R. v. McMillan

R. v. McMillan Collection Decisions of the Court of Appeal Date 1999-07-13 Docket numbers C31727 Judges Osborne, Coulter Arthur Anthony; Weiler, Karen Merle Magnuson; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 19990713 DOCKET: C31727 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. CALVIN MCMILLAN (Appellant) BEFORE: OSBORNE A.C.J.O., WEILER and FELDMAN JJ.A. COUNSEL: Jeanine E. Le Roy for the appellant Michael Bernstein for the respondent HEARD: July 7, 1999 On appeal from the disposition of Her Honour Judge K. McGowan dated February 23, 1999. ENDORSEMENT [1] The appellant pled guilty to the offence of choking. Two other offences, assault with a weapon and uttering death threats were withdrawn. However, the facts pertaining to those offences and, of course, the offence of choking were read into the record in support of the appellant’s guilty plea. [2] The appellant is the husband of the complainant. There is no doubt that the offence to which the appellant pled guilty was serious, involving as it did an attack by the intoxicated appellant upon his wife. At trial, the Crown sought a 6 month custodial, non-conditional sentence. [3] The defence submitted that the sentence to be imposed ought to be conditional sentence. The trial judge accepted neither position. Instead, she sentenced the appellant to imprisonment for 18 months plus 2 years probation on terms that we need not set out. [4] In sentencing the appellant, the trial judge referred to this court’s judgment in R. v. Wismayer. The trial judge said: … but in cases such as this, where the need to denounce the offence and to protect society is as great as it is today, in my view a conditional sentence should only be granted in the most exceptional circumstances. [5] In limiting access to a conditional sentence in cases such as this to those involving the “most exceptional circumstances”, we think that the trial judge erred. In addition, in our view, the trial judge over-emphasized general deterrence and in doing so failed to take into appropriate account a number of undisputed mitigating factors, including: (a) the appellant has no criminal record; (b) the appellant immediately accepted full moral responsibility for his conduct; (c) the appellant, having recognized that his excessive consumption of alcohol led to his criminal conduct, stopped drinking; (d) having ceased to consume alcohol, the appellant joined Alcoholics Anonymous; and (e) the appellant pled guilty to the offence of choking at the first opportunity. [6] In our view, in all of the circumstances of this case, we think that our intervention is warranted. We would grant leave, allow the appeal, and in place of the custodial sentence of 18 months, we would substitute a custodial but conditional sentence of 12 months on the conditions filed, which include a restriction on the appellant’s liberty through a form of house arrest.