Court of Appeal for Ontario
Before: Moldaver, Armstrong and Rouleau JJ.A.
Between:
Her Majesty the Queen
Respondent
And
Misael Polio
Applicant/Appellant
Counsel:
Nicholas A. Xynnis, for the applicant/appellant
Emile Carrington, for the respondent
Heard: November 9, 2010
On appeal from the sentence imposed by Justice S. Bruce Durno of the Superior Court of Justice dated May 5, 2008.
APPEAL BOOK ENDORSEMENT
1The appellant received the equivalent of a 40-month sentence on a joint submission following his pleas of guilty to one count of being masked with intent to commit an indictable offence and one count of failing to comply with an undertaking. As part of the plea arrangement, the Crown agreed to withdraw various other charges, including attempted murder and serious firearms offences that would have attracted minimum penitentiary sentences upon conviction.
2The appellant now seeks a 16-month reduction in his sentence for immigration purposes.
3Apart from immigration concerns, he provides no basis for suggesting that such a substantial reduction is warranted. The sentence he proposes is well outside the range of sentence deemed appropriate by counsel and the sentencing judge. Prior authorities from this court make it clear that we cannot allow deportation consequences to justify what would otherwise be an unfit sentence. Here, it is clear, on the joint submission, that everyone agreed that a fit sentence would be one on the terms agreed to (40 months). That is a far cry from an effective sentence of two years less a day that the appellant now seeks.
4In the circumstances, while we would grant leave to appeal, we would dismiss the appeal from sentence. Any humanitarian factors that relate to the appellant’s immigration status will no doubt be considered by the Minister.