Court of Appeal for Ontario

CITATION: R. v. Udoka, 2014 ONCA 347

DATE: 20140501

DOCKET: C58254

Goudge, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Achilike Udoka (a.k.a. Udoka Chris Achilike)

Appellant

Counsel: Graham T. Clark, for the appellant Jason Balgopal, for the respondent

Heard and released orally: April 15, 2014

On appeal from the sentence imposed on September 20, 2013 by Justice Bruce Duncan of the Ontario Court of Justice.

ENDORSEMENT

[1] The Crown fairly concedes that the sentencing judge erred in principle by proceeding without hearing submissions from the appellant. It therefore falls to this court to impose the appropriate sentence.

[2] In all the circumstances, we would impose a conditional discharge. While the breach of the court order consists of numerous calls made soon after the date of the court order, we view the breach as at the less serious end of the spectrum. They were calls that were collect to, and therefore accepted by, the complainant. They were long enough that the complainant had ample opportunity to hang up, an opportunity she chose not to take. There was no evidence that the contents of the calls contained any threats. And the appellant was in custody when the calls were made. Thus the calls posed no immediate danger to the complainant.

[3] The circumstances of the appellant, combined with the circumstances of the offence, make a conditional discharge appropriate. He has a positive personal background. He has served four months in jail. And he faces deportation if convicted.

[4] In all the circumstances, leave to appeal sentence is granted. The sentence appeal is allowed and a conditional discharge is substituted.

[5] The parties propose, and we agree, that the term of probation be six months, that the appellant have no contact with the complainant, that the appellant be subject to a weapons ban, that the appellant reside at a location approved by his probation officer, and that he report to his probation officer as that officer directs. If further terms are required, the court may be spoken to.

[6] Finally, we note that the Crown agrees with the appellant that the appellant’s pre-trial custody be credited at 1:1. So ordered.

“S.T. Goudge J.A.”

“E.A. Cronk J.A.”

“Gloria Epstein J.A.”