



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shute, 2018 ONCA 805

DATE: 20181004

DOCKET: C65811

Sharpe, Lauwers and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Darin Shute

Appellant

Scott C. Hutchison and Karen Heath, for the appellant

Nicole Rivers, for the respondent

Heard and released orally: October 4, 2018

On appeal from the sentence imposed by Justice William R. Wolski
    of the Ontario Court of Justice on July 26, 2018.

REASONS FOR DECISION

[1]

Following extended sentencing discussions, the
    appellant pleaded guilty to aggravated assault and breach of probation. Counsel
    agreed that the appellants pretrial custody should be credited on a 1.5 to 1
    basis and subtracted from any sentence imposed.

[2]

Counsel further agreed that the Crown would seek
    a sentence of 18 to 24 months less pretrial custody, and that the appellant
    would ask for sentence of 15 months less pretrial custody.

[3]

During the sentencing discussions, the Crown did
    not advert to pretrial custody and the appellants counsel inadvertently asked
    for sentence of 15 months in addition to pretrial custody, an equivalent of
    over 28 months.

[4]

The Crown agrees that the fresh evidence
    relating to the plea discussion and submissions should be admitted, that leave
    to appeal sentence should be granted and that the sentence appeal should be
    allowed. The issue is what sentence ought this court to impose. The Crown
    maintains its position that a sentence in the range of 18 to 24 months would be
    appropriate. The appellant acknowledges that this range is appropriate and
    asked for a sentence at the low end of the range of 18 months. The appellant
    has served 276 days of pretrial custody to be credited as 414 days.

[5]

The appellant stabbed the victim with a broken
    box cutter following an earlier altercation between the two men. The appellant
    does have an extensive criminal record, including several convictions for
    offences of violence, albeit less serious than the present offence.

[6]

Taking into account the guilty plea and the fact
    that the sentencing judge found that the appellants prospects for
    rehabilitation were good, it is our view that a sentence at the low end of the
    range suggested by the Crown would be appropriate, namely, 18 months less credit
    for time served in pretrial custody.

[7]

Accordingly, we substitute a sentence of four
    months from the date of sentencing, July 26, 2018 for the 15 months imposed by
    the sentencing judge. We impose the same two year probation term as imposed by
    the sentencing judge and we maintain the probation order.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

K.
    van Rensburg J.A.


