DATE: 20051118

DOCKET: C44205

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – HENRY SZOSTAK (Appellant)

BEFORE:

BORINS, JURIANSZ and LAFORME JJ.A.

COUNSEL:

Michael W. Czuma

for the appellant

Amanda Rubaszek

for the respondent

HEARD & RELEASED ORALLY:

November 14, 2005

On appeal from the sentence imposed on March 31, 2005 by Justice S. Rebecca Shamai, of the Ontario Court of Justice.

E N D O R S E M E N T

[1] This was the seventh occasion on which the appellant was convicted of a breach of the terms of a recognizance or probation order requiring that he have no contact with his former common‑law spouse. Following his plea of guilty, the appellant was sentenced to fourteen months, in addition to thirty‑four days of pre‑trial custody. It is from this sentence that he has appealed.

[2] In the opinion of the trial judge the principles of denunciation and deterrence were paramount. In our view, the trial judge’s reasons disclose no error in principle and the sentence that was imposed was entirely fit for this repeat offender. In respect to prior sentences imposed by other courts the trial judge was entitled to consider, in addition to the actual sentence imposed, the time that the appellant had spent in pre‑trial custody, even though some charges were withdrawn.

[3] It was clear that the appellant had continuously flouted court orders and that the subject of those orders, his common‑law wife and his son, required protection from him. There was a long history, which goes back to 1999, of assaults and other conduct by the appellant directed against his common‑law spouse. The trial judge properly took these factors into consideration.

[4] Although the sentence may seem harsh, the trial judge was of the opinion that this was what was required for this incorrigible offender who showed no remorse. We find no reason to interfere with the trial judge’s assessment. Therefore, we would dismiss the appeal.

“S. Borins J.A.”

“R. G. Juriansz J.A.”

“H. S. LaForme J.A.”