Court File and Parties
Court File No.: 1300292 Newmarket Ontario Court of Justice
Between: Her Majesty the Queen — and — David Michel Lanzillotta
Ruling on Application to Vary Intermittent Sentence
Heard: April 3, 2014
Counsel:
- Ms. Jean Kim, for the Crown
- Ms. DiGiuseppe, for the Applicant
KENKEL J.:
Introduction
[1] On February 4, 2014 Mr. Lanzillotta pleaded guilty to assault and failing to comply with terms of bail. He was sentenced to 81 days to be served intermittently. The applicant advises that on February 7, 2014 Mr. Lanzillotta was arrested on charges of criminal harassment, breach of probation and breach of recognizance. On February 11th he was ordered detained. He was released on March 31, 2014 following a bail review.
[2] While detained on his new charges the weekends were credited towards his outstanding sentence but the remaining days were not. Mr. Lanzillotta now applies to have his intermittent sentenced reduced to take into account the time served in relation to other charges until he was granted bail. The new charges are still before the courts.
[3] I'm not satisfied that I have the power to reduce the sentence originally imposed to accommodate time served with respect to other offences. The power to vary intermittent sentences appears limited to the circumstances set out in s. 732 of the Criminal Code. Even if such a variation were possible I would not grant that remedy in this case in any event.
[4] Upon his arrest for new charges Mr. Lanzillotta had a choice to make. He could have applied to have his intermittent sentence converted to straight time pursuant to s. 732(2) of the Criminal Code. Mr. Lanzillotta chose not to make that application in this case and he remained available for release at his bail hearing and at his bail review when release was granted. Mr. Lanzillotta made a tactical choice to remain eligible for release and he obtained the benefit of that choice. There's no reason now for this court to interfere even if there were power to do so.
[5] The application is dismissed.
Released: 3 April, 2014
Justice Joseph F. Kenkel