DATE: 20031003

DOCKET: C39072

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– ALIREZA RABIEIFAR (Appellant)

BEFORE:

O’CONNOR A.C.J.O., CATZMAN and MOLDAVER JJ.A.

COUNSEL:

Heather R. Caron

for the appellant

Nadia Thomas

for the respondent

HEARD AND ENDORSED:

October 2, 2003

On appeal from the convictions entered by Justice G. Bourke Smith of the Superior Court of Justice, sitting without a jury, dated May 28, 2002.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant was convicted of assaulting his wife, causing her bodily harm, and with choking her with intent to enable him to commit the offence of assault causing bodily harm. We did not call upon the Crown with respect to the conviction for assault causing bodily harm, which was amply made out on the evidence. We would, however, set aside the conviction for choking. The record does not make out that the alleged choking was anything other than part and parcel of the appellant’s assault on his wife, and does not bear out the finding that the choking took place in order to enable the appellant to continue or facilitate his assaultive behaviour.

[2] For these reasons, we would set aside the appellant’s conviction on count 2 and enter an acquittal on that count. The appeal is otherwise dismissed.

[3] With respect to sentence, against which there is no appeal, we observe that the sentence of 3 months plus probation is a fit sentence of the offence for which the appellant’s conviction has been affirmed.