Court of Appeal for Ontario

Citation: R. v. Richards, 2010 ONCA 728

Date: 2010-11-01

Docket: C51629

Between:

Her Majesty the Queen (Respondent)

and

Jason Richards (Appellant)

Before: Sharpe, MacFarland and Rouleau JJ.A.

Counsel:

Lorne Sabsay, for the appellant

Karen Papadopoulos, for the respondent

Heard: October 28, 2010

On appeal from the sentence imposed by Justice Thomas P. Cleary of the Ontario Court of Justice dated February 9, 2009.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to a series of related offences that occurred over a period of a week after the complainant informed him that she wished to end their relationship. The offences included a sexual assault, two assaults, an assault with a weapon (a shoe), forcible confinement and two counts of failure to comply with a recognizance.

[2] The Crown asked the judge to impose a global sentence of 6 years in addition to pre-sentence custody. The trial judge refused 2 for 1 credit for pre-sentence custody, gave credit on a 1.4 to 1 basis and imposed a series of consecutive sentences resulting in a global sentence of 7 ½ years and, after giving credit of pre-sentence custody, a net sentence of 6 years and eight months.

[3] The sentencing judge did not explain why he was exceeding the Crown submission. He mentioned the totality principle but did not explain its application to these offences and this offender.

[4] Section 718.2 of the Criminal Code provides that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. In our view, the global sentence imposed manifestly failed to respect the totality principle. While these were serious offences warranting a penitentiary term, the circumstances of the offences and the record of the offender do not take them to the level of a 7 ½ year sentence.

[5] Leave to appeal sentence granted and appeal allowed in accordance with these reasons.

[6] In our view, taking into account all the relevant factors, the fit sentence is:

a) to maintain the 4 years before credit for pre-sentence custody for the July 7, 2008 sexual assault;

b) to a substitute a sentence of 12 months consecutive for the unlawful confinement on July 14, 2008;

c) to maintain the other sentences as imposed before credit for pre-sentence custody but to make them all concurrent.

This yields a global sentence of 5 years, to be reduced by 10 months credit for pre-trial custody, yielding a net sentence of 4 years 2 months.

[7] Leave to appeal sentence granted and appeal allowed in accordance with these reasons.