



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Monether, 2013
    ONCA 197

DATE: 20130402

DOCKET: C56504

MacPherson, Blair and Juriansz JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Travis Leslie Monether

Appellant

Heather Pringle, for the appellant

Randy Schwartz, for the respondent

Heard: March 27, 2013

On appeal from the conviction entered on November 3, 2009
    and the sentence imposed on November 3, 2009 by Justice John D. G. Waugh of the
    Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant pleaded guilty and was convicted of the offences of
    robbery with a firearm contrary to s. 344(a) of the
Criminal Code
and
    use of a firearm during the commission of an offence contrary to s. 85(1) of
    the
Code
.  On a joint submission, he was sentenced to eight years
    imprisonment concurrent for both offences.

[2]

The appellant contends that the conviction for the s. 85(1)(a) offence
    was statute barred by its wording which specifically excludes from its coverage
    a s. 344 offence. The Crown agrees with this submission. So do we. The
    conviction for the s. 85(1)(a) offence is set aside and an acquittal is
    entered.

[3]

The appellant submits that an eight year concurrent sentence for the
    s. 85(1)(a) offence was an illegal sentence because s. 85(3)(a) and (4) of
    the
Code
require a minimum sentence of one year to be served
    consecutively to any punishment imposed for other offences arising out of the
    same event.  We agree.

[4]

However, that leaves a valid conviction for robbery with a firearm and
    an eight year sentence for that offence based on a joint submission.  We agree
    with the Crown. We see no basis for interfering with the joint submission. The
    fresh evidence, although impressive in relation to the appellants progress in
    the prison, does not change this conclusion. Accordingly, the sentence appeal
    is dismissed.

J.C. MacPherson J.A.

R.A. Blair J.A.

R.G. Juriansz J.A.


