COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ferdinand, 2016 ONCA 353
DATE: 20160509
DOCKET: C60638
Cronk, Juriansz and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Khamidi Ferdinand
Appellant
Carol Cahill, for the appellant
Katie Doherty, for the respondent
Heard and released orally: May 5, 2016
On appeal from the sentence imposed on May 3, 2011 by Justice Robert Kelly of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant pleaded guilty to robbery with a firearm, unlawful confinement and two other firearms offences arising out of his participation with another armed man in a brazen home invasion. He received a cumulative sentence of 8 years, which the sentencing judge reduced by 9.5 months for the time the appellant had spent in pre-disposition custody. The net sentence was one of 86.5 months in the penitentiary.
[2] In sentencing submissions, trial counsel for the appellant sought enhanced credit of 1.5 days for each day spent in pre-disposition custody. The appellant had sought, but could not obtain counselling programs, had been incarcerated in a facility with substantial periods of lockdowns and had earned no remission.
[3] The trial judge, who did not have the benefit of either the decision of this court in R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641, or that of the Supreme Court of Canada in the same case, R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, rejected counsel’s submission for enhanced credit. In this court, the respondent acknowledges that, under Summers, the appellant was entitled to the enhanced credit he sought for pre disposition custody.
[4] We agree.
[5] In the result, leave to appeal sentence is granted, the appeal from sentence is allowed, and the cumulative sentence of 8 years is varied to reflect an additional 143 days credit for pre-disposition custody. This results in a net sentence of 8 years, less 428 days credit for pre-disposition custody. The remanet is a sentence of 6 years, 302 days.
“E.A. Cronk J.A.”
“R.G. Juriansz J.A.”
“David Watt J.A.”