Court of Appeal for Ontario

Citation: R. v. Carpani, 2009 ONCA 708 Date: 20091008 Docket: C50210

Before: O’Connor A.C.J.O., Armstrong and Epstein JJ.A.

Between:

Her Majesty the Queen Appellant

and

Michael Andrew Carpani Respondent

Counsel: Brad Greenshields, for the appellant Michael Shea, for the respondent

Heard and orally released: October 2, 2009

On appeal from the sentence imposed by Justice Alphonse Lacavera of the Ontario Court of Justice dated February 20, 2009.

ENDORSEMENT

[1] The Crown appeals the conditional sentence of 2 years less a day for an offence of robbery. The appeal is allowed.

[2] The sentencing judge made the error referred to by the Supreme Court of Canada in R. v. Fice (2005), 2005 SCC 32, 196 C.C.C. (3d) 97. He determined, correctly in our view, that the seriousness of the offence warranted a penitentiary sentence. However, taking into consideration 152 days of pre-sentence custody on the basis of 2:1, the sentencing judge determined that a sentence of 2 years less a day was appropriate and imposed a conditional sentence of that length.

[3] In our view, the sentencing judge erred by, in effect, treating the pre-sentence custody as a mitigating factor rather than as a credit to be applied against the appropriate sentence. Thus, a conditional sentence was not available.

[4] It falls to this court to determine an appropriate sentence. Given the seriousness of the offence, the respondent’s horrendous criminal record, and the positions of counsel, we are of the view that a 3 year sentence in the penitentiary is appropriate. We accept the position of counsel that taking into account the pre-sentence custody on a 2:1 basis and the time served on the conditional sentence on a 1:1 basis, the custodial portion of the sentence remaining to be served is 16 months and 2 weeks.

[5] The appeal is, therefore, allowed and the respondent is sentenced to a custodial term of 16 months and 2 weeks. The 3 year term of probation ordered by the sentencing judge will continue to apply.

“Dennis O’Connor A.C.J.O.” “Robert P. Armstrong J.A.” “Gloria Epstein J.A.”