Court of Appeal for Ontario

Citation: R. v. Momprevil, 2012 ONCA 209 Date: 2012-03-28 Docket: C52917 & C52918

Before: Blair, Rouleau and Hoy JJ.A.

Between:

Her Majesty the Queen Respondent

and

Bernard Rodger Momprevil Appellant

Counsel: Anik Morrow, for the appellant Lucas Price, for the respondent

Heard: March 27, 2012

On appeal from the sentence imposed on August 6, 2008 by Justice D. Wake of the Ontario Court of Justice and of the sentence imposed on August 8, 2008 by Justice Hugh Fraser of the Ontario Court of Justice.

Appeal Book Endorsement

[1] Mr. Momprevil was convicted at two separate trials by two separate judges, but at about the same time, for (a) assault causing bodily harm and criminal harassment and (b) possession of cocaine valued at about $133,000 for purposes of trafficking, possession of marijuana for purposes of trafficking and possession of the proceeds of crime.

[2] Wake J. sentenced the appellant to 5 years imprisonment for the assault on August 6, 2008. Fraser J. sentenced him to 8 years for possession of cocaine for the purposes of trafficking on August 8, 2008. The sentences imposed by both judges for the other crimes were concurrent and for lesser periods.

[3] Taken individually, we see no error in principle in either of the sentences imposed, given the very serious nature of the crimes in question and the appellant’s criminal record. In our view, however, Fraser J. failed to consider or gave inadequate consideration to the totality principle in imposing the second sentence resulting in Mr. Momprevil receiving a global sentence of 13 years. Having regard to this consideration, we would reduce the global sentence to 10 years.

[4] Leave to appeal is granted and the appeal from the sentence imposed by Fraser J. is allowed by varying the sentence on the possession for the purposes of trafficking in cocaine conviction to one of 5 years consecutive to the sentences imposed by Wake J.