R. v. Gamble, 2011 ONCA 308

APPEAL BOOK ENDORSEMENT

1The appellant pleaded guilty to attempt to break and enter, possession of property obtained by crime and possession of break-in instruments. He was sentenced to two years less a day imprisonment and 3 years’ probation, concurrent on all three charges.

2The primary issue on this appeal is whether the trial judge erred in principle in not giving the appellant any credit for five months of pre-trial custody. The appellant acknowledges that a trial judge has discretion to decide what credit, if any, to give to time spent in pre-trial custody, but submits that existing jurisprudence is to the effect that trial judges should ordinarily give credit for pre-trial custody and should not deny credit without good reason. The appellant submits that the trial judge stated only “there will be no credit for dead time” and gave no reasons for denying credit for pre-trial custody.

3We agree that the trial judge’s reasons are deficient in this regard and that he therefore erred in principle. Nevertheless, having regard to the appellant’s lengthy criminal record for offences of a similar nature and the fact that this offence was committed a scant two months after his statutory release for a similar offence, we are of the opinion that the sentence was not demonstrably unfit.

4Accordingly while leave to appeal sentence is granted the appeal as to sentence is dismissed.