DATE: 20061108

DOCKET: C45153

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – ANGEL FERGUS (Appellant)

BEFORE:

O’CONNOR A.C.J.O., ROSENBERG and CRONK JJ.A.

COUNSEL:

James Foord

for the appellant

Amy Alyea

for the respondent

HEARD & RELEASED ORALLY:

November 3, 2006

On appeal from sentence imposed by Justice Richard Lajoie of the Ontario Court of Justice dated March 24, 2006.

E N D O R S E M E N T

[1] The appellant was sentenced to three months jail and three years probation for assault, break and enter, breach of recognizance, breach of probation and uttering forged documents.

[2] The appellant has an extremely traumatic background. She has been the repeated victim of serious violence that has led to profound mental health problems. These mental health problems underlie the commission of most of these offences. The appellant was, however, making significant progress because of the recent intervention of psychiatric help.

[3] In our view, the trial judge misapprehended the evidence in that respect and also overstated the likelihood that the appellant would use drugs while on a conditional sentence. The uncontradicted evidence of her psychiatrist indicates that a custodial sentence would be particularly difficult for this appellant. The appellant’s progress has continued while she was been on bail pending appeal for seven months with conditions akin to house arrest. Given the trial judge’s misapprehension of the evidence, it is open to this court to intervene.

[4] Accordingly the appeal is allowed and the custodial sentence is reduced to time served [thirteen days]. The probation order imposed by the trial judge will stand.

Signed: “Dennis O’Connor A.C.J.O.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”