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The Ontario Court of Appeal upheld convictions in a multi-count domestic and sexual violence case, but reduced the net sentence from seven years to five years for failing to apply restraint.
The Ontario Court of Appeal granted leave to appeal but dismissed the sentence appeal, upholding a 7-year global sentence for loaded firearm possession and denying Downes credit.
The Court granted leave to appeal but concluded the trial judge's sentencing decision—imposing 42 months imprisonment with 6 months Downes credit and 12 days presentence custody credit—fell within the broad discretionary range and was not shown to be an error in principle; therefore the sentence is fit and must be affirmed.
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The Court held that the lengthy period the appellant spent subject to restrictive bail conditions constituted a mitigating factor warranting reduction of the global custodial sentence to 12 months (365 days) and, after crediting 21 days presentence custody, substituting a 344-day custodial sentence; it also held the sentencing judge did not err in principle in declining a conditional sentence because the gravity of the domestic assault, pattern of domination and breach of trust required a custodial sentence to achieve denunciation and deterrence.
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The appeal is dismissed because the record and the trial judge's reasons support an inference that sufficient Downes credit was given; no error in principle was identified and the appellant's post-sentencing rehabilitation did not make this an exceptional case warranting further reduction.
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The Court allowed the appeal and held the trial judge erred in principle by using aggravating facts from the sexual interference offences to elevate the remaining sentence after accepting a joint one‑year sentence for those offences (thus double‑counting); the error materially affected the sentence so the remaining sentence was set aside and a substituted global sentence was imposed consistent with Anthony-Cook, Friesen and the totality principle.
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The sentencing judge erred in principle by underestimating the seriousness of the firearms offences through a misapplication of the 'true crime' concept and by mischaracterizing mitigating factors; because a penitentiary term could not be excluded, a conditional sentence was inappropriate and the Court of Appeal substituted a total sentence of four and one‑half years before credits, setting aside the lower court sentences.
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The sentencing judge committed reversible legal and factual errors by denying any Downes credit: delays were not occasioned almost exclusively by the appellant, the judge misapprehended evidence about inadequate medical care while on interim release, and it was improper to limit credit on the ground that the appellant could have sought bail variation; accordingly appellate intervention was warranted to grant additional Downes credit and reduce the sentence by five months, substituting a net sentence of 4.8 months from the original sentencing date.
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Because the sentencing judge was misinformed about the durations in presentence custody and on restrictive bail and the parties jointly identified the correct figures, the court granted an additional 37 days credit and ordered that the warrant of committal be amended to reflect that credit; the sentence was otherwise affirmed.
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The trial judge properly considered the punitive impact of bail and permissibly declined Downes credit based on the totality principle; even if use of concurrency to deny Downes credit were erroneous, the global six‑year sentence was nonetheless fit given the gravity of the offences, and the fresh evidence did not show the rare post‑sentencing change required to revisit sentence absent error.
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