



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Diaz, 2019 ONCA 993

DATE: 20191216

DOCKET: C65341

MacPherson, Sharpe and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neiman Jordan Diaz

Appellant

Neiman Jordan Diaz, acting in person

Matthew Gourlay, as duty counsel

Jessica Smith Joy, for the respondent

Heard: December 11, 2019

On appeal from the sentence imposed on April
    6, 2018 by Justice Kimberley Crosbie of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandons his conviction appeal.

[2]

On the sentence appeal, accepting, as we do, the
    sentencing judges identification of the appropriate range for sentence as
    being four to six years, we think that the imposition of a sentence at the
    absolute top of this range  namely, six years - is too harsh. There are
    several strong mitigating factors in the appellants favour, including a
    terrible sexual assault on him when he was a teenager and the eloquent
    description of his hardships by his parents. Importantly, although the
    appellant has a criminal record, his longest previous sentence was six months.
    In light of these factors, we are of the view that the actual sentence imposed
    within the range identified by the trial judge should have been, at most, about
    halfway in the range that she correctly identified.

[3]

The conviction appeal is dismissed as abandoned.
    The sentence appeal is allowed and the sentence is reduced to five years.

[4]

The $400 victim surcharge is set aside.


