COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dawkins, 2015 ONCA 202

DATE: 20150325

DOCKET: C58075

Epstein, Pepall and Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Daquan Dawkins

Respondent

Robert Gattrell, for the appellant

Paul Calarco, for the respondent

Heard: March 9, 2015

On appeal from the sentence imposed on November 26, 2013 by Justice Janet Wilson of the Superior Court of Justice, sitting without a jury.

APPEAL BOOK ENDORSEMENT

[1] The Crown appeals the sentence imposed of five years plus 49 days plus three years’ probation for the offences of aggravated assault, robbery with a firearm, unauthorized possession of a firearm, breach of a firearms prohibition order and breach of probation. After credit for time served, the respondent was sentenced to spend two years less one day in jail. His anticipated release date is in approximately three weeks.

[2] Both Crown and defence counsel agree that the trial judge erred in failing to apply the five year minimum sentence pursuant to s. 344(1)(a) of the Criminal Code.

[3] However, even correcting for the error, we would not interfere with the sentence imposed.

[4] We come to this conclusion based on a number of factors including the respondent’s youth and the sentence imposed on the other offender involved in the robbery. Of particular importance is the fact that the respondent has spent a total of almost five years in the reformatory system and the fresh evidence, that the Crown agreed should be considered, demonstrates that the respondent has responded well to the programs available to him in that setting.

[5] Simply put, while the sentence is at the very low end of the range for these offences, it would not be in the interests of justice to remove the respondent from a place where he has made substantial gains and subject him to additional time in the penitentiary.

[6] The appeal is therefore dismissed.