Court of Appeal for Ontario

Date: 2017-01-18 Docket: C57148

Judges: Feldman, Rouleau and van Rensburg JJ.A.

Between

Her Majesty the Queen Respondent

and

Kurt Allen Appellant

Counsel

Kurt Allen, acting in person L. Kurt Wildman, duty counsel Katherine Beaudoin, for the respondent

Heard: January 9, 2017

On appeal from: the sentence imposed on May 7, 2013 by Justice Graham Wakefield of the Ontario Court of Justice.

Endorsement

[1] The appellant was convicted of two Criminal Code offences in relation to his application for and use of a false passport. He appeals the refusal of the sentencing judge to impose a conditional discharge, arguing that the sentencing judge erred in law or principle in his consideration of the "public interest" factor under s. 730 of the Code.

[2] We disagree. Although the sentencing judge did not specifically refer to the test in s. 730, it is clear from the record and his reasons that he concluded that a conditional discharge was not in the public interest as it would not serve the sentencing objectives of general deterrence and denunciation. That conclusion, on the facts of this case, where the appellant used a fraudulent passport to make multiple entries into the United States, was entirely warranted. The conditional sentence of six months, followed by one year probation took into consideration the mitigating factors, including the early guilty plea, the appellant's otherwise good character, his successful employment record and contributions to the community.

[3] Leave to appeal sentence is granted and the appeal is dismissed.

"K. Feldman J.A."

"Paul Rouleau J.A."

"K. van Rensburg J.A."