





CITATION:
R. v. Yeck, 2011 ONCA 768



DATE: 20111206



DOCKET: C53539



COURT OF APPEAL FOR ONTARIO



Feldman, Sharpe and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Alexander Yeck



Applicant/Appellant



Robert C. Sheppard, for the applicant/appellant



Nadia Thomas, for the respondent



Heard and released orally:
November 24, 2011



On appeal from the sentence imposed
          by Justice W. Rabley of the Ontario Court of Justice on January 18, 2011.



ENDORSEMENT



[1]

The appellant appeals his sentence of 30 months imposed after being
    convicted of assault.

[2]

The trial judge commenced his reasons for sentence by identifying the particular
    challenges involved in this sentencing decision.  We quote from page 18 of the
    transcript:

It was a tough situation for a judge to be sending
    a 23 year old young man to the penitentiary.  I have no choice but to do that
    given the circumstances.  I say that because the circumstances of this offence
    are probably the most egregious that I have ever heard throughout my legal career
    for common assault.

[3]

As noted by the trial judge, there were serious aggravating factors. 
    The assault was horrendous.  It involved pushing the victim (a much smaller
    man), choking him to the point that he lost consciousness and throwing him
    around the room like a rag doll.  The appellant left his victim unconscious and
    foaming at the mouth.  Furthermore, the appellant has a record of 33 previous
    convictions, many of which are for the crimes involving assault.

[4]

Counsel for the appellant submits that the trial judge erred in
    principle in two ways.

[5]

First, he submits that the trial judge failed appropriately to factor
    the jump principle into his analysis of a fit sentence.

[6]

We disagree.  While the sentence is more severe than sentences
    previously imposed upon the appellant, the trial judge quite properly did not
    allow it to diminish the seriousness of the offence or the concern for the
    protection of the public.

[7]

With respect to rehabilitation, the trial judge did not, as we see it,
    write off the appellant as a candidate for rehabilitation.  Several times in
    his reasons he recognized the appellants youth and in his concluding remarks, specifically
    encouraged him to address his difficulties.

[8]

Finally, with respect to the issue of rehabilitation raised by the appellant,
    we note that he has numerous convictions for previous breaches of probation. 
    Therefore the submission that a shorter sentence be imposed with a significant
    probationary period must be rejected.

[9]

In conclusion, this court must yield to the trial judges determination
    as to the appropriate sentence absent an error in principle or a manifestly
    unreasonable decision.  We see neither.

[10]

The appeal is therefore dismissed.

K. Feldman J.A.

Robert Sharpe J.A.

G.J. Epstein J.A.


