·.,.-- --. Cite as: R. v. Benoit, 1970 NSCA 11 II 1969 s. Co No .. 14639
IN 7iiE SUl'RE}'£ COURT OF NOVA SCO~1A
APIEAL DIVISION
BE"lWEEN: HER M\JESTY TI1E QmEN Respondent - and FRANCIS JOSEPH BENOrt ApJ:1e llan\; McKINNONI C.J.NoS 0 : The app!llaot was sentenced by Ronald J. MacDcnald~ QoC •• a Judge ot the Provincial Magistrates Cour'~ tin AU8ust 27, 1969. aJG Baddeck, Nova Scotia, to a term of 1"'1ve yt?Qrs 0 1mprillo~nt p:t1r8Uani); to hill conViction on a cbarge contrary to sec1;l00 289 of the CrimiMl Owe; on the sane day I be was also sentenc~d by HiC\g:ls'crate MJ1~Donald to 6 t~rm ot three years' imprisonment pursuant to b1.s convi.ction on charges con trary to sections 292 (1) (b) and 296 (a) of the Crim.\nal Code CIt •.9_REildao ~be tbree-year sentenees were dir,!cted to be serv~11 eoncurrently with the t1 ve -year sentence referred to ab'),,'e and wlth ,(uilch other. cation by the appellant for leave ·to extend tJ:tt!l! to ap,peal. As no reasons were presentecl to this COllrt tor 'th~ apl,;J!ol bdr&g out of time, tbe Court denied leave to extend i~ime. Subsequently, on April 30.. 1970. ~he W.r~i.stt:'r ot Justiere. pursuant to subsection (b) ot section 596 of ~he ~riminul CodcJ rp.f~rr~d ~ the matter to thio Court tor hearing and det/!'l'rJJ.untlcm as if i t 'i-x~rf!' an 8ppa'81 by the appellant from 'the lJentences impo~p.d upt'n him al AI.1{>'llit ';t'(, . ~
. II ' " .. It 18 th~ opd.nion of the Court that lea\~ to extern t1,~ to appeal should be granted. After carefully consid~rlng the record before the Court, it is our opinion that the 8enten,~e of three yeara imposed for the infraction of s~ction 296 (a) E 'being b. excess of the maximum penalty provided by the Code, should be ql.Uashed. It is alao the opinion of the Court tbat the sentencel impoled tCilr infractions of section 292 (1) (b) and section :~89 of the Cod.~ lJiho'iild bi: varied to OIle year tor each offence ~ Members of ApPeal Division Fesent McKinnon, C.. J.N.SG Coffin 9 J oA • Cooper, J .A. COUDsel =;;eo .,. D, W. Thoms, Esq. Appellant Go So Gale, Esq. Reapoodent Halifax, Nova Scotia JUD~ 23 J 1970
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