DATE: 20030310

DOCKET: C38786

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) –and– ANDREW BETTER (Respondent)

BEFORE: McMURTRY C.J.O., CATZMAN and DOHERTY JJ.A.

COUNSEL: Alexander Hrybinsky, for the applicant/appellant

Andrew Better, the respondent in person

HEARD: March 7, 2003

RELEASED ORALLY: March 7, 2003

On appeal from the sentence imposed by Justice Jean A. Forget of the Superior Court of Justice, sitting without a jury, dated August 15, 2002.

E N D O R S E M E N T

[1] While we have some concern whether the sentencing judge appropriately factored into the respondent’s sentence consideration of the seriousness of the offences and the protection of the community, we would not, at this point, substitute incarceration for the conditional sentence.

[2] We have come to this conclusion particularly having regard to the fact that the respondent’s personal circumstances have changed significantly and have been maintained since the date of the offence approximately three years ago, the fact that he has served seven months of his conditional sentence in compliance with the strict conditions imposed, the fact that he has fully discharged the community service provision of those conditions, and the fact that he now understands the need for, and has entered into, the recommended treatment program.

[3] Leave to appeal against sentence is granted, but the appeal is dismissed.

Signed: “R.R. McMurtry C.J.O.”

“M.A. Catzman J.A.”

“Doherty J.A.”