COURT OF APPEAL FOR ONTARIO

DATE: 20000405

DOCKET: C33480

RE: HER MAJESTY THE QUEEN (Respondent) v. ALLEN
MONCHKA (Applicant/Appellant)

BEFORE: LASKIN, MOLDAVER and MacPHERSON JJ.A.

COUNSEL: Paul Burstein
For the appellant

Ken Campbell
For the respondent

HEARD: March 29, 2000

On appeal from sentence by F.R. Caputo J. dated December 17, 1999

E N D O R S E M E N T

[1] The appellant appeals his sentence of 12 months for
aggravated assault. He asks that we convert the sentence into a
conditional sentence of 18 months on strict terms, and he does
not oppose a further 9 months probation. In our view, an 18
month conditional sentence followed by 9 months probation is
appropriate.

[2] Although this was a very serious offence, the appellant was
a young first offender with an unblemished background. The
material in the record establishes the following:

a) the offence was entirely out of character;

b) the appellant is a follower;

c) he was influenced to participate in this crime by a
negative peer group;

d) when he committed the offence he was, for the first time in
his life, extremely intoxicated; and

e) he was extremely remorseful for what he had done.

[3] The pre-sentence report was positive and shows that he does
not have a substance abuse problem and that he has strong family
supervision. Moreover, the trial judge found that he was not a
danger to the community. The trial judge recognized, correctly
in our view, that the principles of general deterrence and
denunciation were paramount. However, he did not have the
benefit of the Supreme Court of Canada’s recent conditional
sentencing decisions, which state that both these principles can
be achieved in some cases by a conditional sentences. We think
that this is one of those cases.

[4] We note that the appellant has already served over 3 months
in jail and the Crown fairly acknowledges that today both the
appellant’s and the public’s interests would be well served by a
conditional sentence.

[5] Accordingly, leave to appeal sentence is granted, the appeal
is allowed, and the sentence is converted to an 18-month
conditional sentence (to run from the date the sentence was
imposed), on the terms agreed to by counsel in the conditional
sentence order. There shall be a further term of 9 months
probation on the terms in the conditional sentence order save for
the curfew.

“J.I. Laskin J.A.”
“M.J. Moldaver J.A.”
“J.C. MacPherson J.A.”