R. v. Wobbes (Z.), (2008) 242 O.A.C. 7 (CA)

• Judge: MacFarland, Rouleau and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 19, 2008
• Jurisdiction: Ontario
• Citations: (2008), 242 O.A.C. 7 (CA);2008 ONCA 567

R. v. Wobbes (Z.) (2008), 242 O.A.C. 7 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JL.061

Her Majesty the Queen (respondent) v. Zachary Wobbes (appellant)

(C45728; 2008 ONCA 567)

Indexed As: R. v. Wobbes (Z.)

Ontario Court of Appeal

MacFarland, Rouleau and Epstein, JJ.A.

July 29, 2008.

Summary:

The Ontario Superior Court convicted the male accused as a party to the offence of sexual assault (of a female) with a weapon (a bottle). The court sentenced the accused to 26 months in jail, which was reduced to a reformatory term of two years less a day because of pre-trial custody. The accused appealed against the conviction and, with leave, appealed against the sentence.

The Ontario Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 4684

Procedure - Judgments and reasons for judgment - Reasons for judgment - Sufficiency of - The trial judge convicted the male accused as a party to the offence of sexual assault (of a female) with a weapon (a bottle) - The intoxicated accused kissed and fondled the victim, while two other young men, young offenders, penetrated her vagina - The accused appealed, arguing that the trial judge erred in law in failing to discuss the defence of intoxication - In his reasons, the trial judge indicated that the accused "continued his groping in concert with the other two perpetrators to help them continue with their assault with bottles and eventually clippers. His position, activities and common banter amongst the boys in the room, in my view, can lead to no other conclusion" - The trial judge then referred to R. v. Fraser (B.C.C.A. 1984), which discussed the availability of the defence of drunkenness in a context of party to robbery - The Ontario Court of Appeal dismissed the appeal - The trial judge had not overlooked the intoxication defence and it was open to him to reject it - The accused knew why he was convicted - See paragraphs 28 to 54.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - The trial judge convicted the male accused as a party to the offence of sexual assault (of a female) with a weapon (a bottle) - The other perpetrators were young offenders who pleaded guilty - The other perpetrators each received a non-custodial sentence of 18 months - The trial judge sentenced the accused, aged 19 years at offence time, to 26 months in jail, which was reduced to a reformatory term of two years less a day because of pre-trial custody - On appeal, the now 23 year-old accused invoked sentence parity and the application of proper sentencing principles and asked for a conditional sentence - The Ontario Court of Appeal dismissed the appeal where the sentencing regimes for the accused and the other perpetrators were different, the other perpetrators had pleaded guilty, hence mitigation, and the sentence imposed at trial on the accused was within the range for similar offences and revealed no error in principle - See paragraphs 66 to 76.

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5806 ].

Cases Noticed:

R. v. Barr (1975), 23 C.C.C. (2d) 116 (Ont. C.A.), refd to. [para. 29].

R. v. Palombi (K.) (2007), 225 O.A.C. 264; 222 C.C.C.(3d) 528 (Ont. C.A.), refd to. [para. 29].

R. v. Dunlop and Sylvester, [1979] 2 S.C.R. 881; 27 N.R. 153; 47 C.C.C.(2d) 93, refd to. [para. 29].

R. v. Fraser (1984), 13 C.C.C.(3d) 292 (B.C.C.A.), refd to. [para. 30].

R. v. Cinous (J.) (2002), 285 N.R. 1; 162 C.C.C.(3d) 129; 2002 SCC 29, refd to. [para. 31].

R. v. W.J.D. (2007), 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 32].

R. v. Murray (E.E.) (1994), 73 O.A.C. 321; 93 C.C.C.(3d) 70 (C.A.), refd to. [para. 39].

R. v. Wu (1934), 62 C.C.C. 90 (S.C.C.), refd to. [para. 40].

R. v. Davis (G.N.) (1999), 248 N.R. 44; 182 Nfld. & P.E.I.R. 78; 554 A.P.R. 78; 139 C.C.C.(3d) 193 (S.C.C.), consd. [para. 44].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 162 C.C.C.(3d) 298; 2002 SCC 26, consd. [para. 46].

R. v. Braich (A.) et al. (2002), 285 N.R. 162; 164 B.C.A.C. 1; 268 W.A.C. 1; 162 C.C.C.(3d) 324 (S.C.C.), refd to. [para. 46].

R. v. J.J.R.D. (2006), 218 O.A.C. 37; 215 C.C.C.(3d) 252 (C.A.), refd to. [para. 47].

Counsel:

Mark Halfyard, for the appellant;

Joanne Stuart, for the respondent.

This appeal against conviction and sentence was heard on March 19, 2008, by MacFarland, Rouleau and Epstein, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Epstein, J.A., and released on July 29, 2008.