Not incarcerating convict despite sentence inadequate and increased on appeal

R. v. Smickle, 2014 ONCA 49:

[10]       This court has, on occasion, declined to re-incarcerate a respondent even though the sentence imposed at trial was manifestly inadequate.  Sometimes after identifying the sentence that should have been imposed and explaining why the respondent should not be re-incarcerated, this court has simply dismissed the appeal: e.g. see R. v. Hamilton, [2004] 72 O.R. (3d) 1, at para. 165 (C.A.); and R. v. Banci, [1982] O.J. No. 58 (C.A.).  The court also has the power to impose the appropriate sentence but stay the execution of the remaining custodial part of that sentence: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 132.  As explained in R. v. F. (G.C.) (2004), 71 O.R. (3d) 771, at para. 35, the imposition of the appropriate sentence followed by a stay of the execution of the remainder of the custodial sentence is probably a more appropriate disposition than is an outright dismissal in that it identifies the sentence that should have been imposed.

[11]        When, as in this case, the sentencing of an accused has been delayed by a lengthy appellate process, and the accused has served the sentence imposed at trial, the imposition of a "just sanction" demands that those factors be taken into account.  The respondent completed the sentence imposed on him long ago.  He has spent the last two years in legal limbo uncertain as to whether he would be required to return to jail and, if so, for how long.  Those hardships must be taken into account.  As observed in Hamilton, at para. 165:

This court has recognized both the need to give offenders credit for conditional sentences being served pending appeal and the added hardship occasioned by imposing sentences of imprisonment on appeal.  The hardship is readily apparent in these cases.  Had the respondents received the appropriate sentences at trial, they would have been released from custody on parole many months ago, and this sad episode in their lives would have been a bad memory by now.

[12]       We adopt the observation of Green C.J.N.L. in R. v. Taylor, 2013 NLCA 42, at para. 133, who, in the course of explaining the function of the appellate court when deciding whether to re-incarcerate an accused who had received in inappropriately low sentence at trial, said:

…there is nothing inconsistent with saying that the sentencing judge, with the record in front of him, should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows, the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence.  Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight, a perspective that the sentencing judge did not have.  The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances.  [Emphasis added.]