Court File and Parties

CITATION: R. v. Levere, 2011 ONCA 576

DATE: 20110907

DOCKET: C53105

COURT OF APPEAL FOR ONTARIO

Gillese, Armstrong and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Garry Levere

Respondent

Counsel:

Holly Loubert, for the appellant

Brennagh Smith, for the respondent

Heard and released orally: August 25, 2011

On appeal from the sentence imposed by Justice Renaud of the Ontario Court of Justice, on November 22, 2010.

ENDORSEMENT

[1] Mr. Levere pleaded guilty to one charge of arson in respect of his own property. He was given a 12 month conditional sentence, with strict conditions, followed by 24 months of probation.

[2] The Crown appeals the sentence on two grounds. First, it contends that the sentencing judge erred in failing to designate the offence as a “serious personal injury offence” (SPIO) pursuant to ss. 742.1 and 752 of the Criminal Code. Once it is so designated, the conditional sentence is illegal. Second, and in any event, the Crown argues that the sentence is demonstrably unfit because it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. The Crown asks that a period of actual imprisonment be imposed for the time remaining to be served on the sentence (88 days).

The SPIO

[3] The Crown did not advance the argument below that the offence amounted to a circumstantial SPIO and, therefore, that a conditional sentence was not available. We decline to entertain this argument for the first time on appeal.

[4] The determination of whether an offence is a circumstantial SPIO is one for the trial judge to make, with the benefit of the relevant evidence and legal submissions. It would be unfair and prejudicial to permit the Crown to raise it at this stage of the proceedings.

Fitness of sentence

[5] As for the fitness of sentence, we see no basis on which to interfere with the sentence that has been imposed. The sentencing judge considered the appropriate sentencing principles and satisfied himself that the sentence struck the appropriate balance between the goals of the denunciation, deterrence and rehabilitation. He noted that the offence was out of character for the respondent, and that it was committed at a time when the appellant was suffering from mental health challenges involving depression, being suicidal and not thinking clearly. The sentencing judge also noted that the respondent was a mature first time offender (he was 49 years of age at the time of the offence), and that he had no prior record of wrong doing. In addition, the respondent had a long and good employment record. He noted as well that the fire was minor and the only damage suffered as a result of the offence was to the respondent’s own property.

[6] The sentencing judge recognized the seriousness of the offence but concluded that when the gravity of the offence was balanced against the respondent’s attenuated moral blameworthiness, a fit sentence was one of incarceration to be served within the community.

[7] The post-sentence evidence demonstrates that the respondent has used the period of the conditional sentence to put his life in order and address the personal issues that led him to commit the offence.

[8] Accordingly, while leave to appeal sentence is granted, we dismiss the appeal.

“E.E. Gillese J.A.”

“Robert P. Armstrong J.A.”

“Karakatsanis J.A.”