DATE: 20041014

DOCKET: C41541

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) -and- PHILIP ZELLMAN (Respondent)

BEFORE:

LABROSSE, MacPHERSON and CRONK JJ.A.

COUNSEL:

Grace Choi

for the appellant

Robert Upsdell

for the respondent

HEARD AND ENDORSED:

October 14, 2004

On appeal from the sentence imposed by Justice William A. Jenkins of the Superior Court of Justice, sitting without a jury, on February 27, 2004.

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

[1] At the outset, we wish to state that, in our view, the appellant was solely responsible for these offences. The offences were serious and required an appropriate sentence.

[2] The sentence of 8 months plus the equivalent of 10 months (2-to-1) of pre-trial custody, plus a reasonable credit for the pre-trial bail equivalent to house arrest for 10 months, brings the sentence to the equivalent of a penitentiary term.

[3] The total sentence would still be lenient and at the low end of the range.

[4] The fresh evidence indicates that the appellant has resumed looking after his son and has found employment.

[5] In our view, the sentence, looked at in its entirety, is not so inadequate that we should interfere. It would not be in the interest of justice, in the circumstances, to send the appellant back to jail for a third time as a result of these offences.

[6] The appeal is dismissed.