Court of Appeal for Ontario

Citation: R. v. Felhazi, 2009 ONCA 854

Date: 20091202

Docket: C50808

Before: Feldman, Armstrong and Epstein JJ.A.

Between:

Her Majesty the Queen Respondent

and

John Felhazi Applicant/Appellant

Counsel: Paul J. I. Alexander, for the appellant Erin Dann, for the respondent

Heard and endorsed: November 19, 2009

On appeal from sentence imposed by Justice Culver of the Ontario Court of Justice dated June 25, 2009

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals his sentence of 24 months plus 2 years probation imposed by the sentencing judge on a guilty plea to the offence of break, enter and theft. In imposing the 24 month sentence, the sentencing judge rejected a joint submission of 9 months made by Crown and defence.

[2] In our view, the sentencing judge erred in law in rejecting the joint submission. Although he adverted to the high threshold for rejecting a joint submission and to the public interest and the repute of the administration of justice, he appeared to rely on the appellant’s record for so doing without adverting to several factors, including the Crown’s stated concerns about its ability to prove the case without the plea.

[3] Furthermore, the Crown had not proved beyond a reasonable doubt that the stolen computer containing important personal family letters from the recently deceased mother had at the time been irretrievably lost. The trial judge relied heavily on this believed fact as an aggravating factor and used it as part of the circumstances of the incident that militated in favour of rejecting the joint submission. In fact, by the time of the sentencing, the computer had been retrieved and returned to the victims with most of the data on it restored. Although it is unclear whether all the mother’s letters were recovered, it was an error to believe or act on the loss of this data as a basis to reject the joint submission.

[4] The appellant has now served 10 months plus 10 days including pre-trial custody. As we would have restored the sentence suggested by the joint submission for the reasons it was suggested by the Crown and defence at the sentencing hearing, we would allow the appeal, set aside the sentence and impose a sentence of time served. We rely in particular on this court’s recent decision in R. v. Downey, [2006] O.J. 1289.

[5] The appellant also requests a change in the conditions of probation in respect of the prohibition on consumption of drugs and alcohol. As the appellant is a recovering drug addict, this prohibition may be unrealistic. We would therefore accede to this request. The curfew condition will remain.