Court File and Parties
Court of Appeal for Ontario
Feldman, Armstrong and Lang JJ.A.
Between:
Her Majesty the Queen Respondent
and
Juan Carlos Flores Appellant
Counsel: Terry S. Guerriero for the appellant Matthew Asma for the respondent
Heard and endorsed: October 1, 2007
On appeal from sentence imposed by Justice Gregory A. Pockele of the Ontario Court of Justice dated March 27, 2006.
Appeal Book Endorsement
1The appellant robbed an acquaintance of $80 at knife point at night in a parking lot. He also punched the victim in the face three times and threatened him. The Crown at trial sought a sentence of nine to twelve months minus pre-trial custody. Although the trial judge jumped the Crown’s submission by imposing a sentence of fifteen months, we see no error in that aspect of the sentence imposed, nor do we find it outside the range, given the circumstances of this case.
2Crown counsel on the appeal conceded that it was implicit in trial Crown’s submissions that he was seeking 2 for 1 credit on the pre-sentence custody. The trial judge imposed 1 for 1 without seeking submissions from counsel. He did that on the basis that the appellant had been arrested on a bench warrant after failing to appear for an earlier court date. He also mentioned the appellant’s immigration status as a relevant factor on the issue.
3In our view, the trial judge erred by jumping the Crown on the credit for pre-trial custody without seeking submissions from counsel and by referring to the appellant’s immigration status.
4We would therefore grant leave to appeal sentence, allow the appeal on this issue and reduce the sentence to fifteen months minus pre-sentence custody credited on the 2 for 1 basis including the fourteen days that was not counted by the trial judge, totalling 208 days credit. The probation order remains in place.