Court File and Parties

CITATION: R. v. Vanhemert, 2007 ONCA 762

DATE: 20071107

DOCKET: C46805

COURT OF APPEAL FOR ONTARIO

MOLDAVER, SHARPE and BLAIR JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN Appellant

and

ARIE VANHEMERT Respondent

Counsel: Joseph Perfetto for the appellant Clayton Ruby for the respondent

Heard and endorsed: November 5, 2007

On appeal from sentence imposed by Justice A.M. Graham of the Ontario Court of Justice dated February 14, 2007.

APPEAL BOOK ENDORSEMENT

[1] The respondent pled guilty to one count of criminal harassment. He received a suspended sentence plus three years probation, having served eight days of pre-trial custody.

[2] The respondent is a fifty-seven year old first offender. He resides in British Columbia and his wife (the complainant) resides in Ontario with the children. On the day in question, the respondent travelled from British Columbia to Ontario and attended at the home of his wife. Although he did not have a gun or other weapon on his person at the time, his wife had legitimate cause to be concerned because he had recently told his daughter that he had purchased a gun with a view to bringing the family back together.

[3] We consider this to be a troubling feature of the case. That said, the trial judge was aware of it but nonetheless was satisfied in the particular circumstances, that the fact of conviction, the distance separating the respondent and the complainant, the terms of a probation order (for three years) and the weapons prohibition would adequately protect the interests of society and the complainant and drive home to the respondent the seriousness of his crime and the importance of not repeating it.

[4] In the end, while a custodial sentence could have been imposed, we are not persuaded that the trial judge erred in principle in imposing the sentence he did; nor are we satisfied that the sentence itself was demonstrably unfit. Accordingly, while leave to appeal is granted, the appeal from sentence is dismissed.