COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Davey, 2014 ONCA 594

DATE: 20140818

DOCKET: C58339

Sharpe, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Christopher Davey

Applicant/Appellant

David Russell, for the appellant

Sandy Thomas, for the respondent

Heard: August 14, 2014

On appeal from the sentence entered on February 4, 2013 by Justice D.M. Stone of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] The trial judge stated that the appropriate sentence was three years but for the fact that the appellant had “negotiated” for the purchase of a kilogram of cocaine, he added six months on that account. This was understandable as at the sentencing hearing, defence counsel appeared to concede the point. However at the guilty plea, defence counsel clearly stated that the appellant disputed that he had negotiated for one kilogram and that that there had merely been mention of the price. The Crown did not attempt to prove the contrary. Crown counsel fairly concedes that the facts must be taken as found at the guilty plea. Accordingly, we reduce the sentence by six months on that account.

[2] In his reasons, the trial discounted the need to consider Downes and the fact that appellant had been on house arrest for eight and a half months and for six and a half months on strict terms because the appellant was also on parole. However, the parole was on standard and non-restrictive terms. In our view, the appellant was entitled to some credit for the strict bail terms. We would reduce the sentence by an additional two months on that account.

[3] We see no merit in the remaining grounds. Accordingly, leave to appeal sentence is granted and the sentence is reduced to one of 34 months.