COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Melo, 2012 ONCA 562

DATE: 20120829

DOCKET: C54713

Feldman, Sharpe and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jose Melo

Appellant

Counsel:

Gregory L. Lafontaine and David Merrick Shulman, for the appellant

Maria E. Stevens, for the respondent

Heard: August 22, 2012

On appeal from the sentence imposed on September 13, 2011 by Justice Patrick J. Flynn of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant appeals his sentence of 5 years minus 20 months credit for 14 months pre-trial custody, leaving 40 months following sentencing for the offences of aggravated assault and possession of a firearm without a license. The main ground of appeal is that although the appellant pled guilty to aggravated assault in exchange for the Crown dropping the original charge of attempted murder, the trial judge took into account that the appellant had previously planned to kill his wife and himself, and imposed a higher sentence as a result.

[2] We do not agree that any error was made. This was a very serious domestic assault where a loaded rifle was used to intimidate the appellant’s wife at a settlement meeting and ended up discharging. The fact that the appellant had at one time planned to kill his spouse was an aggravating factor that the trial judge was entitled to consider.

[3] The sentence was not unfit nor did the trial judge make an error in principle.

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

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Ducharme J.A.”