



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pelley, 2015 ONCA 267

DATE: 20150416

DOCKET: C59403

Simmons, Tulloch and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Curtis Pelley

Appellant

Krystal Manitius, for the appellant

J. Sandy Tse, for the respondent

Heard and released orally: April 7, 2015

On appeal from the sentence imposed on October 21, 2013 by
    Justice John R. McIsaac of the Superior Court of Justice.

ENDORSEMENT

[1]

The appellant seeks leave to appeal a total sentence of three years
    imprisonment imposed in relation to two counts of assault, two counts of
    mischief and two counts of breach of probation that were committed as part of
    one set of circumstances.

[2]

We agree that the appellants lengthy criminal record, the domestic
    context of these offences and the fact that the appellant was on probation for
    offences in relation to his domestic partner, who was one of the complainants,
    are factors that required a stiff sentence. However, the sentence proposed by
    defence counsel at trial, two years plus one day imprisonment, was a stiff
    sentence.

[3]

In our view, the sentencing judge erred by failing to refer to the
    mitigating factors that were present and factor them into the sentence he
    imposed.  In particular, the appellant pleaded guilty; he was taking steps towards
    rehabilitation while incarcerated; and he expressed some insight into his
    problems in his comments to the court.

[4]

In the circumstances, the sentencing judges failure to refer to these mitigating
    factors and his failure to articulate why a three year sentence was justified
    in the face of them was an error in principle.

[5]

Leave to appeal sentence is granted, the sentence of imprisonment imposed
    is set aside and a two year sentence of imprisonment is substituted.  All other
    terms and conditions of the original sentence remain the same, including the
    term that the sentences be served consecutive to any other sentence already
    being served.  We allocate the substituted sentence of imprisonment to specific
    offences as follows:

i)     the assault on Ms. Byford: one year imprisonment;

ii)    the
    assault on Mr. Santaw: six months imprisonment consecutive;

iii)    the
    two mischief counts: six months imprisonment on each count concurrent to each
    other and concurrent to the other sentences; and

iv)   the two breach
    of probation counts: six months imprisonment on each count, concurrent to each
    other but consecutive to the other counts.


Janet Simmons J.A.

M.
    Tulloch J.A.


Grant
    Huscroft J.A.


