DATE: 20031009
DOCKET: C39790

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. STEPHEN STEHLE (Applicant/Appellant)

BEFORE:

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

COUNSEL:

Joseph Di Luca for the appellant

Lisa D. Matthews for the respondent

HEARD & ENDORSED:

October 2, 2003

On appeal from the sentence imposed by Justice L.T. Montgomery dated February 3, 2003.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to cultivation of marihuana. There was a joint submission for 90 days imprisonment to be followed by a period of probation. The Crown described the cultivation operation as being in its infancy and as quite minor and unsophisticated.

[2] The trial judge rejected the joint submission and sentenced the appellant to 8 months imprisonment. In doing so, he overemphasized the seriousness of the drug involved. On appeal, Crown counsel fairly conceded that the joint submission was within the appropriate range for the offence and the offender.

[3] In these circumstances, we are of the view, that although the joint submission was on the lenient side, the trial judge erred in concluding that acceptance of that submission would bring the administration of justice into disrepute.

[4] Leave to appeal is granted, the appeal is allowed and the sentence is reduced to one of 90 days imprisonment to be followed by a term of probation of 12 months, the conditions of which are set out in a draft submitted by counsel. In all other respects, the sentence below is confirmed.