DATE: 20060202

DOCKET: C43928

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – GERALD CHARLES VLUG (Appellant)

BEFORE:

FELDMAN, SHARPE and ROULEAU JJ.A.

COUNSEL:

Jeffrey Langevin

for the appellant

David Finley

for the respondent

HEARD & ENDORSED:

February 1, 2006

On appeal from sentence imposed by Justice Roydon Kealey of the Superior Court of Justice dated June 29 and 30, 2005.

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

[1] The appellant appeals the sentence imposed of two years less a day after taking into account two months of pre-trial custody. The appellant’s position is that the trial judge erred by effectively closing his mind to the option of a custodial sentence by revoking the appellant’s bail when he granted counsel’s request for an adjournment of the sentencing proceeding.

[2] In our view, although some of the comments made by the trial judge at that time may be viewed as unfortunate, he had not closed his mind to the possibility of a conditional sentence, nor would an informed person reviewing the matter realistically and practically and having thought the matter through, so conclude.

[3] Furthermore, in our view, the sentence imposed was not outside the range for the offence, in all the circumstances of this case. We see no basis to interfere with the trial judge’s conclusion that this was not a situation where a conditional sentence ought to be imposed.

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