R. v. Lombardo (C.A.), 2008 NSCA 96

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Bateman, Saunders and Oland, JJ.A.
• Citation: 2008 NSCA 96,(2008), 269 N.S.R.(2d) 333 (CA)
• Date: 10 October 2008

R. v. Lombardo (C.A.) (2008), 269 N.S.R.(2d) 333 (CA);

    860 A.P.R. 333

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.041

Christopher Andrew Lombardo (appellant) v. Her Majesty the Queen (respondent)

(CAC 283947; 2008 NSCA 96)

Indexed As: R. v. Lombardo (C.A.)

Nova Scotia Court of Appeal

Bateman, Saunders and Oland, JJ.A.

October 17, 2008.

Summary:

Lombardo pled guilty to break and enter (s. 348(1)(b) of the Criminal Code), possession of break and enter tools (s. 351(1)), possession of a stolen motor vehicle exceeding $5,000 (s. 354) and driving while prohibited (s. 259(4)).

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, sentenced Lombardo to two years' imprisonment for break and enter with concurrent sentences of one year (possession of a stolen vehicle), 60 days (driving while prohibited) and three months (possession of break and enter tools). Subsequently, Lombardo pled guilty to mischief (s. 430(4)).

The Nova Scotia Provincial Court, in a decision not reported in this series of reports, sentenced Lombardo to 30 days' imprisonment, consecutive to his previous two year sentence. Lombardo sought leave to appeal both sentences, asserting that the addition of the 30 day sentence led to an aggregate sentence of 25 months that made the imposition of 18 months of probation illegal.

The Nova Scotia Court of Appeal allowed the appeal regarding the first sentence. A number of errors obliged the court to intervene. However, the aggregate sentence was not unfit. In order to "save" the 30 days consecutive sentence imposed for mischief, the court varied the sentence as follows: six months for break and enter, six months consecutive for possession of break and enter tools, six months consecutive for possession of stolen property and five months consecutive for driving while prohibited, followed by 18 months' probation.

Editor's note: for the companion decision denying the accused's application for leave to appeal the second sentence, see 269 N.S.R.(2d) 340; 860 A.P.R. 340.

Criminal Law - Topic 5851

Sentence - Break and enter - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5862

Sentence - Possession of stolen goods or good obtained by crime - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5870

Sentence - Possession of break-in instruments - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 5885

Sentence - Driving while disqualified or suspended - [See Criminal Law - Topic 6203 ].

Criminal Law - Topic 6203

Sentencing - Appeals - Variation of sentence - Grounds for varying sentence imposed by trial judge - Lombardo pled guilty to break and enter (s. 348(1)(b) of the Criminal Code), possession of break and enter tools (s. 351(1)), possession of a stolen motor vehicle exceeding $5,000 (s. 354) and driving while prohibited (s. 259(4)) - He was sentenced to two years' imprisonment for break and enter with concurrent sentences of one year (possession of a stolen vehicle), 60 days (driving while prohibited) and three months (possession of break and enter tools) - Subsequently, Lombardo pled guilty to mischief (s. 430(4)) and was sentenced to 30 days' imprisonment, consecutive to his previous two year sentence - Lombardo sought leave to appeal both sentences, asserting that the addition of the 30 day sentence led to an aggregate result that made the imposition of 18 months of probation illegal - The Nova Scotia Court of Appeal allowed the appeal regarding the first sentence - As the Crown had elected to proceed summarily regarding the s. 348(1) offence, the maximum sentence that was available was six months' imprisonment - The two year sentence on that offence was unlawful, as was the one year sentence regarding s. 354 - A further problem arose regarding s. 351(1), which was a straight indictable offence, yet it appeared that all of the matters were processed summarily - The cumulative effect of the errors obliged the court to intervene - However, the total sentence was not unreasonable - In order to "save" the 30 days consecutive sentence imposed for mischief, the court varied the sentence as follows: six months for break and enter, six months consecutive for possession of break and enter tools, six months consecutive for possession of stolen property and five months consecutive for driving while prohibited, followed by 18 months' probation - Leave to appeal the 30 day sentence was denied.

Criminal Law - Topic 6221

Sentencing - Appeals - Variation of sentence - Probation - [See Criminal Law - Topic 6203 ].

Cases Noticed:

R. v. Steeves (M.W.) (2007), 261 N.S.R.(2d) 76; 835 A.P.R. 76; 2007 NSCA 130, refd to. [para. 22].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 25].

R. v. L.M. (2008), 374 N.R. 351 (S.C.C.), refd to. [para. 25].

R. v. Cromwell (Y.M.) (2005), 238 N.S.R.(2d) 17; 757 A.P.R. 17 (C.A.), refd to. [para. 25].

R. v. Hatch (1979), 31 N.S.R.(2d) 110; 52 A.P.R. 110 (C.A.), refd to. [para. 25].

Counsel:

Christopher Andrew Lombardo, self-represented;

Peter P. Rosinski, for the Crown.

This appeal was heard at Halifax, Nova Scotia, on October 10, 2008, by Bateman, Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. On October 17, 2008, Saunders, J.A., delivered the following reasons for judgment for the court.