Court of Appeal for Ontario

Date: 2017-08-02 Docket: C61629

Panel: Hoy A.C.J.O., Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Mayk Oliveros-Callejas Appellant

Counsel

Vincenzo Rondinelli, for the appellant Mayk Oliveros-Callejas, appearing in person Michael Bernstein, for the respondent

Heard

July 12, 2017

On Appeal

On appeal from the sentence imposed on January 7, 2016 by Justice Helen Rady, of the Superior Court of Justice.

Appeal Book Endorsement

[1] The appellant seeks leave to appeal the sentence imposed by the trial judge, arguing that the trial judge erred in rejecting the joint submission on sentence of counsel.

[2] We reject this argument. In our view, there is no basis to interfere with the trial judge's decision to "jump" the joint submission on sentence. The trial judge did not err in the approach she followed or in the test she applied in rejecting the joint submission.

[3] On the third day of trial, in the middle of the complainant's cross-examination, the appellant plead guilty to attempted murder of the complainant, who was his spouse. The Crown and defence agreed that a sentence of seven years was appropriate.

[4] On the day originally reserved for sentencing, the trial judge advised counsel that she was troubled by the joint submission and invited them to make further submissions.

[5] The appellant did not seek to withdraw his guilty plea when made aware of the trial judge's concerns.

[6] The Crown characterized the sentence as at the lower end of the range and explained that it had considered the admission of guilt, the fact that the complainant was content with the proposed sentence, and the fact that the appellant would be deported, which would provide peace of mind to the complainant.

[7] The trial judge concluded that the joint submission was contrary to the public interest and it would bring the administration of justice into disrepute. She rejected the joint submission and imposed a sentence of 10 years' incarceration.

[8] The trial judge recognized and endorsed why a joint submission is a valuable and important part of the criminal justice process and that there is a high threshold for rejecting a joint submission.

[9] She provided clear and cogent reasons for departing from the joint submission. She noted that the joint submission was in fact below the appropriate range identified by this court for attempted murder in a domestic context and identified seriously aggravating factors: the appellant had a prior record for assaulting the complainant and was bound by the terms of a non-association order at the time of the offence; and the attack was particularly horrific and the complainant was lucky to have survived.

[10] While the trial judge did not employ the wording in the subsequently decided R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, the joint submission was so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.

[11] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.