DATE: 20050309

DOCKET: C42299

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Appellant) – and – MICHAEL ERROL GREEN (Respondent)

BEFORE: ROSENBERG, GOUDGE and MacFARLAND JJ.A.

COUNSEL: Maria Gasper and F. O’Donnell for the appellant Michael Strathman for the respondent

HEARD & ENDORSED: March 4, 2005

On appeal from sentence imposed by Justice Khawly of the Ontario Court of Justice dated July 29, 2004.

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

[1] We agree that the sentence imposed was unfit and the trial judge erred in principle in failing to given weight to the joint position of counsel that some time in custody was required.

[2] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence varied to ninety days intermittent to commence Saturday morning at 7:00 a.m. March 5, 2005 to Monday morning at 5:00 a.m. and thereafter Saturday from 7:00 a.m. to Monday 5:00 a.m. The respondent shall be on probation while not in custody serving the sentence on the statutory terms and on condition that he must appear at the jail in a sober condition.