DATE: 20021115

DOCKET: C37081

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. CHRISTOPHER DEKONING (Appellant)

BEFORE: DOHERTY, ROSENBERG and CRONK JJ.A.

COUNSEL: Keith E. Wright for the appellant Kim Crosbie for the respondent

HEARD: November 13, 2002

ORALLY

RELEASED: November 13, 2002

On appeal from the sentence imposed by Justice D. Austin on October 2, 2001.

E N D O R S E M E N T

[1] On the record before the trial judge, we are satisfied that a custodial sentence was appropriate.

[2] The trial judge’s reasons make it clear that the risk that the appellant would re-offend was an important factor in her determination that a conditional sentence was not appropriate. The trial judge said:

Specific deterrence is an important factor here. Mr. Dekoning poses a risk to the safety of children even with his involvement in counselling.

[3] Fresh evidence has been presented on the appeal. That fresh evidence in the form of two psychiatric reports presents cogent and uncontested evidence that the risk of re-offending is much less significant than thought by the trial judge. The evidence also indicates that the treatment and counselling provided to the appellant since his conviction is much more effective than the counselling the appellant underwent prior to his conviction.

[4] We are satisfied that the interests of justice require the admission of this cogent evidence. Considering that fresh evidence, we are satisfied that this is an appropriate case for a conditional sentence. The sentence will be varied to a conditional sentence of ten months. The terms are set out in para. 77 of the appellant’s factum with two modifications. The reference to church sponsored volunteer activities in para. (a)(iii) should be deleted, and the term listed beside the letter (c) should be deleted as well. The probation term will stand, however, the terms of the order will be as per para. 78 of the appellant’s factum except the reference to para. 77(c) will be deleted. Otherwise, the terms and length of the probation will be as per para. 78 of the appellant’s factum.

[5] We see no basis upon which to interfere with the weapons prohibition order by the trial judge in this case.

[6] The appellant shall be released from custody forthwith.

“Doherty J.A.”

“M. Rosenberg J.A.”

“E.A. Cronk J.A.”