R. v. Tmenov
Fresh evidence showed trial counsel did not appreciate the immigration consequences of enhanced pre-sentence custody credit; with Crown consent and under Pham and Nassri the court reduced the credit from 198 to 179 days and varied the sentence to a suspended sentence with two years' probation to avoid the...
Source-derived case information.
- Citation
- 2017 ONCA 454
- Parties
- Respondent: Her Majesty the Queen; Appellant: Tamerlan Tmenov
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 2 June 2017
- Procedural Posture
- Criminal Appeal / On Appeal From Sentence; Sentence Appeal Allowed
- Outcome
- Appeal allowed; sentence varied
- Legal Topics
- Pre Sentence Custody Credit, Deportation Consequences, Fresh Evidence, Joint Submission, Weapons Prohibition (s.109), DNA Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Tamerlan Tmenov
Appellant
Procedural Posture
Criminal Appeal / On Appeal From Sentence; Sentence Appeal Allowed
Legal Issues
- 1 Whether enhanced credit for pre-sentence custody should be reduced because it produced adverse immigration consequences
- 2 Whether fresh evidence that trial counsel failed to appreciate immigration consequences justifies appellate intervention
- 3 Whether the sentence should be varied to avoid collateral deportation consequences
Ratio Decidendi
Fresh evidence showed trial counsel did not appreciate the immigration consequences of enhanced pre-sentence custody credit; with Crown consent and under Pham and Nassri the court reduced the credit from 198 to 179 days and varied the sentence to a suspended sentence with two years' probation to avoid the deportation appeal bar.
Court Disposition
Appeal allowed; sentence varied
Orders
- Pre-sentence custody credit reduced to 179 days (originally 198 days)
- Sentence varied to a suspended sentence with two years' probation with credit for 179 days' pre-sentence custody
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Tmenov Collection Decisions of the Court of Appeal Date 2017-06-02 Neutral citation 2017 ONCA 454 Docket numbers C63054 Judges Cronk, Eleanore Ann; Blair, Robert Ashley; van Rensburg, Katherine Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tmenov, 2017 ONCA 454 DATE: 20170602 DOCKET: C63054 Cronk, Blair and van Rensburg JJ.A. BETWEEN Her Majesty the Queen Respondent and Tamerlan Tmenov Appellant Jacob Stilman, for the appellant Nadia Thomas, for the respondent Heard and released orally: May 29, 2017 On appeal from the sentence imposed on November 17, 2015 by Justice H. Chisvin of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant pleaded guilty to counts of break and enter to commit theft and break and enter with intent. After a joint submission he was sentenced to a suspended sentence with two years’ probation. The sentencing judge credited the appellant’s pre-sentence custody of 132 days at a rate of 1.5:1 resulting in a credit of 198 days. The result was that the appellant, who is a convention refugee, was ordered deported and, because he had received a custodial sentence greater than 180 days (as interpreted by certain decisions of the Federal Court) he is barred from appealing the deportation order. [2] The fresh evidence admitted on appeal with the consent of the Crown demonstrates that trial counsel did not appreciate the immigration consequences of attributing enhanced credit to the period of pre-sentence custody. As these consequences were not brought to the attention of the sentencing judge or taken into consideration in the appellant’s sentence, this court is entitled to intervene: R. v. Pham, 2013 SCC 15; R. v. Nassri, 2015 ONCA 316. [3] Accordingly, on consent of the Crown, the sentence appeal is allowed. The credit for pre-sentence custody is reduced by 19 days to 179 days. The appellant’s sentence is therefore varied to a suspended sentence with two years’ probation, with credit for 179 days’ pre-sentence custody. The s. 109 weapons prohibition and DNA order remain in place. “E.A. Cronk J.A.” “R.A. Blair J.A.” “K. van Rensburg J.A”