DATE: 20050609

DOCKET: C43472

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN – (Respondent) – and –PRZEMYSLAW WYSOKINSKI (Applicant/Appellant)

BEFORE:

SHARPE, JURIANSZ and ROULEAU JJ.A.

COUNSEL:

James Zegers

for the appellant

Brian McNeely

for the respondent

HEARD & ENDORSED:

June 8, 2005

On appeal from the judgment of Justice G.A. Pockele dated January 20, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, the trial judge erred in failing to give any credit for the 21 days pre-trial custody served in 2002. The trial judge did credit the appellant with 40 days served in 2004-2005 on a one for one basis. As we read his reasons, this was because of flagrant violation of trial conditions which he was entitled to take into account.

[2] Despite the error with respect to the 21 days, we agree with the Crown that given the gravity of these offences and the appellant’s record, the sentence imposed was a fit one even if credit had been given. Accordingly, leave to appeal sentence is granted but the appeal is dismissed.

“Robert J. Sharpe J.A.”