DATE: 20001020

DOCKET: C34309

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant)

v. PAUL VALDEZ SCHWARZ (Respondent)

BEFORE: LASKIN and CHARRON JJ.A. and BLAIR J. ad hoc

COUNSEL: Trevor Shaw,

for the appellant

Jeffry A. House,

for the respondent

HEARD: October 19, 2000

On appeal from the sentence imposed by Mr. Bruce C. Hawkins on May 4, 2000

E N D O R S E M E N T

[1] The Crown appeals the 12-month sentence (in addition to 9 months pre-trial custody) imposed upon the respondent on five offences arising out of one incident involving the respondent’s estranged spouse and children. The Crown submits that the sentence was wholly inadequate given the seriousness of the offences. In further support of his position, Crown counsel states that it is noteworthy that the sentencing judge departed substantially from the lower end of the range of 42 months suggested by defence counsel. Had the trial judge agreed with defence’s suggestion, the sentence would have been 24 months in addition to the pre-trial custody. The Crown at trial was seeking a substantial penitentiary term of imprisonment. It is argued that while the trial judge was not bound by counsel’s suggestions, it was incumbent upon him to provide reasons for departing from the suggested range.

[1] We agree that the sentence was manifestly unfit. These offences involved a break‑in into the victim’s home during the night while armed with knives, death threats, an aggravated assault against the spouse in front of the children, an a further assault on one of the children who came to his mother’s defence. In our view, these offences clearly required a substantial penitentiary term of imprisonment. Consideration must also be given to the fact that the respondent was a 53-year-old first-time offender. Nonetheless, we are of the view that the sentence should have been one of five years which, allowing the same credit for the pre-trial custody given by the sentencing judge, results in a sentence of 3.5 years. The sentencing judge further erred in failing to impose the mandatory s.109 prohibition order.

[2] Leave to appeal is granted, the sentence is set aside and a term of 3.5 years (in addition to 9 months pre-trial custody) is substituted therefor together with a prohibition order under s.109 of the Criminal Code for a period of 10 years.

(signed) “John Laskin J.A.”

(signed) “Louise Charron J.A.”

(signed) “R. J. Blair RSJ (ad hoc)”