Court of Appeal for Ontario

CITATION: R. v. Bauer, 2010 ONCA 331

DATE: 20100506

DOCKET: C51389

Doherty, Juriansz and Karakatsanis JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Stephen Bauer

Appellant

Counsel: Catriona Verner, for the appellant Erika Chozik, for the respondent

Heard: May 5, 2010 On appeal from the sentence imposed by Justice Michelle Fuerst of the Superior Court of Justice dated December 1, 2008.

APPEAL BOOK ENDORSEMENT

[1] The trial judge took a very different view of the appropriate sentence case than the trial Crown. She did not agree that probation should be a component of the sentence. The Crown’s submission of two years was predicated on the suitability of a three-year probation term after incarceration. As the trial judge rejected probation as appropriate, it followed that the Crown’s position was “off the table” as far as the trial judge was concerned. She was entitled to take this view on sentence.

[2] The fitness of the sentence comes down to a question of totality. The trial judge was entitled to treat the events in 2004, 2005 and 2008 as separate offences. Her ultimate disposition did acknowledge the totality concerns while at the same time recognized that the appellant had demonstrated a relentless determination to continue to commit serious child pornography related offences even when under strict bail terms. We do not accept that the total sentences imposed were unreasonable given the numerous aggravating circumstances.

[3] We would not interfere with the s. 161 order. If the circumstances change, the appellant can apply for a variation of that order.

[4] The appeal is dismissed.