





CITATION:
R. v. Levere, 2011 ONCA 576



DATE: 20110907



DOCKET: C53105



COURT OF APPEAL FOR ONTARIO



Gillese, Armstrong and Karakatsanis JJ.A.



BETWEEN



Her Majesty the Queen



Applicant (Appellant)



and



Garry Levere



Respondent



Holly Loubert, for the appellant



Brennagh Smith, for the respondent



Heard and released orally:
August 25, 2011



On appeal from the sentence imposed by Justice Renaud of the
          Ontario Court of Justice, on November 22, 2010.



ENDORSEMENT



[1]

Mr. Levere pleaded guilty to one charge of arson in respect of his own
    property.  He was given a 12 month conditional sentence, with strict
    conditions, followed by 24 months of probation.

[2]

The Crown appeals the sentence on two grounds.  First, it contends that
    the sentencing judge erred in failing to designate the offence as a serious
    personal injury offence (SPIO) pursuant to ss. 742.1 and 752 of the
Criminal
    Code
.  Once it is so designated, the conditional sentence is illegal. 
    Second, and in any event, the Crown argues that the sentence is demonstrably
    unfit because it is disproportionate to the gravity of the offence and the
    degree of responsibility of the offender.  The Crown asks that a period of
    actual imprisonment be imposed for the time remaining to be served on the
    sentence (88 days).

The SPIO

[3]

The Crown did not advance the argument below that the offence amounted
    to a circumstantial SPIO and, therefore, that a conditional sentence was not
    available.  We decline to entertain this argument for the first time on
    appeal.

[4]

The determination of whether an offence is a circumstantial SPIO is one
    for the trial judge to make, with the benefit of the relevant evidence and
    legal submissions.  It would be unfair and prejudicial to permit the Crown to
    raise it at this stage of the proceedings.

Fitness of sentence

[5]

As for the fitness of sentence, we see no basis on which to interfere
    with the sentence that has been imposed.  The sentencing judge considered the
    appropriate sentencing principles and satisfied himself that the sentence struck
    the appropriate balance between the goals of the denunciation, deterrence and
    rehabilitation.  He noted that the offence was out of character for the
    respondent, and that it was committed at a time when the appellant was
    suffering from mental health challenges involving depression, being suicidal
    and not thinking clearly.  The sentencing judge also noted that the respondent
    was a mature first time offender (he was 49 years of age at the time of the
    offence), and that he had no prior record of wrong doing.  In addition, the
    respondent had a long and good employment record.  He noted as well that the fire
    was minor and the only damage suffered as a result of the offence was to the
    respondents own property.

[6]

The sentencing judge recognized the seriousness of the offence but
    concluded that when the gravity of the offence was balanced against the
    respondents attenuated moral blameworthiness, a fit sentence was one of
    incarceration to be served within the community.

[7]

The post-sentence evidence demonstrates that the respondent has used the
    period of the conditional sentence to put his life in order and address the
    personal issues that led him to commit the offence.

[8]

Accordingly, while leave to appeal sentence is granted, we dismiss the
    appeal.

E.E. Gillese
    J.A.

Robert P.
    Armstrong J.A.

Karakatsanis
    J.A.


