R. v. Young

R. v. Young Collection Decisions of the Court of Appeal Date 1998-11-06 Docket numbers C29814 Judges McMurtry, Roy; Catzman, Marvin Adrian; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 1998116 DOCKET: C29814 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. JOSHUA YOUNG (Applicant/Appellant) BEFORE: McMURTRY C.J.O., CATZMAN and CHARRON JJ.A. COUNSEL: Leslie C. Pringle, for the appellant Kenneth L. Campbell, for the respondent HEARD: November 3, 1998 ENDORSEMENT [1] The appellant appeals against his sentence which consisted of a total term of imprisonment of seven months and an order for restitution. The Crown concedes that the seven-month term of imprisonment was excessive in the circumstances of this case and submits that it ought to be reduced to a term within the intermittent range. The appellant seeks a reduction of his sentence to the period of time served in pre-trial custody of two and a half weeks. [2] The concession made by the Crown is well founded. In our view, an appropriate range of sentence in the circumstances of this case is either a non custodial disposition or a short, sharp term of imprisonment. Given the passage of time since the conviction, we agree with counsel for the appellant that no imprisonment should be imposed at this time. [3] The appellant also argues that there was no evidentiary basis upon which the sentencing judge could base the order for restitution. We agree. While submissions were made by Crown counsel with respect to the alleged damage to the boat, defence counsel contested that this damage was caused during the course of the commission of the offence. Following this objection, Crown counsel did not pursue the matter. Further, no evidence was called with respect to any damage to the cottage. On this record, there was no basis for the making of the restitution order. [4] Leave to appeal is granted, the appeal is allowed and the sentence, concurrent with respect to each offence, is varied as follows. In lieu of the term of imprisonment, the sentence will be suspended with a term of probation for two years on the following terms: (1) That he report to a probation officer at the Ministry of the Solicitor General and Correctional Services in Gravenhurst, Ontario within five working days of the release of the Court's judgment, and as often thereafter as directed by that probation officer; (2) That he observe a curfew between the hours of 12:00 midnight and 6:00 a.m. each day, unless accompanied by his mother, or for purposes of employment; (3) That he seek and maintain gainful employment or continue to attend school; (4) That he refrain absolutely from any communication or association with Mr. Mark West, or any other person known by the appellant to have a criminal or youth record; (5) That he abstain from the consumption of any alcohol, except in his home in the presence of a family member, other intoxicating substances, or non-prescription drugs; (6) That he attend for alcohol and substance abuse assessment and counselling as directed by his probation officer; (7) That he attend for assessment and counselling with respect to emotional health issues as directed by his probation officer; and, (8) That he perform 100 hours of community service over the course of the first year of the probation order. [5] The order for restitution is deleted.