R. v. Banasik
The finding of premeditation was not supported by the record, that finding materially influenced the sentencing judge's decision to impose immediate custody, and in its absence the sentence was excessive; the appeal is allowed and the sentence is varied to time served with probation preserved.
Source-derived case information.
- Citation
- C39146
- Parties
- Respondent: Her Majesty the Queen; Appellant: Przemyslaw Banasik; Appellant: Michal Mioduszewski
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 1 May 2003
- Procedural Posture
- Criminal / Appeal From Sentence (ontario Court of Justice, November 21, 2002)
- Outcome
- Appeal allowed; sentence varied.
- Legal Topics
- Sentencing, Aggravating Factors, Premeditation, Probation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Przemyslaw Banasik
Appellant
Michal Mioduszewski
Appellant
Procedural Posture
Criminal / Appeal From Sentence (ontario Court of Justice, November 21, 2002)
Legal Issues
- 1 Whether there was an adequate evidentiary basis for the sentencing judge's finding of premeditated, planned criminal activity
- 2 Whether the sentence was excessive in the absence of that aggravating finding
- 3 Whether appellate intervention to vary the sentence was warranted
Ratio Decidendi
The finding of premeditation was not supported by the record, that finding materially influenced the sentencing judge's decision to impose immediate custody, and in its absence the sentence was excessive; the appeal is allowed and the sentence is varied to time served with probation preserved.
Court Disposition
Appeal allowed; sentence varied.
Orders
- Appeal allowed
- Sentence varied to one of time served (9 days) and the terms of probation remain in effect
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Banasik Collection Decisions of the Court of Appeal Date 2003-05-01 Docket numbers C39146 Judges Charron, Louise Vivianne; Moldaver, Michael James; Feldman, Kathryn N. Subject Criminal Decision Content DATE: 20030501 DOCKET: C39146 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) -and- PRZEMYSLAW BANASIK and MICHAL MIODUSZEWSKI (Appellants) BEFORE: CHARRON, MOLDAVER and FELDMAN JJ.A. COUNSEL: Dana Garrick for the appellants Kelly Slate for the respondent HEARD: May 1, 2003 On appeal from the sentence imposed by Justice Norman S. Douglas of the Ontario Court of Justice dated November 21, 2002. APPEAL BOOK ENDORSEMENT [1] In our view, there was an insufficient basis on this record to support the sentencing judge's finding that this was a "premeditated, planned criminal activity". It is apparent from his reasons for sentence that this finding formed an important part of the sentencing judge's decision that a short, sharp term of imprisonment was required to meet the principles of sentencing. In the absence of this aggravating circumstance, we are of the view that the sentence was excessive having regard to the circumstances of each offender. [2] Consequently, the appeal is allowed, the sentence is varied to one of time served (9 days, plus the terms of probation).