R. v. Burke
The trial judge was correct to reject the overly lenient joint submission as bringing the administration of justice into disrepute, but the imposed total of 47 months was manifestly excessive given the 3-for-1 credit of 27 months for 9 months pre-trial custody; an appropriate penitentiary term is three years and,...
Source-derived case information.
- Citation
- C41358
- Parties
- Appellant: Mark Burke; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 21 July 2004
- Procedural Posture
- Criminal / Appeal From Sentence
- Outcome
- Appeal allowed; sentence varied to time served.
- Legal Topics
- Credit for Pre Trial Custody, Joint Submission, Manifestly Excessive Sentence, Administration of Justice Disrepute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Burke
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal / Appeal From Sentence
Legal Issues
- 1 Whether the trial judge properly refused to accept the joint sentencing submission
- 2 Proper quantum of credit for pre-trial custody
- 3 Whether the imposed 47‑month sentence was manifestly excessive and required variation
Ratio Decidendi
The trial judge was correct to reject the overly lenient joint submission as bringing the administration of justice into disrepute, but the imposed total of 47 months was manifestly excessive given the 3-for-1 credit of 27 months for 9 months pre-trial custody; an appropriate penitentiary term is three years and, because the appellant had already effectively served that term when credit and additional custody are accounted for, the sentence is varied to time served.
Court Disposition
Appeal allowed; sentence varied to time served.
Orders
- Appeal allowed.
- Original sentence varied to a three year penitentiary term.
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Burke Collection Decisions of the Court of Appeal Date 2004-07-21 Docket numbers C41358 Judges Abella, Rosalie Silberman; Moldaver, Michael James; Goudge, Stephen Thomas Subject Criminal Decision Content DATE: 20040721 DOCKET: C41358 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – MARK BURKE (Appellant) BEFORE: ABELLA, MOLDAVER and GOUDGE JJ.A. COUNSEL: Scott Reid for the appellant Anya Weiler for the respondent HEARD AND ENDORSED: July 9, 2004 On appeal from the sentence imposed by Justice David A. Fairgrieve of the Ontario Court of Justice dated July 28, 2003. APPEAL BOOK ENDORSEMENT [1] The trial judge gave careful and considered reasons for refusing the accept the joint submission of 18 months less time already spent in pre-trial custody. In our view, he was correct in concluding that the proposed sentence was far too low and would bring the administration of justice into disrepute. [2] In light, however, of the trial judge’s conclusion that the time spent in pre-trial custody of 9 months should be credited on a 3-for-1 basis totalling 27 months, the total sentence imposed of 47 months was manifestly too high. In all the circumstances, we are of the view that a penitentiary term of 3 years would have been appropriate. Since the appellant has already served almost 12 months in addition to the pre-trial custody (credited at 27 months), we would vary the sentences to time served. [3] Leave granted and the appeal accordingly allowed.