Court File and Parties

Citation: R. v. Flores, 2007 ONCA 677

Date: 2007-10-02

Docket: C47022

Court of Appeal for Ontario

Feldman, Armstrong and Lang JJ.A.

Between:

Her Majesty the Queen Respondent

and

Juan Carlos Flores Appellant

Counsel: Terry S. Guerriero for the appellant Matthew Asma for the respondent

Heard and endorsed: October 1, 2007

On appeal from sentence imposed by Justice Gregory A. Pockele of the Ontario Court of Justice dated March 27, 2006.

Appeal Book Endorsement

[1] The appellant robbed an acquaintance of $80 at knife point at night in a parking lot. He also punched the victim in the face three times and threatened him. The Crown at trial sought a sentence of nine to twelve months minus pre-trial custody. Although the trial judge jumped the Crown’s submission by imposing a sentence of fifteen months, we see no error in that aspect of the sentence imposed, nor do we find it outside the range, given the circumstances of this case.

[2] Crown counsel on the appeal conceded that it was implicit in trial Crown’s submissions that he was seeking 2 for 1 credit on the pre-sentence custody. The trial judge imposed 1 for 1 without seeking submissions from counsel. He did that on the basis that the appellant had been arrested on a bench warrant after failing to appear for an earlier court date. He also mentioned the appellant’s immigration status as a relevant factor on the issue.

[3] In our view, the trial judge erred by jumping the Crown on the credit for pre-trial custody without seeking submissions from counsel and by referring to the appellant’s immigration status.

[4] We would therefore grant leave to appeal sentence, allow the appeal on this issue and reduce the sentence to fifteen months minus pre-sentence custody credited on the 2 for 1 basis including the fourteen days that was not counted by the trial judge, totalling 208 days credit. The probation order remains in place.