COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– ADAM KAUP (Appellant)
BEFORE: FINLAYSON, WEILER and SHARPE JJ.A.
COUNSEL: Craig Parry, for the appellant Jennifer Woollcombe, for the respondent
HEARD: January 12, 2000
On appeal from the sentence imposed by Downie J., dated March 1, 1999.
E N D O R S E M E N T
[1] The youthful appellant, who was only 18.5 years old at the time of the offence, has no criminal record. He has lived a non- violent, productive life and has lived at home with a stable and supportive family. He pleaded guilty to the offence and his post- apprehension conduct indicated significant remorse.
[2] The trial judge placed great emphasis on the conduct of the appellant’s co-perpetrator, one Shane, who has not been apprehended. The appellant refused to assist the police by helping to identify him because he feared that he would suffer reprisals in the correctional system if he did so. The trial judge treated this as an aggravating factor in some of his comments during the course of the hearing and in his reasons for sentence. In doing so, he seemed to equate Shane’s violent tendencies with the appellant. Specifically, in addressing the issue of whether a conditional sentence was appropriate, he engaged in speculation that the appellant might be approached by Shane if he was released and be brought back under his criminal influence. In our view, these remarks demonstrated an error in principle.
[3] No issue is taken on the appeal with the term of the sentence, which is nine months in custody followed by two years of probation. The only issue is whether it would be appropriate that the custodial term of the sentence be served in the community. In our view, having regard to all the circumstances, we think that it should. In Appendix A to the appellant’s factum is a list of the terms that, in our view, are satisfactory. These contain a reference to his serving 150 hours of community service. We are advised that he has been providing this service during his release pending his appeal and he is entitled to credit for any service that he has performed. We also note that he is to remain in his parents’ residence under strict terms of curfew. The conditional sentence is to be served from today’s date.
[4] Accordingly, leave to appeal is granted and the appeal is allowed to give effect to these reasons.
(Signed) “G. D. Finlayson J.A.” (Signed) “K. M. Weiler J.A.” (Signed) “Robert Sharpe J.A.”