



COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Oliveros-Callejas, 2017 ONCA 636

DATE: 20170802

DOCKET: C61629

Hoy A.C.J.O., Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mayk Oliveros-Callejas

Appellant

Vincenzo Rondinelli, for the appellant

Mayk Oliveros-Callejas, appearing in person

Michael Bernstein, for the respondent

Heard:  July 12, 2017

On appeal from the sentence imposed on January 7, 2016 by
    Justice Helen Rady, of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant seeks leave to appeal the sentence imposed by the trial
    judge, arguing that the trial judge erred in rejecting the joint submission on
    sentence of counsel.

[2]

We reject this argument.  In our view, there is no basis to interfere
    with the trial judges decision to jump the joint submission on sentence. 
    The trial judge did not err in the approach she followed or in the test she
    applied in rejecting the joint submission.

[3]

On the third day of trial, in the middle of the complainants
    cross-examination, the appellant plead guilty to attempted murder of the
    complainant, who was his spouse.  The Crown and defence agreed that a sentence
    of seven years was appropriate.

[4]

On the day originally reserved for sentencing, the trial judge advised
    counsel that she was troubled by the joint submission and invited them to make
    further submissions.

[5]

The appellant did not seek to withdraw his guilty plea when made aware
    of the trial judges concerns.

[6]

The Crown characterized the sentence as at the lower end of the range
    and explained that it had considered the admission of guilt, the fact that the
    complainant was content with the proposed sentence, and the fact that the
    appellant would be deported, which would provide peace of mind to the
    complainant.

[7]

The trial judge concluded that the joint submission was contrary to the
    public interest and it would bring the administration of justice into
    disrepute.  She rejected the joint submission and imposed a sentence of 10
    years incarceration.

[8]

The trial judge recognized and endorsed why a joint submission is a
    valuable and important part of the criminal justice process and that there is a
    high threshold for rejecting a joint submission.

[9]

She provided clear and cogent reasons for departing from the joint
    submission.  She noted that the joint submission was in fact below the
    appropriate range identified by this court for attempted murder in a domestic
    context and identified seriously aggravating factors:  the appellant had a
    prior record for assaulting the complainant and was bound by the terms of a
    non-association order at the time of the offence; and the attack was
    particularly horrific and the complainant was lucky to have survived.

[10]

While
    the trial judge did not employ the wording in the subsequently decided
R.
    v. Anthony-Cook
, [2016] 2 S.C.R. 204, the joint submission was so unhinged
    from the circumstances of the offence and the offender that its acceptance
    would lead reasonable and informed persons, aware of all the relevant
    circumstances, including the importance of promoting certainty in resolution
    discussions, to believe that the proper functioning of the justice system had
    broken down.

[11]

Accordingly,
    while leave to appeal sentence is granted, the appeal is dismissed.


