Court of Appeal for Ontario

Date: 2019-06-05 Docket: C64307

Judges: Feldman, van Rensburg and Huscroft JJ.A.

Between

Her Majesty the Queen Respondent

and

Raymond Lo Verde Appellant

Counsel

Raymond Lo Verde, in person Amy Ohler, duty counsel Michael Fawcett, for the respondent

Heard: June 3, 2019

Appeal Information

On appeal from the conviction entered on July 2017 and the sentence imposed on August 16, 2017 by Justice Joseph Bovard of the Ontario Court of Justice.

Appeal Book Endorsement

[1] Duty Counsel raised two grounds of appeals. The first is with respect to the conviction for break and enter. Crown counsel agrees that the trial judge erred by failing to address the issue of the appellant's apparent intoxication in the context of a specific intent offence, although defence counsel did not raise any objection at trial.

[2] Both counsel ask the court to substitute a conviction for forcible entry contrary to s. 72(1) of the Code. So ordered.

[3] The appellant on his own appeals his conviction for sexual assault of the police officer. There is no basis to interfere. The trial judge considered all of the evidence and believed the officer, which he was entitled to do. This ground of appeal is dismissed.

[4] Duty counsel also sought to appeal the sentence of time served on the sexual assault and to substitute a conditional discharge. The appellant brought forward some very positive letters regarding his program at Emmanuel College and other positive steps that he has taken since the sentencing.

[5] While we commend the appellant highly for the positive steps he has taken in his life, we are not in a position to substitute a conditional discharge when that was not requested at sentencing, and when there were other factors at play including substance abuse.

[6] While leave to appeal sentence is granted, the appeal against sentence is dismissed. The victim fine surcharge is set aside on consent.