Court of Appeal for Ontario
CITATION: R. v. Milijanovic, 2012 ONCA 647
DATE: 20120927
DOCKET: C55344
BEFORE: Sharpe, Simmons, and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jonathan Miljanovic
Appellant
COUNSEL:
Megan Savard, for the appellant
Jennifer Mannen, for the respondent
HEARD: September 26, 2012
On appeal from the sentence imposed on April 3, 2012 by Justice B. Zabel of the Ontario Court of Justice,
APPEAL BOOK ENDORSEMENT
[1] We agree with the appellant that the trial judge erred in principle when he rejected the joint submission on the sentence. The trial judge stated that the proposed sentence was “getting close to being a joint submission that the court would reject as being contrary to the public interest” and then imposed additional term, namely, an additional year driving prohibition and community service.
[2] At that point, the trial judge understood the proposed conditional sentence of 90 days to be in addition to pre-trial custody. When informed that the parties had agreed to 90 days his credit for pre-trial custody, he stated that to be “wholly inadequate”. While that came closer to the correct legal test, he had already decided to add to the joint submission on the basis that it was “close” to being contrary to the public interest.
[3] The trial judge’s reasons do not reflect the correct legal test.
[4] While the joint submission appears on its face to be very favourable to the appellant, we accept the point made by counsel that the joint submission reflected a host of factors, including money forfeited by the appellant despite the withdrawal of the drug charges, forgoing a trial where there were triable issues and making full restitution for the damage to the other car.
[5] Accordingly, we grant leave to appeal sentence, allow the appeal, and set aside the sentence imposed and impose a sentence as per the joint submission, namely:
35 days custody after credit for pre-trial custody
The statutory one year driving prohibition.