Court of Appeal for Ontario

Date: 2018-12-14 Docket: C64533

Judges: Feldman, MacPherson and Nordheimer JJ.A.

Between

Her Majesty the Queen Respondent

and

Vincent Justin Bury Appellant

Counsel

Vincent Justin Bury, acting in person Brian Snell, as duty counsel Andrew Hotke, for the respondent

Heard: December 10, 2018

On Appeal

On appeal from the sentence imposed on September 8, 2017 by Justice Andrew Buttazzoni of the Superior Court of Justice, sitting without a jury.

Appeal Book Endorsement

[1] The appellant was convicted of possession of a loaded restricted firearm, possession of a restricted firearm with readily accessible ammunition, break and enter with intent to steal a firearm, breach of an undertaking, and breach of a probation order. He received a global sentence of 5 ½ years, less credit for 30 months served (20 months at 1.5:1 enhanced credit). The principal components of the sentence were 36 months for possession of a loaded restricted firearm and 30 months consecutive for break and enter with intent to steal a firearm. The appellant appeals only the sentence.

[2] We agree with the sentencing judge who said: "This is a difficult sentencing." However, in the end we are of the view that the global sentence of 5 ½ years is too high, essentially for two reasons.

[3] First, although the sentencing judge was entitled to impose consecutive sentences for the two offences set out above, in our view the combination of 36 months for the first offence and 30 additional months for the second offence, when the two offences were closely connected and took place within either one or two days, is too harsh.

[4] Second, although the sentencing judge gave credit for the appellant's guilty plea and mentioned that he had "completed some rehabilitative programs while in custody", in our view the sentencing judge overemphasized denunciation and deterrence in a case involving a 19-year old offender.

[5] The appellant had seen, and been subject to, domestic abuse in his family, he felt directly responsible for his father's suicide, and he tried to commit suicide himself. Yet during the time between arrest and sentencing (about 17 months) the appellant made very substantial efforts to change his life. He received strong letters of commendation from a teacher and prison chaplain, was on the cusp of receiving his high school diploma, had overcome an addiction problem, and was focussed on trying to be reunited with his young son. In his statement to the court during the sentence hearing, he said this about his son:

I'm tired of this life and I want to be there for my son. He is starting school next September and I wish I could be there…Your Honour, I believe that the number one person who suffers is my son and I have an incredible bond with my son. He knows who I am and he has the brightest smile I ever seen when he sees me. It honestly breaks my heart every time. I really do not ever want to go through this again, nor do I want my son to. It's not fair that he suffers because of my actions.

[6] Finally, we note that the sentencing judge observed that "after listening to the accused in court I am satisfied that he is truly remorseful."

[7] Taking these two factors together, we are of the view that the global sentence of 5 ½ years' imprisonment was too harsh for this offender.

[8] The appeal is allowed and the sentence is reduced to four years. To achieve this result, the sentence for count 40 – break and enter with intent to steal a firearm – is reduced to 12 months consecutive to count 23 and count 26 is reduced to 12 months concurrent.

J.C. MacPherson J.A.