Court of Appeal for Ontario

Date: 2022-02-10 Docket: C69798

Judges: Miller, Trotter and Zarnett JJ.A.

Between: Her Majesty the Queen Respondent

And: Marcin Beran Appellant

Counsel: Marcin Beran, acting in person Jacob Millns, for the respondent

Heard: February 7, 2022 by video conference

On appeal from the sentence imposed on July 15, 2021 by Justice Kathryn L Hawke of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant advanced two grounds of appeal of his sentence for firearms related offences: (1) that the sentence is overly harsh and oppressive, and (2) the sentencing judge did not take into account the onerous conditions of incarceration the appellant has experienced as a result of the frequent lockdowns imposed to combat the spread of Covid in institutional settings.

[2] With respect to the first ground, we do not agree that the sentencing judge made any errors of principle or misapprehended any material facts. The sentence imposed was not significantly higher than that proposed by the defence at trial. It was well within the available range. We do not agree with the submission that the fact there was no evidence the gun was used as part of a drug dealing enterprise renders the sentence unfit.

[3] The application of a Duncan credit is a discretionary matter, and there is no basis on which we would interfere with the sentencing judge’s exercise of discretion. She referenced all the relevant principles and clearly and sympathetically recounted the appellant’s evidence of the harsh conditions that he has (and has continued) to experience. The sentencing judge factored these harsh conditions into the sentencing process as a mitigating factor, as she was required to do. She was not required to do anything further, such as provide a mathematical calculation of a sentencing credit. This ground of appeal must fail as well.

Disposition

[4] Leave to appeal sentence is granted, and the appeal of sentence is dismissed.

"B.W. Miller J.A."

"Gary Trotter J.A."

"B. Zarnett J.A."