





CITATION: R. v. Gamble, 2011 ONCA 308



DATE: 20110419



DOCKET: C52650



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



David Gamble



Appellant



Kristin Bailey, for the appellant



Dena Bonnet, for the respondent



Heard: April 18, 2011



On appeal from the sentence imposed
          on June 28, 2010 by Justice J. Elliott Allen of the Ontario Court of Justice.



APPEAL BOOK ENDORSEMENT



[1]

The appellant pleaded guilty to attempt to break and enter, possession
    of property obtained by crime and possession of break-in instruments.  He was
    sentenced to two years less a day imprisonment and 3 years probation,
    concurrent on all three charges.

[2]

The primary issue on this appeal is whether the trial judge erred in
    principle in not giving the appellant any credit for five months of pre-trial
    custody.  The appellant acknowledges that a trial judge has discretion to
    decide what credit, if any, to give to time spent in pre-trial custody, but
    submits that existing jurisprudence is to the effect that trial judges should
    ordinarily give credit for pre-trial custody and should not deny credit without
    good reason.  The appellant submits that the trial judge stated only there
    will be no credit for dead time and gave no reasons for denying credit for
    pre-trial custody.

[3]

We agree that the trial judges reasons are deficient in this regard and
    that he therefore erred in principle.  Nevertheless, having regard to the
    appellants lengthy criminal record for offences of a similar nature and the
    fact that this offence was committed a scant two months after his statutory
    release for a similar offence, we are of the opinion that the sentence was not
    demonstrably unfit.

[4]

Accordingly while leave to appeal sentence is granted the appeal as to
    sentence is dismissed.


