DATE: 20030912
DOCKET: C37198
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and– ROBERT J. STUART (Applicant/Appellant)
BEFORE:
CATZMAN, ABELLA and GILLESE JJ.A.
COUNSEL:
Joseph Di Luca for the applicant/appellant
Mary Ellen Hurman for the respondent
HEARD & ENDORSED:
September 12, 2003
On appeal from the conviction entered by Justice Philip E. Baker of the Ontario Court of Justice dated August 3, 2001 and from the sentence imposed by Justice Baker dated August 10, 2001.
APPEAL BOOK ENDORSEMENT
CATZMAN AND GILLESE JJ.A.:
[1] The majority of the court does not read the reasons of the sentencing judge as feeling himself precluded from imposing a conditional sentence in this case. In the absence of error in principle or any of the other factors that warrant appellate intervention, this court is obliged to defer to the sentencing judge's disposition of sentence. Accordingly, we grant leave to appeal sentence, but would dismiss the appeal.
ABELLA J.A. (dissenting):
[2] I agree with the appellant's submission that the trial judge's brief reasons reflect an error in principle, namely, his implicit assumption that a conditional sentence was not available for this kind of offence. This is contrary to at least 3 decisions of this court.
[3] Based on the particular circumstances of the appellant, and especially the positive pre-sentence report, I would have imposed a conditional sentence.