DATE: 20060804

DOCKET: C43567

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – JAMAL TAYLOR (Appellant)

BEFORE:

SIMMONS, ARMSTRONG AND ROULEAU JJ.A.

COUNSEL:

Michael Dineen

for the appellant

Gillian Roberts

for the respondent

HEARD & RELEASED ORALLY:

July 26, 2006

On appeal from convictions entered by Justice Harriet E. Sachs of the Superior Court of Justice dated October 29, 2004 and from the sentence imposed by Justice Sachs on January 11, 2005.

E N D O R S E M E N T

[1] The appellant appeals from his convictions for robbery with a firearm and aggravated assault. He also seeks leave to appeal the global sentence imposed of three years of imprisonment in addition to credit for five years of pre-sentence custody.

[2] The charges arose out of the shooting of 17-year-old J.D. on the evening of September 28, 2002. As he was approaching his car after leaving a house party, J.D. was accosted by a group of men who wanted to rob him. One of the men pulled a gun and pointed it at J.D. J.D. fought back and struggled with the gunman for control of the gun. During the struggle, the other men attacked J.D. causing him to stumble. The gun was fired several times. Following the initial set of shots, the rest of the group fled leaving J.D. and the gunman struggling for the gun. Two more shots were fired, one of which injured J.D.’s finger. J.D. pulled away and ran to his car. The gunman followed him, shot him in the back paralyzing him instantly and robbed him of a set of gold and diamond studded teeth.

[3] In her reasons, the trial judge said she was not satisfied beyond a reasonable doubt that the appellant was the shooter, but she was satisfied that he was a member of the group who attacked J.D. She found that the purpose of the group was to rob J.D. She concluded that as soon as the gun was passed from one member of the group to the shooter, the member of the group who passed the gun said, “just pop him”, and the gun was pointed at J.D., each member of the group had to know that a firearm was being used during the course of the robbery. She noted that although J.D. did not recall whether other members of the group had their hands on the gun, he did testify that the gun was fired several times while other members of the group were close at hand.

[4] The appellant raises three issues on his appeal against conviction. First, the appellant claims that the trial judge erred in her assessment of the significance of the evidence concerning a bullet wound to the appellant’s finger and that her conclusion that the appellant was involved in the robbery on the basis of the bullet wound was not available on the evidence.

[5] We disagree. Read fairly, the trial judge’s reasons indicate that she concluded the appellant was involved in the robbery based on an accumulation of evidence that included the following:

(a) a photo line-up identification of the appellant as the shooter by J.D.;

(b) a second photo line-up identification of the appellant as the shooter;

(c) circumstantial evidence that satisfied the trial judge that Mr. Taylor was at the scene when the offences occurred; and

(d) evidence of the bullet wound to the appellant’s finger.

[6] While the trial judge acknowledged that there were frailties in the identification evidence that caused her to have a reasonable doubt about whether Mr. Taylor was the man who shot J.D., she was satisfied beyond a reasonable doubt that he was a member of the group that robbed and attacked J.D. The trial judge said:

In my view these pieces of evidence taken cumulatively do establish beyond a reasonable doubt that Mr. Taylor was a member of the group that attacked and robbed [J.D.]. To find otherwise would be to conclude that Mr. Taylor was the unlucky victim of a completely improbable series of coincidences. He was there, he was shot in a manner consistent with being involved in a struggle for a gun and he was identified by two people as the main perpetrator.

[7] In our view, contrary to the appellant’s submissions, the trial judge did not place undue weight on the bullet wound evidence nor rely on it for impermissible inferences. Rather, she simply relied on that evidence as one piece of an accumulation of evidence that she concluded established the appellant’s guilt beyond a reasonable doubt. In our view, this conclusion was available on the accumulation of evidence the trial judge identified and the appellant has not demonstrated any palpable and overriding error in her findings.

[8] Second, the appellant claims that, in convicting him, the trial judge erred in law by relying on an out-of-court statement made by the appellant’s co-accused as evidence against the appellant.

[9] We agree that near the end of her reasons, the trial judge improperly included the evidence of this statement in her recitation of the evidence that placed the appellant in the vicinity of the robbery. However, we accept the Crown’s submission that the other evidence placing the appellant in the vicinity of the robbery was compelling and that there is no reasonable possibility that the verdict would have been different had this error not been made.

[10] Third, the appellant submits that the trial judge erred in finding that the appellant must have known that a firearm, as opposed to an imitation firearm, was being used in the robbery. We disagree.

[11] The trial judge found that the appellant was acting in concert with a group that set out to rob the victim; that during the course of the robbery, the weapon was passed from one member of the group to another; and that prior to any shots being fired one member of the group said: “just pop him”. On the basis of this evidence and the evidence that the group members were in close proximity to the weapon during the course of the struggle, we are satisfied that the trial judge’s finding was available on the evidence. Moreover, in light of these circumstances, in our view, the trial judge made no error in failing to advert to the victim’s evidence that he thought that the weapon looked like a B.B. gun.

[12] On the issue of sentence, the appellant submits that taking into account his limited role in the shooting, his youth, and the fact that he had never previously served a lengthy term of incarceration, the sentence is unfit. Further, he asserts that the trial judge erred by failing to allude to the sentencing principle that a first penitentiary sentence for a youthful offender should be the minimum sentence possible to satisfy the requirements of denunciation and deterrence.

[13] We disagree. In our view, the following factors justify the sentence that was imposed:

• the offence involved a planned and vicious attack on an entirely innocent victim in order to rob him;

• a loaded gun was used during the attack;

• during the struggle for control of the gun, five to seven shots were fired in the middle of a suburban neighbourhood with dozens of people standing around. This conduct demonstrates a callous disregard for the lives and safety of not only the victim but innocent bystanders and people living in the neighbourhood;

• the attack involved group violence;

• when the victim reacted to the gun that was pointed at his chest the group, which had surrounded him, punched and kicked him to ensure that the gunman maintained control of the gun;

• after the victim managed to escape and was running to his car, he was shot in the back, almost killing him, and rendering him paralyzed from the waist down;

• the offence has had a devastating effect on the victim and his family;

• the appellant had a significant prior youth record, including a robbery during which he pointed an imitation firearm at the victim’s chest;

• the appellant was on probation for that robbery at the time he committed the instant offences and his probation order included a curfew from 11:00 p.m. to 6:00 a.m. indicating that he should not have been at the house party at the time of these offences;

• the offence of aggravated assault carries a maximum penalty of 14 years imprisonment while robbery with a firearm carries a minimum sentence of four years imprisonment and a maximum sentence of life imprisonment; and the need to deter and denounce the illegal use of firearms.

[14] Based on the foregoing reasons, the conviction appeal is dismissed. While leave to appeal sentence is granted, the sentence appeal is also dismissed.

“Janet Simmons J.A.”

“Robert P. Armstrong J.A.”

“Paul Rouleau J.A.”