DATE: 20050530

DOCKET: C42906

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – MARK NORBERT HYLTON (Appellant)

BEFORE:

SIMMONS, CRONK and MacFARLAND JJ.A.

COUNSEL:

Leslie Maunder

for the appellant

Lisa Mathews

for the respondent

HEARD & RELEASED ORALLY:

May 25, 2005

On appeal from the sentence imposed by Justice J. McGarry of the Superior Court of Justice on April 13, 2004.

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

[1] The circumstances of this case clearly required that the trial judge give serious consideration to a conditional sentence. On our review of the trial judge’s reasons, we are not persuaded that he did so; rather, he simply indicated his preference for a custodial sentence.

[2] The appeal is allowed and the sentence imposed by the trial judge is set aside and a conditional sentence of 30 days, on the statutory terms, with credit for time served is substituted in its place.