Court of Appeal for Ontario

Citation: R. v. Veenhof, 2011 ONCA 195

Date: 2011-03-11

Docket: C52234

Before: Simmons, Rouleau and Karakatsanis JJ.A.

Between:

Her Majesty The Queen

Applicant (Appellant)

and

Derek Veenhof

Respondent

Counsel:

Robert Gattrell, for the appellant

Paul Calarco, for the respondent

Heard and released orally: March 7, 2011

On appeal from sentence imposed by Justice Don Taliano of the Superior Court of Justice, dated May 10, 2010.

Endorsement

[1] The respondent pled guilty to aggravated assaulted and, following a trial, was convicted of assault with a weapon.

[2] On the trial judge’s findings, the respondent was the instigator in escalating to violence an incident involving uninvited house party guests. The respondent broke a beer bottle over one victim’s head, causing a wound necessitating six stitches. He then took the opportunity to retrieve a sword and struck the other victim in the back while waving the sword, causing a wound necessitating 26 stitches.

[3] Taliano J. sentenced the respondent to a six month conditional sentence, which included 120 hours of community service and a curfew from 11 p.m. to 6 a.m., together with 12 months’ probation.

[4] The Crown seeks leave to appeal and asks that a sentence of imprisonment be imposed. In our view, it was open to the sentencing judge to impose a conditional sentence because of the respondent’s youth, lack of a prior record, his expression of remorse, his bright prospects and the fact that his conduct on the evening in question was apparently out of character.

[5] That said, the duration and terms of the conditional sentence imposed were wholly inadequate to address the sentencing goals of denunciation and general deterrence for these very serious offences.

[6] The appellant has now served his conditional sentence and is on probation. The fresh evidence demonstrates he is doing well.

[7] In the circumstances, we allow the appeal, set aside the conditional sentence imposed, substitute a conditional sentence of 2 years less 7 days taking account of pre-sentence custody and give 10 months’ credit for time served, leaving a conditional sentence of 14 months less 7 days. We impose house arrest for the first seven months of the conditional sentence, with exceptions for school, work, medical appointments, attending on his conditional sentence supervisor and other purposes as approved by the conditional sentence supervisor in writing. Otherwise the terms imposed by the trial judge save for community service shall continue in place for the duration of the conditional sentence. The terms of the probation order imposed shall remain in full force and effect.

[8] The respondent shall attend upon his conditional sentence supervisor no later than March 14, 2011 for the purposes of implementing this sentence failing which a bench warrant may issue at the request of the Crown.

Signed: "Janet Simmons J.A." "Paul Rouleau J.A." "Karakatsanis J.A."