COURT OF APPEAL FOR ONTARIO

DATE: 20030710
DOCKET: C39588

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) v. RONALD MONTGOMERY (Respondent)

BEFORE: O'CONNOR A.C.J.O., WEILER and ABELLA JJ.A.

COUNSEL: Joan Barrett for the appellant No one appearing for the respondent

HEARD & ENDORSED: July 4, 2003

On appeal from the sentence imposed by Justice H.K. Atwood on January 30, 2003.

APPEAL BOOK ENDORSEMENT

[1] The respondent did not appear although properly served with the notice of appeal, the materials relied upon by the Crown in support of the appeal and the notice of hearing for today's date. The court waited until 11:50 a.m. before proceeding.

[2] The Crown appeals an eleven month conditional sentence and one year probation order imposed upon the respondent following his pleas of guilty to charges of robbery and break and enter committed in relation to a home invasion. In addition, the respondent plead guilty to uttering a death threat and theft under with respect to two other separate incidents.

[3] In our view, the sentence is demonstrably unfit. Given the seriousness of the offences, the extent of the respondent's criminal record and the fact that the home invasion occurred while the respondent was on two release orders and subject to two probation orders we consider that a medium to long reformatory term is warranted. Taking into account the pre-trial custody and the five months served under the conditional sentence, we are of the view that a further period of imprisonment of 8 months is appropriate.

[4] Accordingly, the appeal is allowed and the sentence is varied in accordance with these reasons. The period of probation is maintained.

[5] Warrants for the arrest and committal of the respondent will issue.