R. v. Superales
The trial judge's declaration that s.85(3)(a) was invalid was set aside because the judge failed to give appropriate weight to denunciation and general deterrence; the Court substituted a global custodial sentence of 18 months, adjusted for credit already granted (five months) and additional pre-sentence custody...
Source-derived case information.
- Citation
- 2019 ONCA 792
- Parties
- Appellant: Her Majesty the Queen; Respondent: Aljome Superales
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 3 October 2019
- Procedural Posture
- Criminal / Appeal From Conviction and Sentence
- Outcome
- Declaration of invalidity of s.85(3)(a) set aside; sentence varied and substituted by the Court of Appeal.
- Legal Topics
- Sentencing, Minimum/mandatory Sentence Validity, Denunciation and General Deterrence, Credit for Pre Trial Custody and Bail Conditions, Probation, Victim Surcharge
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Appellant
Aljome Superales
Respondent
Procedural Posture
Criminal / Appeal From Conviction and Sentence
Legal Issues
- 1 Validity of Criminal Code s.85(3)(a) minimum sentence
- 2 Proper sentencing principles and weight to denunciation and general deterrence
- 3 Appropriate credit for pre-trial custody and restrictive bail conditions
Ratio Decidendi
The trial judge's declaration that s.85(3)(a) was invalid was set aside because the judge failed to give appropriate weight to denunciation and general deterrence; the Court substituted a global custodial sentence of 18 months, adjusted for credit already granted (five months) and additional pre-sentence custody credit (38 days), left the probation order intact, and set aside the victim surcharge under R. v. Boudreault.
Court Disposition
Declaration of invalidity of s.85(3)(a) set aside; sentence varied and substituted by the Court of Appeal.
Orders
- Substituted custodial sentence of 18 months' imprisonment.
- Reduce the substituted sentence by five months to account for credit granted by the sentencing judge for pre-trial bail conditions.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Superales Collection Decisions of the Court of Appeal Date 2019-10-03 Neutral citation 2019 ONCA 792 Docket numbers C66124 Judges Juriansz, Russell G.; Benotto, Mary Lou; Miller, Bradley Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Superales, 2019 ONCA 792 DATE: 20191003 DOCKET: C66124 Juriansz, Benotto and Miller JJ.A. BETWEEN Her Majesty the Queen Appellant and Aljome Superales Respondent Michael Perlin, for the appellant Jenny Prosser, for the respondent Heard and released orally: September 27, 2019 On appeal from the conviction entered by Justice David Aston of the Superior Court of Justice on March 8, 2018 and the sentence imposed on October 25, 2018. REASONS FOR DECISION [1] We are of the view that the trial judge imposed a sentence that is demonstrably unfit by failing to recognize that denunciation and general deterrence are the paramount sentencing objectives for the offence and by concluding the minimum sentence required under s. 85(3)(a) was grossly disproportionate punishment for the offence. His declaration that s. 85(3)(a) is invalid is set aside. [2] It falls to us to determine a fit sentence. The circumstances of this case are similar to those in R v. Clarke, 2014 ONCA 296. In Clarke this court upheld a global sentence of two years less a day. Noting that the offender in Clarke made greater use of the imitation firearm than did the respondent, we substitute a sentence of 18-months’ imprisonment, for the five-month sentence imposed by the sentencing judge. The 18-month sentence will be reduced by five months to account for the credit granted by the sentencing judge to account for the respondent’s pre-trial bail conditions, and by an additional 38 days as credit for 25 days the respondent spent in pre-sentence custody. The resulting effective sentence of imprisonment is 13 months less 38 days. The correctional authorities, when calculating the respondent’s sentence, release, and parole eligibility, should account for the 113 days that we understand the respondent has already served to satisfy the sentence imposed by the sentencing judge. The probation order imposed by the sentencing judge remains unchanged. The victim surcharge is set aside pursuant to R. v. Boudreault, 2018 SCC 58. “R.G. Juriansz J.A.” “M.L. Benotto J.A.” “B.W. Miller J.A.”