R. v. Gidillini
The Court held that the two robberies were sufficiently strikingly similar to permit the evidence on each count to be considered on the other counts for identity; although the trial judge's instruction on similar fact evidence was imperfect, it did not prejudice the appellant or mislead the jury, so the convictions...
Source-derived case information.
- Citation
- C39674
- Parties
- Appellant: Maurizio Gidillini; Respondent: Her Majesty the Queen
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 13 January 2006
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence (court of Appeal Decision)
- Outcome
- Conviction appeal dismissed; sentence appeal allowed in part and sentence varied
- Legal Topics
- Similar Fact Evidence, Identity, Jury Instructions, Manifestly Excessive Sentence, Pre Trial Custody Credit, Minimum Mandatory Sentence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurizio Gidillini
Appellant
Her Majesty the Queen
Respondent
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence (court of Appeal Decision)
Legal Issues
- 1 Whether the trial judge properly allowed evidence from each robbery to be considered on the other counts for the purpose of identifying the accused (similar fact evidence)
- 2 Whether the trial judge's jury instruction on similar fact evidence was misleading or prejudicial
- 3 Whether the sentence imposed was manifestly excessive and required reduction in light of the appellant's background and pre-trial custody credit
Ratio Decidendi
The Court held that the two robberies were sufficiently strikingly similar to permit the evidence on each count to be considered on the other counts for identity; although the trial judge's instruction on similar fact evidence was imperfect, it did not prejudice the appellant or mislead the jury, so the convictions were upheld; however, the ten year sentence was manifestly excessive given the appellant's background and first jail term, and the sentence was reduced to concurrent five year terms with credit for three years pre-trial custody (effective eight years).
Court Disposition
Conviction appeal dismissed; sentence appeal allowed in part and sentence varied
Orders
- Conviction appeal dismissed
- Sentence appeal allowed in part
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Gidillini Collection Decisions of the Court of Appeal Date 2006-01-13 Docket numbers C39674 Judges Doherty, David H.; Sharpe, Robert J.; Juriansz, Russell G. Subject Criminal Decision Content DATE: 20060112 DOCKET: C39674 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. MAURIZIO GIDILLINI (Appellant) BEFORE: DOHERTY, SHARPE and JURIANSZ JJ.A. COUNSEL: Jennifer Gleitman for the appellant Susan Magotiaux for the respondent HEARD & ENDORSED: January 10, 2006 On appeal from the conviction entered by Justice G.I. Thomson of the Superior Court of Justice, sitting with a jury, dated December 10, 2001 and the sentence imposed dated June 21, 2002. APPEAL BOOK ENDORSEMENT [1] The trial judge did not err in holding that the evidence on each count could be considered on the other counts on the issue of identity. The circumstances surrounding the two robberies provided ample basis for a finding of “striking similarity”. [2] While it would have been better had the trial judge followed the language used by Cory J. in R. v. Arp when instructing the jury on similar fact evidence, we are satisfied that the trial judge’s language, while somewhat confusing, did not prejudice the appellant or mislead the jury. [3] The conviction appeal is dismissed. [4] The trial judge imposed sentencing totalling seven years in addition to the equivalent of three years pre-trial custody. The appellant had never been to jail before these convictions. He has a most unfortunate background. The sentence imposed by the trial judge exceeded by one year the range suggested by the Crown. The offences were serious and as indicated by the four year minimum provided for in the Criminal Code, required lengthy sentences. The sentence (10 years) imposed was, however, manifestly excessive given the appellant’s background and the fact that this was the appellant’s first jail term. [5] We would allow the sentence appeal and vary the sentence to five years concurrent on each count resulting in a total sentence equivalent to eight years having regard to the three years pre-trial custody.