COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Fuller, 2012 ONCA 473

DATE: 20120703

DOCKET: C55346

Goudge, Feldman, Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Fuller

Appellant

Najma Jamaldin, for the appellant

Randy Schwartz, for the respondent

Heard: June 29, 2012

On appeal from the sentence imposed by Justice L. Duchesneau-McLachlan of the Ontario Court of Justice, dated January 10, 2012.

APPEAL BOOK ENDORSEMENT

[1] Without our deciding whether the appeal is moot or not, Mr. Schwarz concedes that this court has the jurisdiction to hear the appeal on the merits in spite of what may be a practice to the contrary.

[2] On the merits, in our view the sentence was excessive having regard to the fact that the appellant is a relatively youthful first offender who had never been incarcerated before. In addition we think it was an error for the trial judge to rely upon unsworn and uncontested statements of the appellant’s father from the body of the courtroom, setting out his view that his son required treatment for his drug addiction, particularly where it appears there was conflict between father and son. At the very least, the trial judge should have ordered a pre-sentence report or heard evidence that could have been tested.

[3] Accordingly, leave to appeal is granted and the appeal is allowed by setting aside the sentence imposed by the trial judge and substituting a sentence in the terms of the joint submission.