Court of Appeal for Ontario

Date: 2018-10-04 Docket: C65811

Judges: Sharpe, Lauwers and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Darin Shute Appellant

Counsel

Scott C. Hutchison and Karen Heath, for the appellant Nicole Rivers, for the respondent

Heard and released orally: October 4, 2018

On appeal from: The sentence imposed by Justice William R. Wolski of the Ontario Court of Justice on July 26, 2018.

Reasons for Decision

[1] Following extended sentencing discussions, the appellant pleaded guilty to aggravated assault and breach of probation. Counsel agreed that the appellant's pretrial custody should be credited on a 1.5 to 1 basis and subtracted from any sentence imposed.

[2] Counsel further agreed that the Crown would seek a sentence of 18 to 24 months less pretrial custody, and that the appellant would ask for sentence of 15 months less pretrial custody.

[3] During the sentencing discussions, the Crown did not advert to pretrial custody and the appellant's counsel inadvertently asked for sentence of 15 months in addition to pretrial custody, an equivalent of over 28 months.

[4] The Crown agrees that the fresh evidence relating to the plea discussion and submissions should be admitted, that leave to appeal sentence should be granted and that the sentence appeal should be allowed. The issue is what sentence ought this court to impose. The Crown maintains its position that a sentence in the range of 18 to 24 months would be appropriate. The appellant acknowledges that this range is appropriate and asked for a sentence at the low end of the range of 18 months. The appellant has served 276 days of pretrial custody to be credited as 414 days.

[5] The appellant stabbed the victim with a broken box cutter following an earlier altercation between the two men. The appellant does have an extensive criminal record, including several convictions for offences of violence, albeit less serious than the present offence.

[6] Taking into account the guilty plea and the fact that the sentencing judge found that the appellant's prospects for rehabilitation were good, it is our view that a sentence at the low end of the range suggested by the Crown would be appropriate, namely, 18 months less credit for time served in pretrial custody.

[7] Accordingly, we substitute a sentence of four months from the date of sentencing, July 26, 2018 for the 15 months imposed by the sentencing judge. We impose the same two year probation term as imposed by the sentencing judge and we maintain the probation order.

"Robert J. Sharpe J.A." "P. Lauwers J.A." "K. van Rensburg J.A."