Court of Appeal for Ontario

Date: 2019-05-17

Docket: C64566

Judges: Doherty, Benotto and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

David Sullivan Appellant

Counsel

Stephanie DiGiuseppe, for the appellant

Joan Barrett, for the respondent

Hearing and Appeal

Heard: May 16, 2019

On appeal from the sentence imposed by Justice David Salmers of the Superior Court of Justice on February 22, 2017.

Appeal Book Endorsement

[1] The trial judge determined that a five-year sentence was appropriate in all of the circumstances. Having regard to credit for presentence custody (1,226 days), the trial judge then imposed a sentence of 599 days, to be followed by three years' probation.

[2] The offence was very serious and the appellant's mental condition makes him a significant risk. We see no error in the imposition of a five-year custodial sentence.

[3] The parties agree that the appellant was entitled to an additional 41 days credit for presentence custody. This reduces the sentence to 558 days (599 – 41). The appellant has fully served that sentence. Consequently, the custodial portion of the sentence is varied to time served (558 days).

[4] The appellant also argues that the probation term should be varied from three years to one year and that he should be "credited" for that one year based on his release on bail pending appeal about 14 months ago on terms which he says are similar to the probation.

[5] The Crown tendered fresh evidence on appeal. The appellant did not object to its admission. That evidence demonstrates that the appellant has apparently breached the terms of his bail release on several occasions. We note those terms were not onerous.

[6] The probation order, which included treatment and counselling terms, was an appropriate part of the sentence. In fact, it was essential to the protection of the public. Nothing that has happened since the appellant was released on bail pending appeal offers any support for the conclusion that the probation order is any less necessary than it was when it was imposed.

[7] The appeal is allowed to the extent of varying the custodial term to time served. The parties also agree that the victim surcharge should be deleted. Otherwise the sentence remains as imposed.