Court of Appeal for Ontario

CITATION: R. v. Sanko, 2011 ONCA 804

DATE: 20111216

DOCKET: C54241

BEFORE: Feldman and Armstrong JJ.A. and Himel J. (ad hoc)

BETWEEN

Her Majesty The Queen

Respondent (Appellant)

and

Daniel Sanko

Appellant (Respondent)

COUNSEL:

Scott Latimer, for the appellant

Danielle Robitaille, duty counsel for the respondent

Daniel Sanko, in person

Heard and released orally: December 8, 2011

On appeal by the appellant from conviction and on appeal by the Crown from sentence imposed by Justice William R. Wolski of the Ontario Court of Justice, dated August 10, 2011.

ENDORSEMENT

[1] The appellant was convicted of break and enter a dwelling and possession of property obtained by crime, namely a watch. He appeals his conviction for break and enter only, and the Crown appeals the sentence of 12 months incarceration.

[2] The break-in occurred at the basement apartment of a Jesuit brother living in a Jesuit residence on Isabella Street in Toronto. The resident came home on the morning of October 4, 2010 and found two people rummaging through his dresser. They immediately left pushing past him. They took a silver watch and approximately $70. The next day, on October 5, Mr. Sanko was found nearby with a similar watch.

[3] The appellant says that the trial judge erred by relying on the doctrine of recent possession of the watch when he did not reject the evidence of the complainant regarding the description of the intruders which was arguably inconsistent in some respects with the appellant.

[4] In our view, the trial judge did not make the submitted error. The complainant’s evidence of the description of the intruders was vague. The trial judge neither accepted nor rejected it. Although he did not say so explicitly, reading the reasons as a whole, it is clear that he gave no weight to the descriptions such as they were. He was therefore entitled to rely on the doctrine of recent possession once he concluded that the watch found on the appellant was the stolen watch.

[5] We would therefore dismiss the conviction appeal.

[6] The Crown seeks leave to appeal the sentence on the basis that it was outside the range for home invasion type offences and that the trial judge failed to consider psychological harm to the victim in the circumstances.

[7] We see no error in the approach taken by the trial judge. He was fully alive to all of the circumstances of the offence and of the offender, a 38-year-old homeless man with an unfortunate record for this type of offence. No victim impact statement was filed nor did the trial Crown make any submissions regarding psychological harm.

[8] Leave to appeal sentence is granted but the appeal is dismissed.

Signed: “K. Feldman J.A.” “Robert P. Armstrong J.A.” “S. Himel J.”