DATE: 20030908 DOCKET: C37278

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and– DALSTER McLEAN (Appellant)

BEFORE:

CATZMAN, ABELLA and GILLESE JJ.A.

COUNSEL:

Joseph Wilkinson for the appellant

Benita Wassenaar for the respondent

HEARD & ENDORSED:

September 8, 2003

On appeal from conviction entered by Justice Peter A.J. Harris of the Ontario Court of Justice dated May 11, 2001 and from the sentence imposed by Justice Harris dated September 10, 2001.

APPEAL BOOK ENDORSEMENT

[1] With respect to the conviction appeal, we see no error in the trial judge's rejection of the appellant's evidence. His reasons reflect a careful analysis of the circumstances surrounding the offence and his findings are supported in the evidence he chose to accept. There was no improper shifting of the burden of proof to the appellant. The verdict was not unreasonable, and there was ample support in the evidence for the conclusion the trial judge reached.

[2] With respect to the sentence appeal, reading the reasons for sentence as a whole, we do not agree that the trial judge considered that it would be an error in principle to impose a conditional sentence. For the reasons he gave, the sentence he imposed was fit and is not one with which this court can appropriately interfere.

[3] The appeal against conviction is dismissed. Leave to appeal against sentence is granted but the appeal against sentence is dismissed.