Court of Appeal for Ontario

CITATION: R. v. Siconolfi, 2015 ONCA 896

DATE: 20151216

DOCKET: C59538

Doherty, Pepall and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sabrina Siconolfi

Appellant

Catriona Verner, for the appellant

M. Campbell, for the respondent

Heard and released orally: December 11, 2015

On appeal from the sentence imposed on September 6, 2013 by Justice Ian V.B. Nordheimer of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant pleaded guilty to criminal negligence causing death. On July 9, 2010, her two-year old daughter died of heat stroke from exposure to a hot environment. She had received multiple injuries which did not cause her death but compromised her health.

[2] The appellant acknowledged that she had care and control of her daughter in the days prior to her death and exclusive care of her between July 6 and 9. She also acknowledged that some of the injuries were caused by her.

[3] The appellant was sentenced to 6 years less 6 months’ credit for time served. She seeks leave to appeal her sentence.

[4] The appellant advances three grounds of appeal.

[5] First, she submits that the sentencing judge erred in his conclusions on the appellant’s beating of her child. We disagree. The sentencing judge found that the appellant beat her chid with her hands and with an object and that the beating occurred over the two to three days before the child’s death. Nothing in the appellant’s affidavit before the sentencing judge detracts from this finding. We would not give effect to this first ground of appeal.

[6] Secondly, the appellant submits that the sentencing judge erred in refusing to give any credit for pre-trial house arrest. For two and one half years, the appellant was under house arrest and could only leave her house with a surety. She states that her request for six months’ credit was reasonable.

[7] The sentencing judge was clearly alive to R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 205 C.C.C. (3d) 488 (Ont. C.A.). He considered the issue of credit and in the absence of any evidence on the impact of the bail terms on the appellant, he exercised his discretion to give the appellant no credit. We defer to that exercise of discretion.

[8] Thirdly, the appellant submits that the sentencing judge erred in his description of the sentencing range for criminal negligence causing death of a child as being in the mid-single digits to the low double digits. She argues that this was her first jail term and three years reflected the bottom of the range as reflected in R. v. Da Silva (2005), 2005 CanLII 46380 (ON CA), 203 C.C.C. (3d) 1 (Ont. C.A.), a case that lacked the mitigating factors present here.

[9] The sentencing judge noted that there was no clear range of sentence for the offence of criminal negligence causing death in the context of the death of a child and he did not establish one. Moreover, ranges are guidelines. The appellant had a high level of moral blameworthiness and her offence involved a vulnerable infant victim. The appellant was in an obvious position of trust, intentionally caused injuries to her child, and delayed getting medical attention for this two-year old. We see no reason to interfere with the sentence imposed.

[10] While the appellant has made some progress while in custody, there is nothing in the fresh evidence that would impact the fitness of the sentence rendered.

[11] The fresh evidence is admitted, leave to appeal sentence is granted and the sentence appeal is dismissed.

“Doherty J.A.”

“S.E. Pepall J.A.”

“M. Tulloch J.A.”