



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Superales, 2019 ONCA 792

DATE: 20191003

DOCKET: C66124

Juriansz, Benotto and Miller
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Aljome Superales

Respondent

Michael Perlin, for the appellant

Jenny Prosser, for the respondent

Heard and released orally:
    September 27, 2019

On appeal from the conviction entered by
    Justice David Aston of the Superior Court of Justice on March 8, 2018 and the
    sentence imposed on October 25, 2018.

REASONS FOR DECISION

[1]

We are of the view that the trial judge imposed
    a sentence that is demonstrably unfit by failing to recognize that denunciation
    and general deterrence are the paramount sentencing objectives for the offence
    and by concluding the minimum sentence required under s. 85(3)(a) was grossly
    disproportionate punishment for the offence. His declaration that s. 85(3)(a)
    is invalid is set aside.

[2]

It falls to us to determine a fit sentence. The
    circumstances of this case are similar to those in
R v. Clarke
,

2014
    ONCA 296. In
Clarke
this court upheld a global sentence of two years
    less a day. Noting that the offender in
Clarke
made greater use of the
    imitation firearm than did the respondent, we substitute a sentence of
    18-months imprisonment, for the five-month sentence imposed by the sentencing
    judge. The 18-month sentence will be reduced by five months to account for the
    credit granted by the sentencing judge to account for the respondents
    pre-trial bail conditions, and by an additional 38 days as credit for 25 days
    the respondent spent in pre-sentence custody. The resulting effective sentence
    of imprisonment is 13 months less 38 days. The correctional authorities, when
    calculating the respondents sentence, release, and parole eligibility, should
    account for the 113 days that we understand the respondent has already served
    to satisfy the sentence imposed by the sentencing judge. The probation order
    imposed by the sentencing judge remains unchanged. The victim surcharge is set
    aside pursuant to

R. v. Boudreault
, 2018 SCC 58.

R.G. Juriansz J.A.

M.L. Benotto J.A.

B.W. Miller J.A.


