Court File and Parties

CITATION: R. v. Stone, 2010 ONCA 95

DATE: 20100209

DOCKET: C50672

COURT OF APPEAL FOR ONTARIO

Doherty, Laskin and Lang JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Marcia Stone

Respondent

Counsel: Greg Skerkowski, for the appellant M. Halfyard, for the respondent

Heard: February 1, 2010 On appeal from the sentence imposed by Justice W. Gonet of the Ontario Court of Justice dated May 28, 2009.

APPEAL BOOK ENDORSEMENT

[1] This was a case where the trial judge could have imposed incarceration. Indeed, it is fair to say that absent significant extenuating circumstances, incarceration should be imposed for this kind of offence. Unfortunately, the trial judge did not identify the “very special circumstances” which led him to impose a non-custodial term. He should have.

[2] We have reviewed the fitness of sentence having regard to the circumstances at the time and the respondent’s conduct over the eight months that she has been on a conditional sentence. Her conduct has been exemplary. She continues to make restitution and has acquired a good job. Her probation officer’s comment that it “would be terrible” to incarcerate the respondent at this stage in her life is borne out by the record. Her probation officer also describes her as an “ideal client”.

[3] This is a case where the interests of justice would not be served by incarcerating the respondent for three or four months at this stage. We decline to do so.

[4] Leave to appeal is granted and the appeal is dismissed.