DATE: 20040823

DOCKET: C40379

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) – and- HUY QUOC BUI (Appellant)

BEFORE: ROSENBERG, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Graham T. Clark for the appellant

Anya Weiler for the respondent

HEARD: August 13, 2004

RELEASED ORALLY: August 13, 2004

On appeal from sentence imposed by Justice A. Zuraw of the Ontario Court of Justice dated January 27, 2003.

E N D O R S E M E N T

[1] This is an unfortunate case. We have here a first offender of otherwise good character who has committed a very serious offence. He supports his family and is an essential employee. Very strong character evidence was adduced on his behalf. That said, we are satisfied that the sentence imposed was a fit one and that the trial judge did not err in refusing a conditional sentence.

[2] We are not satisfied that there was any material error in principle. We are satisfied that the trial judge gave fair consideration to a conditional sentence and did not reject that form of sentence because of lack of supervisory resources. The trial judge’s apparent endorsement of the Crown’s position that lack of remorse and the conduct of the defence were factors to consider on the availability of conditional sentences is unfortunate. However, the core of the trial judge’s reasons were concerned with general deterrence bearing in mind the commercial nature of the offence and these were appropriate reasons for rejecting the conditional sentence in the circumstances of this case.

[3] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“R. A. Blair J.A.”