Court of Appeal for Ontario

Date: 2019-12-16 Docket: C65341

Judges: MacPherson, Sharpe and Zarnett JJ.A.

Between

Her Majesty the Queen Respondent

and

Neiman Jordan Diaz Appellant

Counsel

Neiman Jordan Diaz, acting in person

Matthew Gourlay, as duty counsel

Jessica Smith Joy, for the respondent

Heard: December 11, 2019

On appeal from the sentence imposed on April 6, 2018 by Justice Kimberley Crosbie of the Ontario Court of Justice.

Appeal Book Endorsement

[1] The appellant abandons his conviction appeal.

[2] On the sentence appeal, accepting, as we do, the sentencing judge's identification of the appropriate range for sentence as being four to six years, we think that the imposition of a sentence at the absolute top of this range – namely, six years - is too harsh. There are several strong mitigating factors in the appellant's favour, including a terrible sexual assault on him when he was a teenager and the eloquent description of his hardships by his parents. Importantly, although the appellant has a criminal record, his longest previous sentence was six months. In light of these factors, we are of the view that the actual sentence imposed within the range identified by the trial judge should have been, at most, about halfway in the range that she correctly identified.

[3] The conviction appeal is dismissed as abandoned. The sentence appeal is allowed and the sentence is reduced to five years.

[4] The $400 victim surcharge is set aside.