R. v. MacFarlane (G.),

• Jurisdiction: Ontario
• Judge: Dambrot,Feldman,Watt
• Neutral Citation: 2012 ONCA 82
• Citation: 2012 ONCA 82,(2012), 288 O.A.C. 114 (CA),288 OAC 114,(2012), 288 OAC 114 (CA),288 O.A.C. 114
• Date: 23 January 2012
• Court: Court of Appeal (Ontario)

R. v. MacFarlane (G.) (2012), 288 O.A.C. 114 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. FE.014

Her Majesty the Queen (respondent) v. Gary MacFarlane (appellant)

(C54032; 2012 ONCA 82)

Indexed As: R. v. MacFarlane (G.)

Ontario Court of Appeal

Feldman and Watt, JJ.A. and Dambrot, J.(ad hoc)

January 23, 2012.

Summary:

The accused pleaded guilty to manslaughter. He was sentenced to two years less one day, followed by two years' probation. The accused sought leave to appeal sentence, and if leave was granted, appealed.

The Ontario Court of Appeal granted leave to appeal and dismissed the appeal.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused pleaded guilty to manslaughter - After being released from custody earlier in the day, and while on probation for a number of criminal offences, the 21 year old accused attended a house party and consumed alcohol - After leaving the party with his friend Pepping, the accused encountered the deceased who was with a person on a bicycle - The accused recognized the person on the bicycle as someone who had stolen a bicycle from him in the past - The accused and Pepping chased the bicyclist who escaped - The accused and Pepping then turned on the deceased, and beat him with their fists - Ultimately, Pepping stabbed the deceased in the heart causing his death - The accused knew that Pepping was carrying a knife - They later returned to the party - First violent crime - 599 days' pre-sentence custody - The accused was sentenced to two years less one day, followed by two years' probation - The Ontario Court of Appeal granted the accused leave to appeal - He had been charged before the Truth in Sentencing Act came into force - The trial judge should have granted him two for one credit for pre-trial custody - On his return to jail after entering his guilty plea, he was housed in a cell with Pepping, where he was assaulted by, or at the direction of Pepping eight different times before being placed in segregation for his safety - The court dismissed the appeal where the sentence was fit.

Criminal Law - Topic 5882

Sentence - Manslaughter - [See Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 6211

Sentencing - Appeals - Variation of sentence - Application for leave to appeal - Grounds - [See Criminal Law - Topic 5848.2 ].

Cases Noticed:

R. v. Francis (G.) (2006), 210 O.A.C. 41; 207 C.C.C.(3d) 536 (C.A.), refd to. [para. 7].

R. v. Lang-Watt - see R. v. M.L.

R. v. M.L. (2007), 228 O.A.C. 394; 2007 ONCA 642, refd to. [para. 7].

R. v. Situ (P.) et al., [2010] O.A.C. Uned. 544; 2010 ONCA 683, refd to. [para. 7].

Counsel:

Richard Litkowski, for the appellant;

Catherine Mullaly, for the respondent.

This application for leave to appeal and appeal were heard by Feldman and Watt, JJ.A., and Dambrot, J.(ad hoc), of the Ontario Court of Appeal, on January 23, 2012. The court delivered the following oral decision on the same date.