COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McNulty, 2015 ONCA 776

DATE: 20151113

DOCKET: C60502

Gillese, Watt and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ashleigh McNulty

Appellant

Jonathan Bliss, for the appellant

Eric Siebenmorgen, for the respondent

Heard: November 6, 2015

On appeal from the sentence imposed on August 29, 2014 by Justice Robert P. Main of the Ontario Court of Justice.

ENDORSEMENT

[1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of assault and break, enter and commit the indictable offence of assault. She was found not guilty of possession of a weapon – a hatchet – for a purpose dangerous to the public peace. The offences all arose out of a home invasion in which the appellant and two others participated.

[2] The trial judge imposed a cumulative sentence of imprisonment for two years less one day, to be followed by concurrent periods of probation for two years, coupled with the usual ancillary orders.

[3] At trial, [then] counsel for the appellant sought a conditional sentence of imprisonment of two years less one day or a short sharp custodial sentence to be followed by a period of probation. The trial Crown sought a penitentiary sentence of three years.

[4] The appellant, who has been granted leave to appeal sentence, once again advances a conditional sentence of imprisonment as the appropriate sentencing disposition. In the alternative, she seeks a reduction in the quantum of the carceral portion of her sentence.

[5] The appellant says that the trial judge erred in principle in failing to consider the availability of a conditional sentence of imprisonment and in failing to impose such a sentence. Several factors, she submits, led the trial judge into error:

i. a mischaracterization of the appellant’s allocution as demonstrative of a lack of insight and absence of remorse;

ii. an overemphasis on the injuries to the victim, in light of the trial judge’s acquittal of the appellant on counts of assault with a weapon and possession of a weapon for a purpose dangerous to the public peace; and

iii. a failure to address, in any meaningful way, the availability of a conditional sentence of imprisonment.

[6] We see no error in the trial judge’s rejection of a conditional sentence of imprisonment as a fit sentence in this case.

[7] The appellant was a principal in a home invasion. It was she who:

i. had surreptitiously obtained a key to the premises;

ii. inveigled one resident out of the premises on the pretense of a meeting with him at a nearby coffee shop;

iii. was aware of the presence of another resident and his special needs son in the premises at the time of the invasion; and

iv. was an active participant in the entry to the unit and the initial restraint of the victim.

[8] Despite the generally favourable pre-sentence report and the appellant’s admirable rehabilitative efforts, both of which were taken into account by the trial judge, the offence in which the appellant participated and without whose instigation it could not have occurred, was a very serious offence. The maximum punishment upon conviction is imprisonment for life. The predominant sentencing objectives were denunciation and deterrence. The trial judge was also required to consider, as an aggravating circumstance, the fact that the apartment was, to the knowledge of the appellant, occupied at the time of the invasion and that the appellant used or threatened violence to the victim or the property.

[9] In our view, the trial judge correctly concluded that a conditional sentence of imprisonment was not a fit sentencing disposition. Such a disposition would not be consistent with the fundamental purpose and controlling sentencing principles. Further, as we see it, the principal offence of which the appellant was convicted was a serious personal injury offence within s. 752 of the Criminal Code as it read at the time of the sentencing. Indeed, the trial judge might have imposed a penitentiary sentence and would not have erred in principle had he done so.

[10] The appeal from sentence is dismissed.

“Eileen E. Gillese J.A.”

“David Watt J.A.”

“G. Pardu J.A.”