Court of Appeal for Ontario

CITATION: R. v. Botelho, 2010 ONCA 497

DATE: 20100709

DOCKET: C50531

Moldaver, Simmons and Juriansz JJ.A.

BETWEEN:

Her Majesty The Queen

Applicant/Appellant

And

Jose Maria Botelho

Respondent

Counsel:

Elise Nakelsky, for the appellant

Erin Dann, for the respondent

Heard and endorsed: July 8, 2010

On appeal from sentence imposed by Justice Arthur Gans of the Superior Court of Justice dated May 1, 2009.

APPEAL BOOK ENDORSEMENT

[1] In our view, it was open to the trial judge to find that the respondent acted on the sudden and in using the term “provocation”, he meant nothing more than that.

[2] We are, however, of the view that the global sentence of seven years which he imposed for the offences of attempted murder, threatening death and breach of probation was manifestly unfit in the circumstances.

[3] In this regard, we note that the respondent had engaged in a history of violence towards the complainant and that he had two prior convictions for domestic assault – the last one, which involved the same complainant, having occurred five months earlier. The respondent was on probation at the time of the instant offences and he breached the condition which required him not to be in the complainant’s presence within 24 hours of having consumed alcohol. No doubt, his breach of that condition precipitated the horrendous attack that he carried on the complainant. That attack was vicious, and resulted in the complainant being stabbed numerous times. But for prompt medical intervention, the complainant would have died from her injuries. To this date, the respondent does not accept responsibility for his conduct and continues to maintain that the injuries to the complainant were caused by accident. His inability or unwillingness to accept the gravity and seriousness of his conduct renders him a continuing danger to society.

[4] In these circumstances, a sentence of eight and a half years for the offence of attempted murder is the lowest sentence that in our view, could be considered fit. The breach of probation charge, for which the respondent received a six month concurrent sentence, was in our view, a separate and distinct crime that called for a consecutive sentence.

[5] In the result, we would grant leave to appeal, allow the appeal and increase the sentence on the charge of attempted murder to eight and a half years, less the time that the trial judge gave (just under four years) for time served in pre-trial custody. The sentence on the charge of threatening death shall remain at one year concurrent. The sentence of six months for breach of probation is made consecutive to the other sentences. For clarity, the global sentence has been increased from 3 years to 5 years in addition to time served. In all other respect, the sentence imposed by the trial judge should remain the same.