COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jaffary, 2013 ONCA 438

DATE: 20130624

DOCKET: C56586

Rosenberg, Sharpe and Gillese JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Syed Ali Jaffary

Appellant

H. John Kalina for the appellant

Philippe G. Cowle for the respondent

Heard: June 21, 2013

On appeal from the sentence imposed on January 9, 2013 by Justice John C. Murray of the Superior Court of Justice.

APPEAL BOOK ENDORSEMENT

[1] We are not persuaded that there was any error in the 9 month sentence or that the immigration consequences of that sentence would justify its reduction.

[2] The appellant was convicted of three break and enters, all involving private dwellings. The third offence was committed while the appellant was on bail for the earlier charges. The trial judge was clearly aware that the appellant had pleaded guilty and of the other mitigating factors.

[3] While the immigration consequences were briefly raised with the trial judge, because the offence is one for which a penalty of 10 years or more could be imposed, there was nothing the trial judge could do to avoid the immigration consequences.

[4] We note as well that the appellant has already served more than 6 months.

[5] We were advised that the appellant is still being held in custody as there appears to be an error in the warrant of committal. The judge’s notation on the indictment indicates that the sentence is 9 months less pre-trial custody which was 38 days, not 9 months after 38 days credit as shown on the warrant of committal. The warrant of committal is to be corrected to show the sentence as 9 months less 38 days.

[6] Leave to appeal sentence is granted, but, apart from the correction to the warrant of committal, the appeal is dismissed.