R. v. Hennessey, 2007 ONCA 581

CITATION: R. v. Hennessey, 2007 ONCA 581

DATE: 20070827

DOCKET: C47338

COURT OF APPEAL FOR ONTARIO

SIMMONS AND BLAIR JJ.A. and McKINNON J. (AD HOC)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

ADRIAN HENNESSEY

Appellant

Irwin Koziebrocki for the appellant

Matthew Asma for the respondent

Heard: August 23, 2007

On appeal from the conviction entered by Associate Chief Justice Peter D. Griffiths of the Ontario Court of Justice dated September 28, 2005 and from the sentence imposed by Associate Chief Justice Griffiths of the Ontario Court of Justice dated September 28, 2005.

APPEAL BOOK ENDORSEMENT

[1] The appellant pleaded guilty to five counts of robbery committed within eleven days in June 2005. In addition to 7 months credit for pre-sentence custody, he was sentenced to thirty-five months imprisonment, concurrent, on each charge. He seeks leave to appeal sentence.

[2] The appellant asks this court to vary his sentence to 7 months imprisonment, consecutive, on each charge. The reason for this request is that an order was made deporting the appellant on September 13, 2006. Under s. 64(1) of the Immigration and Refugee Protection Act, the appellant has no right to appeal the deportation order if he receives a sentence of two years imprisonment or more for any single offence. This circumstance was unknown at the time the appellant was sentenced. The appellant has been in Canada since age five, his family is here, and he wishes to remain.

[3] In R. v. Hamilton and Mason (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129, this court stated that the risk of deportation can be a factor to be taken into consideration in choosing among the appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender. However, this court cautioned that the sentencing process cannot be used to circumvent the provisions and policies of the Immigration and Refugee Protection Act.

[4] On the facts of this case, the Crown acknowledges that a sentence of 23 months imprisonment, inclusive of pre-sentence custody, would not have been outside the range for any single count of the robbery offences. Both the Crown and the defence agree that the 35-month sentence imposed in addition to pre-sentence custody was appropriate in terms of totality. On these particular facts, given the Crown's concession, in our view, it would not circumvent the provisions and policies of the Immigration and Refugee Protection Act to impose sentences of 23 months on individual counts but a global sentence equivalent to that imposed by the trial judge.

[5] Accordingly leave to appeal sentence is granted, the appeal is allowed and the sentence is varied such that the sentence imposed is: 23 months imprisonment on each of counts 1 to 4, concurrent, and 12 months imprisonment on count 5 (in addition to 7 months credit for pre-sentence custody on a two-for-one basis in relation to count 5 only) with the sentence on count 5 to run consecutively to the sentence on the first four counts, for a total sentence of 35 months imprisonment (but an effective sentence of 42 months imprisonment taking account of pre-sentence custody).