DATE: 20060502

DOCKET: C43607

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Applicant/Appellant) – and – GEORGE NOWACKI (Respondent)

BEFORE:

FELDMAN, SIMMONS AND BLAIR JJ.A.

COUNSEL:

Roger Shallow

for the appellant

Herve Sauve

for the respondent

HEARD & ENDORSED:

April 28, 2006

On appeal from the sentence imposed by Justice Yvon Renaud of the Ontario Court of Justice on May 2, 2005.

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

[1] In light of the appellant’s prior history for committing similar offences, the calculated and deliberate nature of his breach of the probation order, and the repetitive nature of the domestic violence offences, in our view, the trial judge erred by underestimating the gravity of the appellant’s offences. In all of these circumstances, a penitentiary sentence was clearly warranted and a conditional sentence was not appropriate.

[2] However, in addition to pre-sentence custody, the appellant has now served almost twelve months of the twenty month conditional sentence that was imposed. This portion of the conditional sentence involved house arrest. In addition, it appears that, during this period, the appellant has completed a rehabilitation program. Given these circumstances, we are not satisfied that it would be appropriate to reincarcerate the appellant at this time.

[3] Should there be a breach of condition or a repetition of these offences, these reasons shall be brought to the attention of the judge disposing of the issue.

[4] Leave to appeal sentence is granted but the appeal is dismissed.