R. v. Lombardo (C.A.), (2008) 269 N.S.R.(2d) 340 (CA)

• Judge: Bateman, Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: Friday October 10, 2008
• Jurisdiction: Nova Scotia
• Citations: (2008), 269 N.S.R.(2d) 340 (CA);2008 NSCA 97

R. v. Lombardo (C.A.) (2008), 269 N.S.R.(2d) 340 (CA);

    860 A.P.R. 340

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.042

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

(CAC 284073; 2008 NSCA 97)

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, in a decision reported at 269 N.S.R.(2d) 333; 860 A.P.R. 333, 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.

The Nova Scotia Court of Appeal denied leave to appeal the sentence for mischief.

Criminal Law - Topic 5890

Sentence - Mischief - [See Criminal Law - Topic 6211.1].

Criminal Law - Topic 6211.1

Sentencing - Appeals - Variation of sentence - Application for leave to appeal (incl. extensions) - Bars - Lombardo pled guilty to break and enter, possession of break and enter tools, possession of a stolen motor vehicle exceeding $5,000 and driving while prohibited - 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 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 denied leave to appeal the sentence for mischief - The court had no jurisdiction to hear a sentence appeal from a summary conviction matter - Lombardo ought to have appealed directly to the Nova Scotia Supreme Court under s. 813(a)(ii) of the Criminal Code - His right to appeal sentence to the Court of Appeal was derived under s. 839, which provided for an appeal, with leave, on a question of law alone from a decision of the Supreme Court on a s. 813 appeal.

Criminal Law - Topic 6222

Sentencing - Appeals - Variation of sentence - Jurisdiction - [See Criminal Law - Topic 6211.1].

Criminal Law - Topic 7472.1

Summary conviction proceedings - Appeals - General - Appeal from sentence - [See Criminal Law - Topic 6211.1].

Cases Noticed:

R. v. Bevis (K.C.) (2000), 188 N.S.R.(2d) 163; 587 A.P.R. 163; 2000 NSCA 125, refd to. [para. 14].

R. v. Diggs (K.J.) (2004), 226 N.S.R.(2d) 203; 714 A.P.R. 203 (C.A.), refd to. [para. 14].

Counsel:

Christopher Andrew Lombardo, self-represented;

Peter P. Rosinski, for the Crown.

This application 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.