Court File and Parties

CITATION: R. v. Yeck, 2011 ONCA 768

DATE: 20111206

DOCKET: C53539

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Alexander Yeck

Applicant/Appellant

Counsel: Robert C. Sheppard, for the applicant/appellant Nadia Thomas, for the respondent

Heard and released orally: November 24, 2011

On appeal from the sentence imposed by Justice W. Rabley of the Ontario Court of Justice on January 18, 2011.

ENDORSEMENT

[1] The appellant appeals his sentence of 30 months imposed after being convicted of assault.

[2] The trial judge commenced his reasons for sentence by identifying the particular challenges involved in this sentencing decision. We quote from page 18 of the transcript:

It was a tough situation for a judge to be sending a 23 year old young man to the penitentiary. I have no choice but to do that given the circumstances. I say that because the circumstances of this offence are probably the most egregious that I have ever heard throughout my legal career for common assault.

[3] As noted by the trial judge, there were serious aggravating factors. The assault was horrendous. It involved pushing the victim (a much smaller man), choking him to the point that he lost consciousness and throwing him around the room like a rag doll. The appellant left his victim unconscious and foaming at the mouth. Furthermore, the appellant has a record of 33 previous convictions, many of which are for the crimes involving assault.

[4] Counsel for the appellant submits that the trial judge erred in principle in two ways.

[5] First, he submits that the trial judge failed appropriately to factor the jump principle into his analysis of a fit sentence.

[6] We disagree. While the sentence is more severe than sentences previously imposed upon the appellant, the trial judge quite properly did not allow it to diminish the seriousness of the offence or the concern for the protection of the public.

[7] With respect to rehabilitation, the trial judge did not, as we see it, write off the appellant as a candidate for rehabilitation. Several times in his reasons he recognized the appellant’s youth and in his concluding remarks, specifically encouraged him to address his difficulties.

[8] Finally, with respect to the issue of rehabilitation raised by the appellant, we note that he has numerous convictions for previous breaches of probation. Therefore the submission that a shorter sentence be imposed with a significant probationary period must be rejected.

[9] In conclusion, this court must yield to the trial judge’s determination as to the appropriate sentence absent an error in principle or a manifestly unreasonable decision. We see neither.

[10] The appeal is therefore dismissed.

“K. Feldman J.A.”

“Robert Sharpe J.A.”

“G.J. Epstein J.A.”