COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gilmore, 2012 ONCA 378

DATE: 20120605

DOCKET: C50994

Doherty, Juriansz and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Maximilian Gilmore

Appellant

Counsel: Monte MacGregor, for the appellant Peter Scrutton, for the respondent

Heard and released orally: June 4, 2012

On appeal from the sentence imposed on August 21, 2009 by Justice Garton of the Superior Court of Justice.

ENDORSEMENT

[1] The appellant was convicted on his guilty pleas of the following offences:

• attempted murder;

• aggravated assault;

• break and enter with intent to commit an indictable offence;

• wearing a disguise with intent to commit an indictable offence; and

• assault with a weapon.

[2] All of the charges arose out of the same event. The appellant broke into the home of a couple whom he had formerly lived with, and attempted to kill one of the occupants of the home. He seriously injured that person and also significantly injured the other person who lived in the residence. As he fled the residence he also assaulted a third person who had come to the assistance of the other two victims.

[3] This is a sentence appeal only. Counsel for the appellant contends that the appellant did not have adequate legal representation in the proceedings below. While the complaints concerning the representation are many, the appellant does not resile from his guilty pleas. He submits that he received inadequate representation in the sentencing proceedings.

[4] We find it unnecessary to determine the merits of any of the complaints advanced by the appellant. Assuming, and we stress without deciding, that the trial representation was ineffective, that would mean only that this court should assess the fitness of sentence without affording the sentence imposed at trial the deference normally afforded in this court. We approach the case on that basis and are satisfied that the sentence imposed was entirely fit.

[5] The offences committed by the appellant, particularly the attempted murder, are very serious and in the specific circumstances of this case would easily merit a double digit penitentiary term. The sentence imposed of nine years reflects the significant mitigating factors, including the appellant’s guilty plea, the absence of any prior criminal record and the appellant’s substantial efforts while on bail pending his trial to change his life and become a contributing member of society. Those significant factors resulted in a sentence well below that which would have been imposed but for those factors.

[6] We would grant leave to appeal, but would dismiss the appeal and uphold the sentence imposed at trial.

“Doherty J.A.”

“R.G. Juriansz J.A.”

“H.S. LaForme J.A.”