Court of Appeal

CASE NO.                                                  VOLUME                                                          PAGE

Cite as: R. v. Tsyganov, 1998 NSCA 227

SERGEY TSYGANOV                                                               HER MAJESTY THE QUEEN

                                                                        - and -

(Appellant)                                                                                                                (Respondent)

C.A.C.  No.  142953                            Halifax, N.S.                                         HALLETT, J.A.

APPEAL HEARD:                                        December 4, 1998

JUDGMENT DELIVERED:             December 18, 1998

SUBJECT:           Criminal Law - Sentencing - Second Degree Murder - Appeal from 19 years parole ineligibility fixed by trial judge

SUMMARY:        The appellant was convicted of second degree murder.  No recommendation from jury re: period of parole ineligibility.  The trial judge fixed the period at 19 years.

On appeal the offender submitted the trial judge erred in law in failing to take pre-trial custody of 18 months into account in fixing the period and that 19 years was excessive.  it was submitted 14 years would have been appropriate:

Held on Appeal - Section 719(3)  of the Criminal Code has no application with respect to considering the appropriate period of parole ineligibility.  In the absence of any express provision in s. 745(4) that the trial judge consider pre-trial custody in fixing the period of parole ineligibility, and in light of the express provision of s. 746 that gives a person sentenced to life credit for pre-trial custody in calculating the expiration of the parole ineligibility period, the sentencing judge did not err in failing to consider pre-trial custody.

In fixing a period of 19 years the trial judge considered the criteria established by s. 745.(4) of the Code.  Nineteen years is within an acceptable range.  Appeal dismissed.