DATE: 20040209

DOCKET: C41023

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – ANTONIO COPPOLA (Appellant)

BEFORE: WEILER, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Gregory Lafontaine

for the appellant

Stacey D. Young

for the respondent

HEARD: February 5, 2004

RELEASED ORALLY: February 5, 2004

On appeal from the order of Justice Bryan Shaughnessy of the Superior Court of Justice, sitting as a summary conviction appeal judge, dated November 24, 2003 dismissing the appeal against the conviction entered and the sentence imposed by Justice Leonard T. Montgomery of the Ontario Court of Justice dated June 26, 2002.

E N D O R S E M E N T

[1] Coppola was tried before Montgomery J. of the Ontario Court of Justice on charges contained in two informations. The first alleged four counts: assault, uttering threats, unlawful confinement and failure to comply with probation. The second alleged two counts of failing to comply with a recognizance and related to a later date. Coppola was found not guilty of the counts in the second information but guilty on all four counts of the first information.

[1] Coppola appealed both conviction and sentence to the Summary Conviction Appeal Court. He sought and was granted bail pending the summary conviction appeal. On November 24, 2003, Justice Shaughnessy dismissed the appeal.

[2] The appellant’s principal submission is that the trial judge did not consider the evidence of “collusion” relating to the breach of recognizance charges on which he acquitted the appellant in considering the credibility of the complainant in relation to the charges of assault and the other counts in the first information.

[3] In our opinion the trial judge was alive to the concern raised by the appellant. In his reasons the trial judge stated that he had to consider the totality of the evidence presented to the court. In the course of giving his reasons on the assault and related charges, he stated that he was satisfied that the complainant did not come with an agenda to “railroad the accused and be a stranger to the truth”. He found her evidence in relation to the assault charges to be frank, reliable and he was satisfied beyond a reasonable doubt of the appellant’s guilt. There is no error of law and we cannot interfere. The appeal as to conviction is dismissed.

[4] With respect to sentence the appellant acknowledges that the sentence was within the range and there appears to be no error in principle. He has served approximately three and a half months of his twelve month sentence. He will be eligible for parole at the end of February. He seeks to have the sentence varied to a conditional sentence from today’s date. In support of that submission he relies on the fact that he has been gainfully employed in what would appear to be a good job while out on bail pending the summary conviction appeal. While that is commendable, we note that he has never had a problem with employment and that he has a history of violence and threatening violence towards women. His good behaviour and employment success are commendable and, in our view, these are matters that should properly be considered by the parole board.

[5] Accordingly, while leave to appeal sentence is granted, the appeal as to sentence is dismissed.

“Karen M. Weiler J.A.”

“M.J. Moldaver J.A.”

“K. Feldman J.A.”