respondent fired several shots in the restaurant. One significantly injured a victim, another caused a minor injury to a victim and a third narrowly missed killing a third victim.

[5] General deterrence and denunciation must be given a paramount weight in sentencing for these kind of dangerous gun related charges. We think the sentence fails to give adequate weight to these factors. We think a proper sentence is ten years. To achieve an effective sentence of ten years, we will vary the sentence imposed on count 12 (possession weapon dangerous) from eighteen months consecutive to three years consecutive resulting in a sentence of 6 ½ years.

[6] The appeal is allowed and the sentence is varied accordingly.