





CITATION:
R. v. Sanko, 2011 ONCA 804



DATE: 20111216



DOCKET: C54241



COURT OF APPEAL FOR ONTARIO



Feldman and Armstrong JJ.A. and Himel J. (
ad hoc
)



BETWEEN



Her Majesty The Queen



Respondent (Appellant)



and



Daniel Sanko



Appellant (Respondent)



Scott Latimer, for the appellant



Danielle Robitaille, duty counsel for the respondent

Daniel Sanko, in person



Heard and released orally: December 8, 2011



On appeal by the appellant from conviction and on appeal by
          the Crown from sentence imposed by Justice William R. Wolski of the Ontario
          Court of Justice, dated August 10, 2011.



ENDORSEMENT



[1]

The appellant was convicted of break and enter a dwelling and possession
    of property obtained by crime, namely a watch. He appeals his conviction for
    break and enter only, and the Crown appeals the sentence of 12 months
    incarceration.

[2]

The break-in occurred at the basement apartment of a Jesuit brother
    living in a Jesuit residence on Isabella Street in Toronto. The resident came
    home on the morning of October 4, 2010 and found two people rummaging through
    his dresser. They immediately left pushing past him. They took a silver watch
    and approximately $70. The next day, on October 5, Mr. Sanko was found nearby
    with a similar watch.

[3]

The appellant says that the trial judge erred by relying on the doctrine
    of recent possession of the watch when he did not reject the evidence of the
    complainant regarding the description of the intruders which was arguably
    inconsistent in some respects with the appellant.

[4]

In our view, the trial judge did not make the submitted error. The
    complainants evidence of the description of the intruders was vague. The trial
    judge neither accepted nor rejected it. Although he did not say so explicitly,
    reading the reasons as a whole, it is clear that he gave no weight to the
    descriptions such as they were. He was therefore entitled to rely on the
    doctrine of recent possession once he concluded that the watch found on the
    appellant was the stolen watch.

[5]

We would therefore dismiss the conviction appeal.

[6]

The Crown seeks leave to appeal the sentence on the basis that it was
    outside the range for home invasion type offences and that the trial judge
    failed to consider psychological harm to the victim in the circumstances.

[7]

We see no error in the approach taken by the trial judge. He was fully
    alive to all of the circumstances of the offence and of the offender, a
    38-year-old homeless man with an unfortunate record for this type of offence.
    No victim impact statement was filed nor did the trial Crown make any submissions
    regarding psychological harm.

[8]

Leave to appeal sentence is granted but the appeal is dismissed.

Signed:           K. Feldman
    J.A.

Robert
    P. Armstrong J.A.

S.
    Himel J.


