R. v. Izzard, 2013 NSCA 88

Nova Scotia Court of Appeal Citation: R. v. Izzard , 2013 NSCA 88 Date: 20130719 Docket: CAC 405193 Registry: Halifax Between: Thomas Anthony Izzard Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Beveridge and Farrar, JJ.A. Appeal Heard: June 13, 2013, in Halifax, Nova Scotia Held: Appeal from conviction is dismissed and leave to appeal from sentence is granted and the appeal is dismissed, per reasons for judgment of Beveridge, J.A.; Saunders and Farrar, JJ.A. concurring. Counsel: Appellant in person Timothy S.

O’Leary, for the respondent Reasons for judgment: INTRODUCTION [ 1 ] Residences and outbuildings at four cottage properties were broken into by a group of men. The premises were ransacked and property stolen. Mr. Izzard, the appellant, was present throughout. Although he did not testify, he argued at trial that the evidence did not prove he had committed any offence. He said it showed that he tried to dissuade the others from doing so. [ 2 ] Nonetheless, the trial judge convicted him of break and enter with intent to commit theft into one of the four residences, and breach of probation.

The judge sentenced the appellant to two years’ incarceration, after taking into account the 375 days he had spent in pre-sentence custody. [ 3 ] Unfortunately for the appellant, he represented himself at trial. I say it was unfortunate because tactical decisions were made by him during the trial that proved to be, let’s say, unwise. [ 4 ] The appellant also represented himself on this appeal. He appeals from both conviction and sentence.

The appellant filed three documents that describe how he says the trial judge erred: the Notice of Appeal; a July 27, 2012, eight page letter setting out his reasons for the appeal; and his factum dated April 15, 2013. [ 5 ] From these materials the Crown suggests that the appellant’s complaints of error can be distilled into the following: 1. Was the Trial Judge’s verdict unreasonable or not supported by the evidence? 2. Did the Trial Judge misapprehend the evidence of Mr. Brannan?

3. Did a miscarriage of justice result when the Trial Judge considered Mr. Brannan’s voir dire evidence as part of the trial evidence? 4. Was the sentence unfit? [ 6 ] At the hearing of the appeal, the appellant confirmed that the Crown’s distillation of his complaints is appropriate. Before addressing these issues, I will set out, by way of background, the course of the proceedings in Provincial Court, the evidence at trial, and the essence of the trial judge’s decision. BACKGROUND [ 7 ] The appellant, his two brothers, Emmanuel and Isaiah, Shane Brannan and Christopher Rushton were arrested and charged on separate informations with five counts of break, enter and commit theft ( s. 348(1) (

b) of the Criminal Code ) in relation to four properties located on MacLaren Road in Pictou County. All accused were released pending trial. [ 8 ] The appellant had counsel. The appellant’s bail was revoked in October 2010 due to other alleged offences. His trial was set to commence January 12, 2011. It did not go ahead because his lawyer felt compelled to withdraw. Despite the repeated urging of the trial judge, the Honourable Judge Richard J. MacKinnon, the appellant did not get counsel. [ 9 ] The trial commenced on June 15, 2011.

The trial did not conclude until May 3, 2012, the day the trial judge delivered his oral reasons (unreported). There is no need to detail the long and winding path of the trial proceedings. The major milestones will suffice. [ 10 ] At the outset of the trial, the Crown called the four property owners who described the damage to their respective properties and the items that had been stolen. There were photographs of three of the properties taken by the police that illustrated what some of the owners described. In addition, there were prints of digital pictures taken by a motion activated trail camera.

These pictures were in black and white, and of poor quality. They showed a number of male individuals around one of the cottages. [ 11 ] The Crown subpoenaed all of the appellant’s accomplices. Only two ended up testifying, Shane Brannan and Christopher Rushton. Mr. Brannan had pled guilty to all of the break and enter charges, and had been sentenced to 30 months’ incarceration. [ 12 ] The first to testify was Mr. Brannan. His evidence was initially not of much help to the Crown in terms of establishing that the appellant committed or was a party to the break and enters.

He testified that he, the appellant, Emmanuel, Isaiah and Christopher Rushton all “went for a drive” in Mr. Rushton’s red Aztec (a small SUV). They smoked some joints and talked about money matters. The “idea got thrown around out there of robbing a few places”. A couple of people were “iffy about it”. One of these people was the appellant. With respect to the first cottage, he said he was “pretty sure” he saw him around the place, but did not say he went in or did anything. [ 13 ] Mr. Brannan did testify that the appellant entered one of the cottages.

Due to a number of pieces of circumstantial evidence, it is clear that, and the trial judge found, the civic address for this cottage was 174 MacLaren Road. The trial judge convicted the appellant with respect to the break and enter at this location. [ 14 ] Mr. Brannan said he was in a back bedroom. He said the appellant was in the doorway, and asked him if he had found anything. Mr. Brannan said “No” but then saw a bottle of rum. He said he didn’t “really see” the appellant take anything.

He wasn’t sure whether the appellant had loaded things into the SUV —he thought the appellant might have seen him help Emmanuel Izzard loading something into the vehicle. [ 15 ] Mr. Rushton told a different story about the number of trips to the cottage locations and his role in what happened. The inconsistencies are not important since it is clear he said nothing that implicated the appellant in any offence. [ 16 ] The Crown sought to introduce recorded statements given by the appellant on the day of his arrest. Initially, the appellant said he had no problem with his statements “going in”.

The Crown and the trial judge detected a lack of clarity in some of the appellant’s responses. A voir dire was held to determine if the statements were free and voluntary. [ 17 ] Before the voir dire started, the Crown proposed that the evidence the trial judge would be hearing on the voir dire be adopted without repetition as trial evidence. The proposal was explained to the appellant by the trial judge. Given the appellant’s response, the judge decided that the issue of adopting the voir dire evidence would be re-visited once Mr.

Izzard had heard the voir dire evidence. [ 18 ] The examinations conducted by the Crown and the appellant with respect to the three police officers called by the Crown on the voir dire were considerably broader than just matters relevant to the admissibility of the appellant’s statements. [ 19 ] The Crown closed its case on the voir dire on June 29, 2011. If the evidence were to be adopted as part of the trial, no further witnesses would be called by the Crown. Proceedings were adjourned to August 19, 2011.

The appellant wanted to know how to subpoena Emmanuel and Isaiah Izzard, as well as Shane Brannan. [ 20 ] On August 19, 2011 all three of these potential witnesses were present. Mr. Izzard asked for an adjournment before asking any more questions so that he could be properly prepared. Proceedings recommenced on October 14, 2011. The trial judge suggested that he would like to watch the recorded statements rather than rely on the transcript. This was done. [ 21 ] The appellant then called Shane Brannan as his witness on the voir dire .

It was obvious from the very first question asked by the appellant that the evidence he wanted to get from Mr. Brannan had little or no bearing on the admissibility of his statements. It had

to do with what did or did not happen on the night of the breaks. The Crown objected. The trial judge agreed the evidence may not be strictly relevant, but permitted the appellant to proceed with his examination. [ 22 ] Things started well. Mr. Brannan said he couldn’t say the appellant was in any of the cottages, and recounted the appellant’s objections to even being there: “So, like, I’d have to say you had, like, very little involvement in this. Like, you had objections to being even involved.

I don’t know what else I could add to that right now.” The problem for the appellant is that add he did. [ 23 ] With respect to the very first cottage broken into (at 121 MacLaren Road), Mr. Brannan said this: Q. All right. So Chris Rushton is someone you noticed to first [go] into the cottage. Okay. Can you tell me exactly how things started to unfold from there? A. Well, basically I entered. I seen a TV. I took the TV out.

And then after that, when I went to go back, there was just, like, stuff in the porch, like, piled up, and people were just grabbing the stuff out of the porch . [Emphasis added] [ 24 ] Who those “people” were who were grabbing stuff out of the porch was clarified by the appellant in his ensuing examination: Q. What did -- what did you mean by grabbing things? A.

Well, when I got back after putting the TV into the vehicle, there was just -- there was things already piled into the porch and people were just picking them up out of the porch and then going to the vehicle, putting them in the vehicle and coming back, and more things would be in the porch waiting for them. Q. Okay. Can you -- can you state who those -- who -- can you state what people that were with you that day that were going to the porch and grabbing things? A. There was me, Emmanuel Izzard and you. Q. Can you -- can you tell me what I -- where Isaiah may have been? A. He was down at the vehicle. Q.

What was he doing down at the vehicle? A. Basically watching the vehicle. Making sure that, you know, no one came around. Basically keeping six. [Emphasis added] [ 25 ] After a lengthy direct examination, the Crown cross-examined Mr. Brannan. On the issue of his evidence about seeing the appellant in the bedroom doorway of 174 MacLaren Road, the following exchange occurred: Q. The question was if you found anything, right? A. Yes. Q. And that was in a -- in a -- in a doorway at one of the bedrooms inside one of the residences? A. Yes. Q. Okay. And Mr. Izzard had assisted in moving items and loading up the truck?

A. From -- yes. From... Q. At any point, right. A. Yeah. Q. So... A. Items were brought out and he put them in. Q. And Mr. Izzard helped with that? … Q. I want to know on October 7th, 2009, at any of the places that were broken into – I’m suggesting to you that Mr. Izzard assisted in loaded[ sic ] up the vehicle with items? A. Yes. He put items into the vehicle. Q. Right. And those are items that were taken from the cottages or the surrounding buildings? A. The items -- yes. The items were taken from the cottages...

Q. Right. A. ...and then Mr. Izzard put them into the vehicle. [ 26 ] The train wreck was not quite over. In re-direct examination, the appellant persisted in this line of questioning. He asked why would he have put things into the SUV. This question was disallowed. He then continued: Q. Can you state where that was? A. That you put stuff into the vehicle? Q. Yeah. A. There -- the first cottage there with the camera, you -- the stuff was in the porch, and you went as far -- well, you grabbed the stuff out of the porch and put it into the -- into the vehicle.

And then the other places, as the stuff was brought out of the cottages -- out of the cottages, it was handed to you and your brother Isaiah, and it was -- you guys put it into the vehicle. [Emphasis added] [ 27 ] The voir dire proceeding was adjourned from time to time. On March 30, 2012 Mr. Izzard was given a further opportunity to call evidence, including himself. The appellant knew he could call himself as a witness, but reasoned that “All I can do is confirm what somebody else has already testified”. Arguments were made on whether the statements were free and voluntary.

In addition, the trial judge raised the issue of a possible violation of the appellant’s right to counsel under s. 10(

b) of the Canadian Charter of Rights and Freedoms . The trial judge reserved his decision until later in the day. Before recessing, he also raised the issue of what to do with the evidence that had been elicited during the voir dire . [ 28 ] The judge made this inquiry of the appellant: THE COURT: Mr. Izzard, you referred in your submissions to the evidence of Shane Brannan, and that evidence was called by you on the voir dire . And during the course of Mr. Brannan’s testimony, he also testified and you elicited testimony from him that also goes to the issue of whether or not you’re guilty of the offence.

You were asking him questions about what happened on the date of the alleged offences. And so I have to ask you this question, do you want the evidence that was heard on the voir dire to apply on the trial as well? [ 29 ] Based on the exchange that followed, Mr. Izzard said he understood that if he consented then the evidence from the voir dire , including that of Shane Brannan, would be considered as part of the trial evidence without the necessity of having to bring Mr. Brannan back to court.

The appellant said it would be better to have it “brought in”. [ 30 ] The trial judge subsequently ruled the appellant’s statements to the police to be free and voluntary, but nonetheless excluded them pursuant to s. 24(2) of the Charter because he found that the appellant’s right to counsel guaranteed by s.10(

b) had been infringed or denied. [ 31 ] The Crown then re-called a police officer to speak to the probation order that Mr. Izzard had been on, and to introduce the photographs of the various cottages. This evidence ended the Crown’s case. [ 32 ] The trial judge asked the appellant if he wished to call any further evidence, including himself. He offered a recess so that he could think about it. The appellant had one question. He wanted confirmation that because of the “how the trial inside a trial would be carried over” (the voir dire ), he wouldn’t have to call Shane Brannan. The judge said he was correct.

At this, the appellant announced that he would not present any further evidence. He even explained why: MR. T. IZZARD: And I find -- I find him [Shane Brannan] to be the most credible one, so there’s just no point in really dragging more in, so I find that I’ve been able to get what it is that I wanted. [ 33 ] Submissions were made. The judge reserved his decision until May 3, 2012.

On that date, he delivered oral reasons in which he reviewed the evidence, set out the law with respect to parties to offences and sections 348 (break and enter) and 733.1 (breach of probation) of the Criminal Code . [ 34 ] Despite hearing evidence of the apparent friendship between Mr. Brannan and the appellant, and multiple meetings where they, and others, reviewed Crown disclosure materials, he gave himself a “ Vetrovec ” warning: that is, it would be dangerous to convict based on the evidence of Mr. Brannan since his evidence may be untrustworthy or unreliable. [ 35 ] The trial judge found that Mr.

Brannan’s testimony was designed to protect Mr. Izzard, or to say as little as possible that would be harmful for him. This conclusion is amply supported by the record. The trial judge also made a number of key findings of fact. They are as follows: Mr. Shane Brannan also testified that Mr. Izzard put items in the vehicle that they were using, the Aztec motor vehicle that belonged to Christopher Rushton’s wife. He said this immediately after being cross-examined about seeing Mr. Izzard in one of the cottages. I, therefore, conclude that his testimony with respect to Mr.

Izzard putting items in the vehicle was with respect to 174 MacLaren Road as well. …

I come to the conclusion that I accept Mr. Brannan’s evidence to the effect that Thomas Izzard was inside one of the residences, thatbeing 174 MacLaren Road. ... Because of his evidence about Mr. Izzard loading something in the vehicle on both occasions being given at exactly the same time whenhe was testifying about Mr. Izzard being in one cottage, I conclude that when Mr. Izzard was seen by Mr. Brannan loading things intothe vehicle, it was at the same location where he observed Mr. Izzard inside the cottage, and I accept his testimony as well about seeingMr.

Izzard load something into the vehicle at 174 MacLaren Road. That is consistent with seeing Mr. Izzard in that particular cottage. [36] This led the judge to say he found the Crown had proved beyond a reasonable doubt that the appellant did break and enter thecottage at 174 MacLaren Road. For reasons that are not entirely clear to me, he amended the information, on his own motion, in order,so he said, for it to conform with the evidence so that it would read, “ with intent to commit an indictable offence therein, contrary tosection 348(1)(

a) of the Criminal Code.” On the remaining break and enter charges, he acquitted the appellant. He convicted theappellant on the charge of breach of probation for failing to keep the peace and be of good behaviour. [37] I will now address the complaints of the appellant. WAS THE VERDICT UNREASONABLE; AND DID THE JUDGE MISAPPREHEND THE EVIDENCE OF MR.

BRANNAN? [38] It is convenient to address these complaints together since there is a logical connection between them – both mandate anexamination of the trial record and reasons for judgment. [39] To test if a verdict is unreasonable or cannot be supported by the evidence, an appellate court must re-examine, and to someextent, re-weigh the evidence, and consider its effect. The question to be answered is: whether the verdict is one that a properlyinstructed jury, acting judicially, could reasonably have rendered.

An appellate court may also find a verdict unreasonable if a trial judgehas drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied upon by thejudge in support of the inference or finding; or is shown to be incompatible with evidence that is not contradicted or rejected by the trialjudge (R. v R.P., 2012 SCC 22 at para. 9). [40] To obtain a remedy on appeal based on an allegation that a trial judge misapprehended the evidence, the appellant must showtwo things: first, that the trial judge, in fact, misapprehended the evidence – that is, she failed to consider evidence relevant to a materialissue, was mistaken as to the substance of the evidence, or failed to give proper effect to evidence; and second, that the judge’smisapprehension was substantial, material and played an essential

part in the decision to convict (see R. v. Schrader, 2001 NSCA 20; R.v. Deviller, 2005 NSCA 71; R. v. D.D.S., 2006 NSCA 34). [41] The appellant does not identify any claimed mistake as to the substance of any of the evidence that the trial judge relied uponto convict. Instead, he argues that the judge should have found a reasonable doubt about his intent in entering 174 MacLaren Road onthe basis of Mr.

Brannan’s evidence that the appellant did not want to be there; he had “very little involvement” and “objected to beinginvolved”. [42] He also complains that that the trial judge misapprehended the evidence when he “speculated” that Mr. Brannan tried toprotect the appellant when he testified. However, this was a finding by the trial judge, not speculation. The trial judge observed Mr.Brannan testify, and took note of his varied descriptions of the appellant’s actions and statements during the evening of October 7, 2009. There is no basis to conclude that the trial judge misapprehended the evidence.

To the contrary, the trial judge’s finding is fullysupported by the record. [43] It cannot be gainsaid that a trier of fact can accept some, all or none of a witness’s testimony. Here, Mr. Brannan testifiedthat the appellant was in the doorway to the back bedroom of 174 MacLaren Road. Having entered, the law presumes the appellant tohave had the intent to commit an indictable offence (s. 348(2)(

a) and s. 350). The appellant did not testify. [44] The evidence at trial did not provide “evidence to the contrary”. In fact, it supported an inference that he not only intended tocommit the indictable offence of theft, but was actually a party to that offence. Inside 174 MacLaren Road, the appellant asked Brannan“ if he had found anything”.

Furthermore, the trial judge found that the appellant loaded items stolen from 174 MacLaren Road into theSUV. [45] Having made these findings, which were fully supported by evidence, the only question that comes to my mind, is why didthe trial judge only find the appellant guilty of the lesser and included offence of break and enter with the intent to commit an indictableoffence (s. 662 of the Criminal Code) rather than the full offence? I have no ready answer. The judge did not provide one.

If this wasan error, it was in the appellant’s favour. [46] A properly instructed jury could reasonably find that the appellant had entered the cottage at 174 MacLaren Road with theintent to steal or help steal. As Farrar J.A. explained in R. v. Shea, 2011 NSCA 107, it is not our role to re-intrepret trial evidence andadopt alternative

interpretations of the evidence: [23] Only Shea argues that the verdicts are unreasonable or not supported by the evidence. With respect, this argument is nothing morethan an articulation of alternative potential

interpretations of certain pieces of evidence. The question is not whether the conviction wasthe only reasonable verdict; the question is whether it was a reasonable verdict. R. v. Portillo (2003), (ON CA), 174O.A.C. 226, ¶ 51. [47] There is no fatal flaw in the verdict. It was not one that was plainly contradicted by the evidence or incompatible with theevidence not otherwise contradicted or rejected. I would not give effect to these complaints of error. WAS THERE A MISCARRIAGE OF JUSTICE?

[48] There is no disputing that it was unusual for the appellant to have called a former Crown witness during a voir dire, held todetermine admissibility of an accused’s statements, and then to have that witness’s testimony form part of the trial evidence. But thisbegs the question: did this unusual procedure result in a miscarriage of justice? [49] I accept the Crown’s submission that a procedural or substantive error will result in a miscarriage of justice if the error led toa denial of a fair trial (see R. v.

Khan, 2001 SCC 86 at para. 27). [50] The record from the trial proceedings plainly shows that the appellant wanted to have Shane Brannan recalled during thetrial. He had testified as a Crown witness on June 15, 2011. A voir dire had been commenced. It was to be adjourned from June 29,2011 to August 19, 2011. Before the proceedings concluded on June 29, the appellant made clear his views: MR. T. IZZARD: I would like to -- like, I mean, I’m not a lawyer.

I don’t really know necessarily how to subpoena somebody, but Iwould like to have Isaiah Izzard and Emmanuel Izzard and, if possible -- like, Shane Brannan already took the stand. Can you just helpme out here? Shane Brannan already took the stand, and I totally left out quite a few things to question him. I didn’t have work -- I kindof was off my head, top of my head that day. I came back this time with some -- you know, I’m a little bit more prepared. I tried.

And Iwould just kind of to like ask maybe Shane Brannan a few more questions, if possible, on that date. [51] I have earlier set out what evidence was obtained by the appellant and by the Crown when the appellant called Mr. Brannanas his witness during the voir dire. I have also set out the substance of the exchanges between the trial judge and the appellant where theappellant decided that he wanted to have Mr. Brannan’s evidence as part of the trial. This was his tactical decision to make. [52] The appellant relied heavily on the evidence of Mr.

Brannan in his submissions to the trial judge as to why he should not befound guilty of any offence. The problem is that while Mr. Brannan did give evidence that was helpful to the appellant, he also gaveevidence that was inculpatory. The appellant appears to have realized how Brannan’s evidence might be used by the trial judge to hisdetriment. Nonetheless he wanted the trial judge to be able to consider Brannan’s evidence.

In his July 27, 2012 letter to the Court, hewrote: First off I’d like to make a note worthy point about Shane Brannan’s testimony given during my trial inside a trial, that being, after thetrial inside my trial was done and awarded to the Defence, I was ask if I want the testimony of Shane Brannan use as trial evidence ratherthan do it all over again. I seen no use in that since it would prolong things, I also knew that Shane wasn’t willing to do it again becausehe was tired of it so I decided to allow this.

I like to point out that at that moment I knew the Crown would have no case if I chose not to allow the defence witness testimonyto carry through which would place me there, but I wanted to prove my case and win it on the evidence provided by Mr.Brannan which shows a different Thomas Izzard… [Emphasis added] [53] The appellant is probably correct – absent the evidence adopted from the voir dire, a conviction on any offence wasunlikely. But adoption of the voir dire evidence as part of the trial did not result in an unfair trial for the appellant.

The appellant hadmade it clear to the trial judge that he wanted to have Mr. Brannan recalled for further questioning. The judge permitted this. Theappellant made a further tactical decision to adopt Mr. Brannan’s evidence from the voir dire as part of the trial evidence. He says heknew the weakness of the Crown’s case without the evidence of Mr. Brannan. It may have been an unfortunate decision, but it was histo make. I would not give effect to this complaint. [54] I would therefore dismiss the appeal from conviction.

WAS THE SENTENCE UNFIT? [55] The appellant complains that the trial judge placed too much emphasis on his prior record, and that the three year sentence(less remand time) was unfair in light of the mitigating factors. The ones that he relies on are: the trial evidence that he had tried todissuade others from committing the offences, and he had helped to try to recover some of the stolen property.

He also says he has plansfor the future to learn a trade. [56] It is important to keep in mind that absent an error in principle, an appellate court is not at liberty to merely substitute its viewas to the appropriate sentence. Great deference is owed to a trial judge’s assessment of the appropriate sentence. This has beenemphasized repeatedly. Lamer C.J., for the Court in R. v.

Proulx, 2000 SCC 5 wrote: [123] In recent years, this Court has repeatedly stated that the sentence imposed by a trial court is entitled to considerable deferencefrom appellate courts: see Shropshire, supra, at paras. 46-50; M. (C.A.), supra, at paras. 89-94; McDonnell, supra, at paras. 15-17(majority); R. v. W. (G.), (SCC), [1999] 3 S.C.R. 597, at paras. 18-19.

In M. (C.A.), at para. 90, I wrote: Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court ofappeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. Parliament explicitly vestedsentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. [Emphasis in original.] [57] I have carefully reviewed the record of the sentence hearing, including the reasons of the trial judge.

I see no failure toconsider the mitigating factors the appellant has emphasized before us. The appellant made the same arguments to the trial judge. Thetrial judge referred to them and said he took them into account. [58] There were also aggravating circumstances. The appellant is not a youthful offender. He was 32 years old when sentenced. He had accumulated 34 prior convictions involving numerous property offences, breaches of court orders, and crimes of violence. He

was on probation when he committed the break and enter. The pre-sentence report was not positive. [ 59 ] The trial judge reviewed the purpose and principles of sentence set out in the Criminal Code , the circumstances of the offender and of the offence, including the fact he was to sentence the appellant on just one count of break and enter. The trial judge was aware of, and mentioned the sentences imposed on the other offenders.

Their sentences ranged from a jointly recommended sentence of two years’ incarceration to four years’ incarceration. [ 60 ] After considering all the myriad factors that properly inform the imposition of an appropriate sentence, the trial judge concluded: Following the decision of R. v. Zong , taking into account the fact that Mr. Izzard has a record of criminal convictions, taking into account the seriousness of the offence of break and entry, I am satisfied that the purposes and principles of sentencing cannot be properly met by imposing a sentence of less than two years in custody.

I conclude that an appropriate sentence, taking all of the facts of the offences into account and taking into account the circumstances of Mr. Izzard, is a sentence of 3 years and 10 days in custody, and I give credit to Mr. Izzard of 375 days. Therefore, the sentence that is imposed at this point in time on a go-forward basis is that Mr. Izzard is sentenced to and will serve a period of two years in a federal institution. That is on the break and entry charge. [ 61 ] I am not convinced that the trial judge committed any error in principle or that the sentence is demonstrably unfit.

I would grant leave to appeal from sentence, but dismiss the appeal. Beveridge, J.A. Concurred: Saunders, J.A. Farrar, J.A.