COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Agil, 2014 ONCA 595
DATE: 20140818
DOCKET: C56882
Sharpe, Simmons and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Khumane Agil
Appellant
Edward Royle and Diana Lumba, for the appellant
Sean Doyle, for the respondent
Heard: August 15, 2014
On appeal from the sentence entered on February 6, 2013, by Justice A. Molloy of the Superior Court of Justice, sitting without a jury.
APPEAL BOOK ENDORSEMENT
[1] The Crown concedes that the trial judge erred by imposing a sentence of five and a half years for unlawful possession of a firearm under s. 91 of the Criminal Code, the maximum penalty being five years. Accordingly, it falls to this court to impose the appropriate sentence.
[2] In our view, the trial judge identified the appropriate aggravating and mitigating factors. When applied to the proper range for these offences, but for the fresh evidence as to the progress the appellant has made in prison, we would impose a sentence of four years. Given his success in the institution, a factor we are entitled to consider imposing the sentence today, we would reduce the four years to 45 months.
[3] The trial judge did not have the benefit of the Supreme Court of Canada’s decision in Summers as to the appropriate credit to be given for pre-trial custody. She did, however, gave some enhanced credit for the initial 141/2 months. For that period, the appellant is entitled to 1.5 to 1 credit for 24.25 months. In addition, he is entitled to 1 for one credit for the 201 day period for a total of 28 months credit. In the result, the sentence we impose is 17 months.
[4] Accordingly, leave to appeal sentence is granted, appeal allowed and sentence reduced to 17 months. The ancillary terms imposed by the trial judge are maintained.