DATE: 20060112

DOCKET: C39674

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) v. MAURIZIO GIDILLINI (Appellant)

BEFORE:

DOHERTY, SHARPE and JURIANSZ JJ.A.

COUNSEL:

Jennifer Gleitman for the appellant

Susan Magotiaux for the respondent

HEARD & ENDORSED:

January 10, 2006

On appeal from the conviction entered by Justice G.I. Thomson of the Superior Court of Justice, sitting with a jury, dated December 10, 2001 and the sentence imposed dated June 21, 2002.

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

[1] The trial judge did not err in holding that the evidence on each count could be considered on the other counts on the issue of identity. The circumstances surrounding the two robberies provided ample basis for a finding of "striking similarity".

[2] While it would have been better had the trial judge followed the language used by Cory J. in R. v. Arp when instructing the jury on similar fact evidence, we are satisfied that the trial judge's language, while somewhat confusing, did not prejudice the appellant or mislead the jury.

[3] The conviction appeal is dismissed.

[4] The trial judge imposed sentencing totalling seven years in addition to the equivalent of three years pre-trial custody. The appellant had never been to jail before these convictions. He has a most unfortunate background. The sentence imposed by the trial judge exceeded by one year the range suggested by the Crown. The offences were serious and as indicated by the four year minimum provided for in the Criminal Code, required lengthy sentences. The sentence (10 years) imposed was, however, manifestly excessive given the appellant's background and the fact that this was the appellant's first jail term.

[5] We would allow the sentence appeal and vary the sentence to five years concurrent on each count resulting in a total sentence equivalent to eight years having regard to the three years pre-trial custody.