



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Micallef, 2014 ONCA 117

DATE: 20140212

DOCKET: C57702

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Adam Micallef

Appellant

Breana Vandebeek, for the appellant

Avene Derwa, for the respondent

Heard and released orally:  February 10, 2014

On appeal from the sentence imposed by Justice Khoorshed
    of the Ontario Court of Justice, dated July 23, 2013.

ENDORSEMENT

[1]

The trial judge was properly concerned about the quantum of sentence
    put forward on the joint submission.  He ultimately declined to follow the
    joint submission and imposed a sentence of one year.  He did so in part because
    he regarded the offences to which the appellant had pled guilty (break and
    enter of a residence, possession of stolen property) as crimes of violence. 
    This was, with respect, a mischaracterization of the offences.  That
    mischaracterization constitutes an error in principle that calls for this
    courts reassessment of the sentence.

[2]

The sentence agreed to in the joint submission, four months, was no
    doubt a very lenient one.  Although the record is not as detailed as one would
    hope, it would appear that the joint submission was based on an acceptance of
    the appellants rehabilitative potential.  Apart from a brief period of time
    during which the appellant suffered significant financial difficulties, it
    would appear that he has led a productive law-abiding life.

[3]

We have considered the fresh evidence offered in the appellants
    affidavit.  It would appear that the rehabilitative potential is being
    realized.  We see no value in re-incarceration and are concerned that it may
    negatively impact on the appellants continued rehabilitation.  Consequently,
    and despite the leniency of the sentence proposed in the joint submission, we
    are prepared to accede to that joint submission at this point.

[4]

The appeal will be allowed and the sentence is varied to time served,
    the equivalent of four months.

Doherty
    J.A.

S.T.
    Goudge J.A.

C.W.
    Hourigan J.A.


