DATE: 20040115

DOCKET: C39798

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. DWIGHT SUTHERLAND (Appellant)

BEFORE: McMURTRY C.J.O., ABELLA AND BLAIR JJ.A.

COUNSEL: Nicholas A. Xynnis for the appellant Nadia Thomas for the respondent

HEARD & ENDORSED: January 14, 2004

On appeal from the sentence imposed by Justice I. Nordheimer dated March 18, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] It appears that the sentencing judge’s references to the lack of evidence of effective community supervision is not in accord with what this court stated in R. v. Nault (2002) 2002 44945 (ON CA), 59 O.R. (3d) 388 at para. 9 as follows:

In a situation where the sentencing judge is concerned about the available resources, the judge should ask counsel to advise the Court of the proposed supervision plan and, if necessary, provide evidence that the proposed supervision will be in place. In that way, the judge can consider the submission and his or her concerns in the context of a record, both counsel will have an opportunity to assist the court and provide input into the record, and a court on appeal of the sentence will have a record on which to base its consideration of the issue.

[2] However, in our view the appellant was not a good candidate for a conditional sentence given his serious criminal record and the other factors noted by the trial judge.

[3] In all of the circumstances, we are of the opinion that the sentence imposed was a fit one.

[4] Leave to appeal sentence is granted but the appeal as against sentence is dismissed.