



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sullivan, 2019 ONCA 412

DATE: 20190517

DOCKET: C64566

Doherty, Benotto and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

David Sullivan

Appellant

Stephanie DiGiuseppe, for the appellant

Joan Barrett, for the respondent

Heard: May 16, 2019

On appeal from the sentence
    imposed by Justice David Salmers of the Superior Court of Justice on February
    22, 2017.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge determined that a five-year sentence was appropriate in
    all of the circumstances. Having regard to credit for presentence custody (1,226
    days), the trial judge then imposed a sentence of 599 days, to be followed by
    three years probation.

[2]

The offence was very serious and the appellants mental condition makes
    him a significant risk. We see no error in the imposition of a five-year
    custodial sentence.

[3]

The parties agree that the appellant was entitled to an additional 41
    days credit for presentence custody. This reduces the sentence to 558 days (599
     41). The appellant has fully served that sentence. Consequently, the
    custodial portion of the sentence is varied to time served (558 days).

[4]

The appellant also argues that the probation term should be varied from
    three years to one year and that he should be credited for that one year
    based on his release on bail pending appeal about 14 months ago on terms which
    he says are similar to the probation.

[5]

The Crown tendered fresh evidence on appeal. The appellant did not
    object to its admission. That evidence demonstrates that the appellant has
    apparently breached the terms of his bail release on several occasions. We note
    those terms were not onerous.

[6]

The probation order, which included treatment and counselling terms, was
    an appropriate part of the sentence. In fact, it was essential to the
    protection of the public. Nothing that has happened since the appellant was
    released on bail pending appeal offers any support for the conclusion that the
    probation order is any less necessary than it was when it was imposed.

[7]

The appeal is allowed to the extent of varying the custodial term to
    time served. The parties also agree that the victim surcharge should be
    deleted. Otherwise the sentence remains as imposed.


