



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gomes, 2015 ONCA 763

DATE: 20151109

DOCKET: C58366

Doherty, Laskin and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kyle Gomes

Appellant

Jason Rabinovitch, for the appellant

Brock Jones, for the respondent

Heard:  November 9, 2015

On appeal from the sentence imposed by Justice McMahon of
    the Superior Court of Justice on February 18, 2014.

APPEAL BOOK ENDORSEMENT

[1]

The trial judge appreciated that he should follow the joint submission
    unless he was satisfied that it was clearly not in the public interest to do
    so.  He advised counsel of his concerns and properly gave counsel an
    opportunity to address his concerns.

[2]

Counsel on appeal accepts that the trial judge set out the proper test
    to be applied in jumping a joint submission.  He argues, however, that the
    trial judge looked to inapplicable case law in concluding that the offence
    required the imposition of a custodial sentence.

[3]

We disagree.  The trial judge referred to cases from this court which
    have emphasized the need for denunciatory sentences when accused are found in
    possession, particularly in public, of deadly firearms.  This accused was in
    possession of a sawed off shotgun on a public street.

[4]

It is true that the cases referred to by the trial judge dealt with
    possession of loaded deadly firearms, an obviously aggravating feature absent
    in this case.  However, the principle remains applicable  possession of deadly
    prohibited firearms requires a denunciatory sentence.

[5]

In our view, it was reasonably open to the trial judge to conclude that
    the proposed sentence (a conditional sentence) was woefully inadequate and
    failed to reflect the required general deterrence.  We would defer to that
    assessment.

[6]

Crown counsel points out that the s. 109 prohibition order imposed at
    trial is incomplete.  It should be varied to clarify that the appellant is
    prohibited for life from possessing any prohibited firearm, restricted
    firearm, prohibited weapon, prohibited device or prohibited ammunition.

[7]

The appeal is allowed to vary the terms of the prohibition order. 
    Otherwise, the appeal is dismissed.


