DATE: 20030827

DOCKET: C38497

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and –

UMAR AKBAR (Respondent)

BEFORE:

CARTHY, MacPHERSON AND SIMMONS JJ.A.

COUNSEL:

Randy Schwartz

for the appellant

Timothy E. Breen

for the respondent

HEARD & ENDORSED:

August 25, 2003

On appeal from the sentence imposed by Justice Gerald Day of the Superior Court of Justice dated June 6, 2002.

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

[1] The Crown appeals against an 18 month conditional sentence imposed following a conviction for sexual assault.

[2] The offence involved attempt at intercourse on a developmentally handicapped woman. The trial judge concluded that a conditional sentence was appropriate based on a finding that the accused did not represent a danger to the public. However, he gave no reasons for this conclusion. Given the circumstances of the offence and lengthy criminal record of the respondent we find this conclusion unreasonable. Accordingly, it was not open to the trial judge to impose a conditional sentence in the circumstances. Given that there was no delay by the Crown in proceeding with this appeal and that the respondent has not taken steps to pursue his rehabilitation while on conditional sentence, it is not contrary to the interests of justice to impose a sentence of incarceration at this time. We would not interfere with the original starting point of the trial judge in the circumstances. Accordingly, leave to appeal is granted and the sentence is varied to 3 1/2 months incarceration from the date of surrender. A section 109 Criminal Code weapons prohibition for ten years is imposed as the trial judge failed to address his mind to the fact that this was an offence involving violence.