DATE: 20060425

DOCKET: C44541

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – NELSON CARVALHO (Applicant/Appellant)

BEFORE:

SIMMONS, CRONK AND LANG, JJ.A.

COUNSEL:

A. Chiodo

for the appellant

C. Tier

for the respondent

HEARD & RELEASED ORALLY:

April 13, 2006

On appeal from the sentences imposed by Justice Vibert A. Lampkin of the Ontario Court of Justice on June 16, 2005.

E N D O R S E M E N T

[1] The appellant seeks leave to appeal sentences imposed of five years imprisonment on a charge of break, enter and commit the indictable offence of theft and three years imprisonment, to be served concurrently, on a charge of attempted breaking and entering.

[2] The appellant pleaded guilty to these offences on June 16, 2005. Both offences were committed in the early morning hours of that same day. In relation to the first offence, the appellant ripped open a screen window of a dwelling house, entered the dwelling and stole some personal property. The female resident of the dwelling was asleep in an adjacent room but did not wake up during the incident. In relation to the second offence, the appellant attempted to enter a shed attached to a dwelling to steal a bicycle so that he could leave the area.

[3] In his reasons, the sentencing judge noted that the appellant was 32 years of age at the time of sentencing, that he had a criminal record that included 45 convictions (14 of which were for breaking and entering) and that the appellant was on parole at the time of the offences charged.

[4] On appeal, the appellant’s counsel contends that the sentences imposed are beyond the range of what was appropriate for these offences and this offender. We disagree.

[5] We acknowledge that the sentence of five years imprisonment was stiff and that the appellant’s longest previous sentence was two years imprisonment. However, in our view, given that the appellant broke into a residential dwelling in the early morning hours when the female occupant was present, that he has a significant criminal record for similar offences, that he had twice previously been sentenced to the penitentiary for such offences, and that he was on parole at the time these offences were committed, the sentence imposed was not unfit.

[6] Accordingly, leave to appeal sentence is granted but the sentence appeal is dismissed.

“Janet Simmons J.A.”

“E.A. Cronk J.A.”

“Susan E. Lang J.A.”