COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Micallef, 2014 ONCA 117
DATE: 20140212
DOCKET: C57702
Doherty, Goudge and Hourigan JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Adam Micallef
Appellant
Breana Vandebeek, for the appellant
Avene Derwa, for the respondent
Heard and released orally: February 10, 2014
On appeal from the sentence imposed by Justice Khoorshed of the Ontario Court of Justice, dated July 23, 2013.
ENDORSEMENT
[1] The trial judge was properly concerned about the quantum of sentence put forward on the joint submission. He ultimately declined to follow the joint submission and imposed a sentence of one year. He did so in part because he regarded the offences to which the appellant had pled guilty (break and enter of a residence, possession of stolen property) as crimes of “violence”. This was, with respect, a mischaracterization of the offences. That mischaracterization constitutes an error in principle that calls for this court’s reassessment of the sentence.
[2] The sentence agreed to in the joint submission, four months, was no doubt a very lenient one. Although the record is not as detailed as one would hope, it would appear that the joint submission was based on an acceptance of the appellant’s rehabilitative potential. Apart from a brief period of time during which the appellant suffered significant financial difficulties, it would appear that he has led a productive law-abiding life.
[3] We have considered the fresh evidence offered in the appellant’s affidavit. It would appear that the rehabilitative potential is being realized. We see no value in re-incarceration and are concerned that it may negatively impact on the appellant’s continued rehabilitation. Consequently, and despite the leniency of the sentence proposed in the joint submission, we are prepared to accede to that joint submission at this point.
[4] The appeal will be allowed and the sentence is varied to time served, the equivalent of four months.
“Doherty J.A.”
“S.T. Goudge J.A.”
“C.W. Hourigan J.A.”