DATE: 20050621

DOCKET: C42460

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MICHAEL GOAR (Appellant)

BEFORE:

DOHERTY, MOLDAVER and GILLESSE JJ.A.

COUNSEL:

Brian Simpson

for the appellant

Deborah Krick

for the respondent

HEARD:

April 21, 2005

On appeal from conviction by Justice Barry Matheson of the Superior Court of Justice dated August 3, 2004 and sentence imposed September 28, 2004.

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

[1] The appeal against conviction is dismissed as abandoned. With respect, we believe that the trial judge made two errors of principle in arriving at the sentence of six months imprisonment. First, he erred in holding that the appellant’s lack of remorse was an aggravating factor. Second, he failed to explain why, in the circumstances, the principle of general deterrence could not be adequately dealt with by the imposition of a well-tailored conditional sentence. In view of those errors, deference need not be shown and we are obliged to impose a sentence that we consider to be fit.

[2] In the circumstances, having regard to the many mitigating factors that exist, we are of the view that this is an appropriate case for a conditional sentence of twelve months on the terms and conditions set out in Part IV of the appellant’s factum. In addition, the appellant shall perform forty hours of community service.