



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. D'Souza, 2015 ONCA 805

DATE: 20151123

DOCKET: C57869

MacPherson, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sherwin DSouza

Appellant

Mark Halfyard, for the appellant

Andrew Wiese, for the respondent

Heard and released orally: November 20, 2015

On appeal from the sentence imposed on October 8, 2013 by
    Justice S. Rebecca Shamai of the Ontario Court of Justice.

ENDORSEMENT

[1]

The appellant was convicted of trafficking marijuana. He placed an
    advertisement on the website Craigslist offering to sell half an ounce (14 to
    28 grams) of marijuana. An undercover officer responded to the ad, saying that
    he needed a quarter pound (110 grams approximately). The appellant agreed to
    sell this amount for $750. The appellant and the undercover officer met at the
    Scarborough Town Centre and the transaction took place. The appellant was
    arrested immediately thereafter.

[2]

The appellant pleaded guilty. The Crown proposed a conditional sentence
    of 120 days. The defence argued for a conditional discharge. The sentencing
    judge imposed a $750 fine, with six months to pay.

[3]

The appellant appeals the sentence. He contends that a youthful first
    offender with good prospects does not deserve a criminal record. He says that
    the sentencing judge erred in principle by interpreting the public interest too
    narrowly and by ruling that the nature of the offence, on its own, could not
    warrant a discharge.

[4]

We accept the appellants submission. The appellant has taken remarkable
    steps to change his way of life, including successful treatment for his
    addiction to marijuana, substantial volunteer work, part-time employment, and
    full-time university studies. The trial judge recognized the appellants
    progress, but seemed focussed heavily on general deterrence. In the
    circumstances of this case, we think there was room to recognize that a
    criminal record for this first time youthful offender was not necessary.

[5]

The appeal is allowed. The conviction and the $750 fine are set aside.
    We would impose a conditional discharge with the condition only that he keep
    the peace and be of good behaviour for one year.

J.C.
    MacPherson J.A.

M. Tulloch
    J.A.

G. Pardu J.A.


