COURT OF APPEAL FOR ONTARIO

DATE: 20000124

DOCKET: C31684

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.”