DATE: 20041112

DOCKET: C37032

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – WILLIAM GEORGE DURFY (Appellant)

BEFORE:

WEILER, SIMMONS and JURIANSZ JJ.A.

COUNSEL:

Jeanine LeRoy

for the appellant

David Carruthers

for the respondent

HEARD & RELEASED ORALLY:

November 5, 2004

On appeal from the sentence of Justice James M. Donnelly of the Superior Court of Justice dated August 31, 2001.

E N D O R S E M E N T

[1] The appellant was a real estate agent who tried to recover a sales commission by forging an extension on a listing agreement. The appellant’s employer discovered the forgery.

[2] The appellant was charged with two counts of uttering a forged document and one count of fraud. He pled not guilty. At his trial, he admitted to the forgery and changed his plea to guilty on one count of uttering a forged document. The other two charges were withdrawn. The appellant asked for a conditional discharge. He was fined $5000 and sentenced to twelve months probation.

[3] The appellant appeals against sentence submitting the trial judge erred by failing to grant him a conditional discharge.

[4] The fact that the offender did not have a criminal record, was otherwise a responsible member of the community were weighed appropriately as the offender was not sentenced to incarceration. The sentencing judge considered his forgery, committed as a real estate agent, was a serious, deliberate breach of trust. The sentencing judge properly noted the accused maintained his denial through the completion of the crown’s case and did not plead guilty until he was in the midst of cross-examination.

[5] Even if the sentencing judge erred in principle by treating the appellant’s denial under oath as an aggravating factor, we agree that in all of the circumstances of this case, it would not be in the public interest to grant a conditional discharge to the appellant, who committed a breach of trust as a professional dealing with the public.

[6] The sentence was appropriate. The appeal is dismissed.

“K.M. Weiler J.A.”

“J.M. Simmons J.A.”

“R.G. Juriansz J.A.”