DATE: 20061018

DOCKET: C44965

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant (Appellant) – and JACOB SILAS VALKENIER (Respondent)

BEFORE:

ROSENBERG, ARMSTRONG and BLAIR JJ.A.

COUNSEL:

Jeanette Gevikoglu

for the Crown appellant

Andreas Papadopoulos

for the respondent

HEARD & RELEASED ORALLY:

October 13, 2006

On appeal from sentence imposed by Justice J.D. Waugh of the Ontario Court of Justice dated January 27, 2006.

E N D O R S E M E N T

[1] The trial judge made several errors of law and principle:

(1) He imposed a conditional sentence concurrent to a jail sentence.

(2) He imposed a conditional sentence of two years when the maximum is two years less one-day, contrary to s. 742(1) of the Criminal Code.

(3) Taking into account the pre-trial custody, he in effect imposed a penitentiary sentence of forty-two months, contrary to the decision of the Supreme Court of Canada in R. v. Fice (2000), 2005 SCC 32, 196 C.C.C. (3d) 97.

(4) He gave no reasons for imposing a conditional sentence.

(5) A conditional sentence was manifestly inappropriate given the respondent’s record of other offences of violence and violating court orders and the serious nature of the offence which involved an unprovoked attack on the victim and his twelve year old brother.

[2] In our view, the total appropriate sentence would have been three years imprisonment.

[3] Given the pre-trial custody, the time served, and the time spent on the conditional sentence, the appropriate disposition at this time is an additional six months imprisonment.

[4] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence for assault causing bodily harm is varied to six months imprisonment to run from the date that the respondent surrenders into custody. The probation order will stand on the same terms as imposed by the trial judge.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“R. A. Blair J.A.”