



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Tmenov, 2017 ONCA 454

DATE: 20170602

DOCKET: C63054

Cronk, Blair and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tamerlan Tmenov

Appellant

Jacob Stilman, for the appellant

Nadia Thomas, for the respondent

Heard and released orally: May 29, 2017

On appeal from the sentence imposed on November 17, 2015
    by Justice H. Chisvin of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to counts of break and enter to commit
    theft and break and enter with intent. After a joint submission he was
    sentenced to a suspended sentence with two years probation. The sentencing
    judge credited the appellants pre-sentence custody of 132 days at a rate of
    1.5:1 resulting in a credit of 198 days. The result was that the appellant, who
    is a convention refugee, was ordered deported and, because he had received a
    custodial sentence greater than 180 days (as interpreted by certain decisions
    of the Federal Court) he is barred from appealing the deportation order.

[2]

The fresh evidence admitted on appeal with the consent of the Crown
    demonstrates that trial counsel did not appreciate the immigration consequences
    of attributing enhanced credit to the period of pre-sentence custody. As these
    consequences were not brought to the attention of the sentencing judge or taken
    into consideration in the appellants sentence, this court is entitled to
    intervene:
R. v. Pham
,
2013 SCC 15;
R. v. Nassri
, 2015 ONCA 316.

[3]

Accordingly, on consent of the Crown, the sentence appeal is allowed.
    The credit for pre-sentence custody is reduced by 19 days to 179 days. The
    appellants sentence is therefore varied to a suspended sentence with two
    years probation, with credit for 179 days pre-sentence custody. The s. 109
    weapons prohibition and DNA order remain in place.

E.A.
    Cronk J.A.

R.A.
    Blair J.A.

K. van
    Rensburg J.A


