COURT OF APPEAL FOR ONTARIO
DATE: 20051114
DOCKET: C42300
RE: HER MAJESTY THE QUEEN (Respondent) v. DONALD DUNCAN (Appellant)
BEFORE: DOHERTY, WEILER & MOLDAVER JJ.A.
COUNSEL:
Irwin Koziebrocki for the appellant
Sandra Kingston and Timothy Morgan for the respondent
HEARD & ENDORSED: November 9, 2005
On appeal from the conviction entered by Justice Low of the Superior Court of Justice dated April 18, 2004 and the sentence imposed on August 23, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] The reasons for judgment are exemplary. The reasons thoroughly address the evidence and all of the issues that have been raised on appeal. In our view, the reasons reveal no error.
[2] The trial judge imposed a sentence of two years less a day to be followed by three years probation. This was a difficult sentencing problem. We find no error in principle in the reasons for sentence. We specifically reject the submission that she erred in principle in her assessment of the potential primitive effect of a conditional sentence in all of the circumstances. Her analysis was appropriate.
[3] The sentence imposed was measured and reflected a consideration of the appellant’s age (78) and his medical condition. As the trial judge correctly observed, absent these mitigating factors, a penitentiary term of three years would have been appropriate.
[4] We have considered the fresh evidence pertaining to the appellant’s medical condition. While his condition is cause for concern, we are not persuaded that it cannot be appropriately monitored and treated by the prison authorities. The medical reports should be brought to the attention of the prison authorities. Leave to appeal sentence granted and the appeal is dismissed.