DATE: 20060421

DOCKET: C44108

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and – WALTER GARRY JACOBSON (Applicant/Appellant)

BEFORE: SIMMONS, CRONK AND LANG JJ.A.

COUNSEL: Maureen McGuire for the appellant Tracy Stapleton for the respondent

HEARD & ENDORSED: April 13, 2006

On appeal from the sentence imposed by Justice Bernard M. Kelly of the Ontario Court of Justice on June 7, 2005.

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 sentencing judge erred in principle when he concluded that the conduct in issue in this case was in the category of the most serious of possible breaches of the appellant’s recognizance. We accept the Crown’s submission that in assessing the seriousness of a breach of recognizance under s. 810 of the Criminal Code the criminal history of the offender must be taken into account. However, we also accept the appellant’s counsel’s submission that not every breach of a recognizance under s. 810 of the Criminal Code mandates the maximum available sentence.

[2] In our view an appropriate sentence for this offence and this offender is 18 months imprisonment, together with the period of probation imposed by the sentencing judge.

[3] Accordingly, leave to appeal sentence is granted, the period of incarceration imposed by the sentencing judge is set aside and a sentence of 12 months imprisonment, in addition to 6 months time served, is imposed. All other terms of the sentence imposed by the sentencing judge shall remain the same.