Court of Appeal for Ontario

Date: 2019-10-09

Docket: C66631

Judges: Rouleau, Trotter and Harvison Young JJ.A.

Between

Her Majesty the Queen Respondent

and

Robert Jeffrey Johnson Appellant

Counsel

Robert Johnson, acting in person

Jessica Smith Joy, for the respondent

Richard Litkowski, duty counsel

Heard

October 2, 2019

Appeal

On appeal from the sentence imposed by Justice Joseph A. De Filippis of the Ontario Court of Justice on January 31, 2019.

Appeal Book Endorsement

[1] The appellant entered pleas of guilty to a number of offences involving theft, threatening, fail to stop, break and enter, and others.

[2] The Crown submitted an appropriate sentence was two years in addition to pre-sentence custody credited at five months. The defence submitted that 18-24 months less pre-sentence custody was appropriate. The sentencing judge said he accepted the defence range, deduced pre-sentence custody and arrived at a sentence of 21 months. Duty counsel submits this was a mathematical error.

[3] The appellant also submits that the sentencing judge did not take into account his Indigenous background.

[4] The trial judge makes no express reference to the appellant's Indigenous background in his very brief reasons for sentence. It is impossible for us to determine whether he took this factor into account. Combined with what we consider to be a misapprehension of the range proposed by defence counsel, this failure must result in a reduction of the appellant's sentence. In all of the circumstances, and after taking into account five months credit for pre-sentence custody, the appellant's total sentence should be 17 months. This is achieved by reducing the sentences for theft and threats to Mr. Rinaldi on Information #N18-4749. On the plea to theft and threatening offences, the sentences are reduced by four months on each count. For greater clarity, the sentences on both counts are reduced from nine months to five months, one concurrent one to the other. The remainder of the sentence remains the same.