Court of Appeal for Ontario
Between:
Her Majesty the Queen Appellant
and
Francesco Rende Respondent
Before: MacPherson, Armstrong and Epstein JJ.A.
Counsel: Amber Pashuk and Nicholas E. Devlin, for the appellant J.R. Barrs, for the respondent
Heard: October 1, 2009
On appeal from the sentence imposed by Justice John L. Getliffe of the Ontario Court of Justice, on December 15, 2008.
APPEAL BOOK ENDORSEMENT
1The respondent concedes that the trial judge erred by not making DNA and s. 109 orders. Both orders are necessary in this case.
2But for the fresh evidence, we would allow this appeal – a conditional sentence in this case, especially given the amount of cocaine involved, was manifestly unfit given the case law in this area.
3However, the fresh evidence we have received, and which the Crown accepts as accurate, is compelling. The respondent’s own health has deteriorated significantly this year and, tragically, his son is terminally ill with brain cancer. For this reason, and this reason only, we would not alter the custodial sentence imposed by the trial judge.
4The appeal is allowed with respect to the s. 109 and DNA orders.