DATE: 20060801

DOCKET: C45234

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – DANIEL STATES (Appellant)

BEFORE:

SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

Paul Calarco

for the appellant

Eliott Behar

for the Crown respondent

HEARD & RELEASED ORALLY:

July 26, 2006

On appeal from the sentence imposed by Justice Frederic M. Campling of the Ontario Court of Justice on December 20, 2005.

E N D O R S E M E N T

[1] Following a trial, the appellant was acquitted on two counts of aggravated assault against his wife and convicted of two counts of common assault. A fifth charge of failing to comply with a probation order was withdrawn.

[2] After granting the appellant thirteen months credit for pre-sentence custody, the trial judge sentenced the appellant to six months imprisonment on each count of assault to be served consecutively plus three years probation. As of today’s date the appellant has served approximately seven months of the sentences of imprisonment that were imposed.

[3] The conduct underlying the offences of which the appellant was convicted consisted essentially of a kick and a slap. While the appellant has a lengthy criminal record for similar and other offences, and while these offences were committed in the context of an ongoing pattern of domestic assault, in our view, even viewed in the foregoing context, the effective penitentiary sentence that was imposed was disproportionate to the offences.

[4] The Crown at trial did not request a probationary term requiring that, except with the permission of a child protection agency with jurisdiction the appellant not be in his wife’s home if a child 16 or under is living there. In light of this factor and the circumstances of these offences, in our view, the imposition of that probationary term was unreasonable.

[5] In light of the foregoing findings, it is unnecessary that we consider the appellant’s remaining grounds of appeal. Leave to appeal sentence is granted and the appeal is allowed. The sentences of imprisonment are reduced to time served and the probationary term referred to above is struck out. The probation order imposed shall in all other respects remain in full force and effect.

"Simmons J.A."

"Robert P. Armstrong J.A."

"Paul Rouleau J.A."