Court of Appeal

                                NOVA SCOTIA COURT OF APPEAL

Citation: R. v. Benoit, 2007 NSCA 123

Date: 20071212

Docket:  CA 282476

Registry: Halifax

Between:

Her Majesty the Queen

Appellant

v.

Roland Chakono Benoit

Respondent

Judge:                   The Honourable Justice M. Jill Hamilton

Appeal Heard:      November 16, 2007        

Subject:                 Criminal Law; Sentencing

Summary:             The respondent received a conditional sentence for a robbery committed on a public bus.  The Crown appealed arguing the judge erred by reducing the appropriate range of sentence from 2 to 2 ½ years to less than 2 years, and hence bringing it within the conditional sentence regime, by giving Mr. Benoit credit for the time he spent on remand prior to trial.

Issue:           Did the judge err by taking into account the time spent on remand when determining the appropriate range of sentence, allowing consideration of a conditional sentence?  If so, what sentence should be imposed?

Result:                  Leave granted and appeal allowed.  A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time he spent on remand prior to trial; R. v. Fice, [2005] 1 S.C.R. 742.  The appropriate sentence is a term of imprisonment of two years commencing the date sentence was originally imposed giving Mr. Benoit credit on a one for one basis for the approximate six months he has already served on his conditional sentence.