Court of Appeal for Ontario

CITATION: R. v. Monether, 2013 ONCA 197

DATE: 20130402

DOCKET: C56504

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Leslie Monether

Appellant

Counsel:

Heather Pringle, for the appellant

Randy Schwartz, for the respondent

Heard: March 27, 2013

On appeal from the conviction entered on November 3, 2009 and the sentence imposed on November 3, 2009 by Justice John D. G. Waugh of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant pleaded guilty and was convicted of the offences of robbery with a firearm contrary to s. 344(a) of the Criminal Code and use of a firearm during the commission of an offence contrary to s. 85(1) of the Code. On a joint submission, he was sentenced to eight years imprisonment concurrent for both offences.

[2] The appellant contends that the conviction for the s. 85(1)(a) offence was statute barred by its wording which specifically excludes from its coverage a s. 344 offence. The Crown agrees with this submission. So do we. The conviction for the s. 85(1)(a) offence is set aside and an acquittal is entered.

[3] The appellant submits that an eight year concurrent sentence for the s. 85(1)(a) offence was an illegal sentence because s. 85(3)(a) and (4) of the Code require a minimum sentence of one year to be served consecutively to any punishment imposed for other offences arising out of the same event. We agree.

[4] However, that leaves a valid conviction for robbery with a firearm and an eight year sentence for that offence based on a joint submission. We agree with the Crown. We see no basis for interfering with the joint submission. The fresh evidence, although impressive in relation to the appellant’s progress in the prison, does not change this conclusion. Accordingly, the sentence appeal is dismissed.

“J.C. MacPherson J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”