R. v. S.S., 2008 ONCA 140

WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110. (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act…

111. (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person…

112. (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

CITATION: R. v. S.S., 2008 ONCA 140

DATE: 20080229

DOCKET: C43442-C43570

COURT OF APPEAL FOR ONTARIO

DOHERTY, BORINS and LANG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

S.S. (a young person) and A.R. (a young person)

Appellants

Brian Snell and David North for the appellants

John McInnes for the respondent

Heard: February 5 and 6, 2008

On appeal from the convictions entered by Justice D. Hackett of the Ontario Court of Justice dated January 21, 2005, and the sentences entered on April 29, 2005.

BY THE COURT:

I

OVERVIEW

1A.R. and S.S. appeal their convictions and sentences. A.R. was convicted of a number of offences arising out of two armed robberies that occurred about an hour apart on an evening in January 2003. S.S. was convicted of offences arising out of the second robbery only. Both appellants were seventeen years old at the time of the offences.

2A.R. received sentences totalling:

• ten months secure custody;

• eight months open custody; and

• nine months community supervision.

3S.S. received sentences totalling:

• six months secure custody;

• four months open custody; and

• five months community supervision.

4Three other individuals were charged in connection with these robberies. A.M. was tried with the appellants in youth court. He was acquitted on all charges on directed verdicts at the end of the Crown’s case. Errol Granston, an adult, was tried separately. His trial was pending when the appellants were tried in youth court. Kenroy John, also an adult, was murdered while awaiting his trial on the charges arising out of these robberies.

II

SUMMARY OF THE EVIDENCE

5The Crown’s case was based on a statement made to the police by Johan Cerdas, the victim of the first robbery, a videotaped statement made by Granston to the police after his arrest, the evidence of Todor Stankov, the victim of the second robbery, and evidence of certain items found in the possession of the appellants and Granston at the time of their arrest very shortly after the second robbery. The statements made by Mr. Cerdas and Granston were hearsay and prima facie inadmissible. The Crown successfully moved for their admission under the principled exception to the rule against hearsay. The admissibility of those statements is the focus of the conviction appeals.¹

6On the Crown’s case, the first robbery occurred at about 10:00 p.m. on a public bus travelling in the west end of Toronto. Mr. Cerdas, who was eighteen, was riding on the bus when a gang of five or six young men surrounded him. One of the gang demanded Mr. Cerdas’ earpiece. When Mr. Cerdas refused, this person produced a sawed off shotgun, pointed it at Mr. Cerdas’ chest and threatened him. A gang attack followed. Mr. Cerdas was pushed, punched and kicked. His glasses were broken. During the attack, the assailants stole Mr. Cerdas’ ring, earpiece, watch, and cell phone. When the bus stopped, the gang tried to pull Mr. Cerdas off the bus, presumably to continue their attack, but he managed to stay on the bus and it drove away.

7The gang then made their way to the subway. They rode to the Victoria Park station. On the ride, they decided to rob a pizza delivery man. One of the gang phoned and ordered pizzas delivered to a specific apartment.

8Mr. Stankov had the misfortune to be delivering pizzas that night. He responded to the order. As Mr. Stankov walked toward the apartment building with three pizzas, two masked gunmen approached him. One had a sawed-off shotgun, and the other had a handgun. At gunpoint, they forced Mr. Stankov to the door of a stairwell in the apartment building. A third man opened the door, and Mr. Stankov was pushed inside the stairwell. Two other men were waiting for him. The gang beat and kicked Mr. Stankov and took his money. Mr. Stankov readily gave up the money (about $200) but resisted giving his assailants his wallet because it contained his immigration papers. A security guard heard Mr. Stankov calling for help and came to his assistance. The guard called 911. The robbers fled toward the subway.

9Within moments of Mr. Stankov’s robbery, surveillance cameras videotaped a group of young men, including A.R. and S.S, entering the subway. S.S. was carrying three pizza boxes from the store that employed Mr. Stankov.

10The police stopped the subway and arrested the appellants on the subway platform. When A.R. was arrested, he was in possession of a pizza box from Mr. Stankov’s employer, a sawed off shotgun, an imitation firearm, and Mr. Cerdas’ cell phone. The imitation handgun was not operable. A piece of the same gun was found at the scene of the Stankov robbery. The gun had blood on the grip, which was consistent with Mr. Stankov’s blood type. Blood found on A.R.’s shoes and pants was also consistent with Mr. Stankov’s blood type.

11When S.S. was arrested, about $111 in coins and bills was found stuffed into his coat pocket. The amount and denomination of the bills were consistent with having come from the robbery of Mr. Stankov.

12Granston was also seen on video entering the subway with the appellants. He escaped from the subway, but was apprehended by the police a short time later in a nearby ravine. Mr. Cerdas’ ring was found on the ground beside Granston.

13The appellants testified, as did their co-accused, A.M. They all gave basically the same version of events. According to this version, the appellants were with a group of friends on the night of the robberies. The group played basketball together. A.R. and S.S. were good friends.

14Both appellants acknowledged being present when the robberies occurred but denied any involvement in either robbery. They testified that the first robbery must have occurred after a brief altercation on the bus involving Mr. Cerdas and John, and seconds after the two appellants and A.M. got off the bus but before John and Granston had left the bus. The appellants testified that while they were aware of an altercation between Mr. Cerdas and John, they were unaware of any robbery.

15The appellants also testified that the robbery of the pizza delivery man, a short time after the robbery on the bus, came as a complete surprise to them. According to the appellants, they had travelled with John and Granston on the subway to an apartment where Granston had said there was a party and free food. The appellants testified that they were told to wait in the stairwell of the apartment building for Granston to return with the food. While waiting in the stairwell, they heard a commotion outside the door. A.R. opened the door to find Granston and John beating a pizza delivery man. The appellants, in a panic, fled the scene, headed for the subway. As shown on the video, they arrived at the subway with Granston and John. The appellants were wearing bandanas over their face, but they explained that this was because of the cold, snowy weather conditions.

16A.R. testified that when they reached the subway, Granston made him take the backpack that contained the sawed off shotgun and the imitation handgun. Granston also gave A.R. a cell phone, which A.R. later learned belonged to Mr. Cerdas. S.S. testified that Granston made him carry the pizzas into the subway station. The appellants testified that they feared Granston.

17After examining the appellants’ evidence in detail, the trial judge rejected it almost in its entirety. She gave extensive reasons for doing so. On the totality of the evidence, the trial judge was satisfied beyond a reasonable doubt that A.R. had wielded the sawed off shotgun in both robberies. The trial judge was not satisfied beyond a reasonable doubt that S.S. was involved in the robbery of Mr. Cerdas. She was, however, satisfied that he was involved in the pizza robbery. The trial judge held that although S.S. did not personally possess a weapon, he was a party to the possession of the sawed off shotgun by A.R. in the second robbery.

III

THE CONVICTION APPEAL: THE ADMISSIBILITY OF THE HEARSAY STATEMENTS

18As indicated above, the trial judge admitted hearsay statements made by Mr. Cerdas and Granston for the truth of their contents. Both statements figured prominently in the Crown’s case. Without Mr. Cerdas’ statement, there was virtually no evidence capable of establishing that he was robbed.

19The trial judge held that both statements qualified as admissible hearsay under the principled exception to the hearsay rule. The appellants submitted at trial, and again on appeal, that neither statement was sufficiently reliable to warrant admission under the principled exception.

(i) Mr. Cerdas’ Statement

20Within approximately one hour of the robbery, Mr. Cerdas gave a statement to the police. The statement was reduced to writing and signed by him. It was not videotaped or audiotaped. Mr. Cerdas was not under oath when he made the statement and was not cautioned as to the potential criminal liability should he deliberately lie to the police. It turned out, however, that Mr. Cerdas had been convicted on two prior occasions for obstructing justice by lying to the police. Based on these prior convictions, the trial judge found that Mr. Cerdas appreciated the significance of telling the truth in his statement.

21Mr. Cerdas’ statement was about two-and-a-half pages long. He described being robbed on the TTC bus by five or six young males. He told the police that they had taken his earpiece, cell phone, watch, and a gold ring. Mr. Cerdas provided a general description of four of the individuals involved in the attack. He indicated that two were masked.

22Mr. Cerdas was called as a witness by the Crown. He professed to have no recollection of the robbery or the statement. He declined to read the statement while in the witness stand. The trial judge ultimately found that Mr. Cerdas’ memory loss was feigned and that he was afraid to testify against the appellants.

23The trial judge considered the law governing the principled exception to the hearsay rule at length. As the necessity prerequisite to admissibility was all but conceded, the trial judge focussed on the threshold reliability requirement. The appellants also focus on that requirement in this court.

24The law pertaining to the manner in which the reliability of the hearsay statement is to be determined for the purposes of assessing admissibility was recently clarified in R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.). While Khelawon postdates the trial judge’s decision to admit these statements, her reasoning anticipated the clarification in Khelawon insofar as that clarification addresses the factors that are properly considered by a trial judge when determining whether a hearsay statement is sufficiently reliable to cross the admissibility barrier. In Khelawon, at para. 4, Charron J. said:

[T]he factors to be considered on the admissibility inquiry cannot be characterized in terms of threshold and ultimate reliability. Comments to the contrary in previous decisions of this court should no longer be followed. Rather, all relevant factors should be considered including, in appropriate cases, the presence of supporting or contradictory evidence. In each case, the scope of the inquiry must be tailored to the particular dangers presented by the evidence and limited to determining the evidentiary question of admissibility. [Emphasis added.]

25Applying Khelawon, the trial judge was entitled to look beyond the circumstances immediately surrounding the making of the hearsay statement to the rest of the evidence for indicia of reliability. That is exactly what the trial judge did.

26In holding that Mr. Cerdas’ statement was sufficiently reliable to justify its admissibility, the trial judge referred to several factors, including the following:

• The statement was made very soon after the events described in the statement;

• Mr. Cerdas had no motive to lie to the police about being robbed or the particulars of the robbery, or to falsely implicate the appellants;

• Mr. Cerdas, because of his personal experience (two prior convictions for obstructing justice), was aware of the consequences of lying to the police even though he was not cautioned about those consequences on this occasion;

• The police officer who took the statement knew nothing about the events referred to in the statement. That officer, and the police in general, had no suspects and no reason or ability to taint the statement by prompting Mr. Cerdas to provide certain information that would incriminate individuals suspected by the police;

• The statement was internally consistent and coherent;

• According to the police officer who took the statement and whose evidence was accepted by the trial judge, Mr. Cerdas was calm and in full possession of his faculties when he made the statement; and

• The injuries, albeit relatively minor ones, observed on Mr. Cerdas’ face and head were consistent with his description of the attack.

27The trial judge also specifically alluded to other evidence, independent of the statement, which in her view supported its reliability. She observed:

In addition, there is also other corroborative real evidence which supports the reliability of Cerdas’ robbery complaint. P.C. Letsche and P.C. Conley testified that a cell phone bearing Cerdas’ number and guns were found on a person fitting the general description of one of Cerdas’ assailants approximately three hours later on T.T.C. property. In addition, there is evidence that a ring, similar to Cerdas’ ring, was found in a crevice near a second male, who fled the same T.T.C. location at the same time. Had Cerdas been available for meaningful cross-examination at trial, this other trial evidence would likely have narrowed the issues and therefore the scope of his cross-examination. In this respect, the value of lost cross-examination in this area is less critical. [Emphasis added.]

28The factors considered by the trial judge in determining that the reliability requirement had been met in respect of Mr. Cerdas’ statement have all been recognized as legally relevant to the reliability inquiry. Nor did the trial judge fail to consider other relevant factors which may have diminished the reliability of the statement. The “other corroborative real evidence” referred to by the trial judge was properly considered in light of Khelawon.

29The admissibility of a hearsay statement is ultimately a question of law and, therefore, reviewable on a correctness standard. Part of that inquiry, however, requires the trial judge to weight various factors, some of which may point towards admissibility and others which may point against admissibility. Trial judges cannot consult rules akin to mathematical formulas to tell them how much weight to give to each of the factors. The assessment is case-specific. Different judges will reasonably assign more or less weight to each of the particular factors in any given case.

30As long as the trial judge addressed the factors germane to the reliability of the hearsay statement, did not fall into any material misapprehension of the evidence relevant to those factors, and made a reasonable assessment of the weight to be assigned to those factors, this court should not redo the weighing process, but should defer to the trial judge’s weighing of those factors.

31We find no error in the trial judge’s analysis of the legal principles governing the admissibility of Mr. Cerdas’ statement. She was aware that effective cross-examination of Mr. Cerdas was impossible. The trial judge alluded repeatedly to the dangers inherent in the statement of a declarant who was not cross-examined when the statement was made and cannot be cross-examined at trial. The factors identified by the trial judge as giving reliability to Mr. Cerdas’ statement were all supported on the evidence and, as indicated above, legally relevant to the reliability inquiry. The reasonableness of the trial judge’s assessment is placed beyond any dispute in light of the expanded review of the trial evidence mandated after Khelawon. As the trial judge found, there is an impressive body of independent real evidence capable of enhancing the reliability of Mr. Cerdas’ statement to the police, at least insofar as it described the robbery itself. The statement was properly admitted.

32Lastly, we note that the trial judge ultimately used Mr. Cerdas’ statement only to establish that he was robbed and that the identified property was stolen from him during the robbery. The trial judge did not use the contents of the statement to connect the appellants to the robbery. It does not appear that the fact of the robbery was seriously disputed at trial. The limited use to which the trial judge ultimately put the contents of Mr. Cerdas’ statement reduces any potential prejudice the appellants may have suffered by the admission of his statement to the police.

(ii) Granston’s Statement

33Granston gave a videotaped statement to the police very shortly after his arrest. He described the two robberies (and a third a few days earlier that did not involve the appellants). Prior to making the statement, Granston was cautioned and advised of his right to counsel. He was not under oath when he made the statement, and he was not cautioned as to the consequences of making a false statement. The videotape was played at trial, and the transcript of the interview was filed in evidence.

34When Granston was called at trial by the Crown, he declined to answer questions put by the Crown. According to him, his life was in danger if he “squealed”. Under cross-examination on the voir dire to determine the admissibility of the statement, Granston answered defence counsel’s questions concerning the circumstances surrounding his making of the videotaped statement to the police. Many of Granston’s answers could potentially have assisted the defence in that they could have undermined the admissibility of his statement.

35Defence counsel did not question Granston concerning the contents of the statement and the robberies described in the statement either on the voir dire or in the trial itself.

36In ruling on the admissibility of Granston’s videotaped statement, the trial judge had to consider whether Granston was available for cross-examination by the defence. She observed that while Granston had firmly told the Crown he would not answer any questions, he had been helpful to the defence and had answered questions for defence counsel concerning the circumstances surrounding the making of his statement. The trial judge went on to hold:

Nevertheless, given his [Granston’s] refusal to answer any questions of substance in-chief, he was virtually unavailable to the Crown in the classic hearsay sense. It should be noted that none of the defence attempted to cross-examine Granston about the contents of his statements or the robberies. In all of these circumstances, I am not prepared to assume that he would not have answered any defence questions about the statement contents or the robberies. Some attempt should have been made before such an inference can be drawn in this case given the inconsistency in his level of response to questions from the Crown and the defence. [Emphasis added.]

37It is clear that Granston did not want to assist the Crown or appear to be assisting the Crown. It is less clear that he was unprepared to testify about things that could potentially assist the defence. In the circumstances, it was open to the trial judge to find that the defence had not shown that Granston was unavailable to them for cross-examination, at least to the extent that his evidence may have assisted the defence.

38The defence’s decision not to pursue cross-examination of Granston on the contents of his statement on the robberies themselves was no doubt made for sound tactical reasons. However, those reasons do not detract from the reasonableness of the trial judge’s inference from the manner in which Granston conducted himself on the witness stand. In the absence of any attempt to elicit testimony from Granston, it was open to the trial judge to conclude that it could not be said that he was unavailable to the defence for cross-examination on the statement and the circumstances of the robberies.

39The trial judge identified several other factors, which in her view provided indicia of the reliability of Granston’s statement. These included:

• Other independent real evidence that was consistent with Granston’s story (e.g. Mr. Cerdas’ ring was found beside Granston when he was arrested);

• There were striking similarities between Granston’s description of the three robberies and the information provided to the police by the victims of those robberies. There was no opportunity for collusion or other form of tainting; and

• The videotape demonstrated that Granston was alert, calm and collected throughout his interview with the police. That interview was conducted in a professional manner with no inappropriate police conduct. The statement was voluntary.

40The factors identified by the trial judge were supported by the evidence and legally relevant to the assessment of the reliability of Granston’s videotaped statement. The trial judge did not misapprehend any evidence material to her finding of reliability. Her assessment of the weight to be assigned to the various factors was not unreasonable. This court should not interfere with that ruling.

IV

THE SENTENCE APPEAL

41Both appellants challenge the duration of their youth sentences on the basis that the trial judge improperly relied on general deterrence as a relevant sentencing objective. The appellants also argue that the sentences imposed were unreasonable. In addition, A.R. argues that the trial judge erred by imposing a sentence that exceeds the sentence proposed by the Crown without giving reasons for doing so. Irrespective of the appropriateness of the sentences at the time they were imposed by the trial judge, the appellants argue on the basis of fresh evidence that this court should reduce their sentences.

42The Crown concedes that the trial judge erred in her reliance on general deterrence. At the time, the trial judge did not have the benefit of the Supreme Court of Canada’s decision eschewing general deterrence as a factor in youth sentencing. In R. v. P.(B.W.); R. v. N.(B.V.) (2006), 2006 SCC 27, 209 C.C.C. (3d) 97 at para. 4 the court observed:

The YCJA … sets out a detailed and complete code for sentencing young persons under which terms it is not open to the youth sentencing judge to impose a punishment for the purpose of warning, not the young person, but others against engaging in criminal conduct. Hence, general deterrence is not a principle of youth sentencing under the present regime. [Emphasis added.]

43In light of P.(B.W.), the trial judge’s references to general deterrence are an error in principle. Despite this error, it is our view that the sentences imposed were fit at the time they were imposed, subject to the adjustment of A.R.’s sentence to comply with the sentence sought by the Crown. As the trial judge observed, these offences were robberies against vulnerable victims. They were serious offences that involved the use of firearms. A.R. was in possession of two firearms and used one of them to gratuitously beat and injure Mr. Stankov. Mr. Stankov never returned to his job delivering pizzas. S.S. participated in the second robbery and was a party to the firearms offences.

44The trial judge designated certain of the offences as serious violent offences. She also noted the planned nature of the second robbery. The trial judge also took into account the appellants’ circumstances. She expressed concern about the appellants’ failure to accept responsibility for their participation. She also considered the appellants’ ages, their out-of-character conduct in committing these offences, their differing levels of participation in the offences, their supportive families, and their significant prospects for rehabilitation. On the question of parity, the trial judge considered the 54-month global sentence imposed on an adult participant in related robberies, while also recognizing that the adult had a criminal record and that the appellants did not.

45The primary goal of sentencing under the YCJA is set out in s. 38(1):

The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

46The objectives of rehabilitation and reintegration are important. In addition to these objectives, the YCJA provides for a sentence that punishes the accused and denounces the offences. It requires the imposition of “meaningful consequences”. In our view, and subject to A.R.’s separate ground of appeal regarding the length of sentence, the sentences imposed by the trial judge properly reflected these objectives and were reasonable.

47Before addressing the appellants’ sentences individually, we note that the trial judge was cognizant of the effect of the two-year passage of time between the date of the offences and the date of sentencing when she considered the appropriate sentences for the appellants. She specifically recognized the importance of dealing with young offenders quickly. This is because sections 3(1)(b)(iv) and (v) of the YCJA provide for “timely intervention that reinforces the link between the offending behaviour and its consequences” and the need for prompt proceedings in light of “young persons’ perception of time”.

48There has been an additional delay of almost three years pending appeal. A considerable part of that delay was attributable to transcript production; however, it appears that appellants’ counsel did not request any priority for transcripts and, even after their delivery, counsel took seven months to prepare their facta. Nor did the Crown take any steps to attempt to expedite the appeals. Under the current system, the court responds to requests to expedite appeals but seldom takes the initiative to do so. Perhaps this should change.

49It may be reasonable to infer from this delay that the appellants were not anxious to have their appeals resolved in a timely fashion because they were on relatively favourable terms of interim release and further delay worked in their favour to bolster the evidence supporting their rehabilitation. In addition, the Crown was not apparently concerned about this delay. Nonetheless, the passage of more than five years since the offences is an important consideration when addressing the present fitness of the appellants’ sentences, particularly given their very positive life styles while on release. As well, the passage of time at the critical age of these appellants promotes confidence that their rehabilitation will endure. However, no matter how laudable the appellants’ rehabilitation – and their rehabilitation is laudable – it is not the sole consideration relevant to sentencing.

(i) A.R.’s sentence

50Since the trial judge gave no reasons for exceeding the sentence proposed by the Crown, the Crown concedes that the duration of A.R.’s sentence should be reduced to reflect the 24 months proposed by the Crown, comprised of six months of secure custody, ten months of open custody, and eight months of community supervision.

51A.R. was 17 years old at the time of the offences, 19 at the time of sentencing, and is now 22 years old. At the time of sentencing, as evidenced by the pre-sentence report, A.R. had matured and begun to achieve a successful rehabilitation, subject to his lack of acceptance of responsibility for the offences.

52A.R. argues that his sentence should be reduced in light of his fresh evidence about his successful rehabilitation. He has been employed full time for the past two years, currently in home renovations and construction. He intends to become a carpenter. He has completed 26 credits towards his high school diploma. He has a four-month old son whom he visits regularly and for whom he pays child support. A.R. continues to live at home where his family provides him strong support. He pays rent and helps with the household. Pending the appeal, A.R. has served approximately 18 days in custody. For the first year after his release pending appeal, A.R. was on strict terms of bail amounting to house arrest. He has complied with his terms of release.

53In light of A.R.’s rehabilitation, his time served and his one year of house arrest, his counsel seeks a sentence of time served together with an order for community supervision. The Crown does not dispute A.R.’s rehabilitation, nor does it dispute that it is open to this court to take into consideration the period of house arrest. However, the Crown argues that a period of incarceration is necessary to punish A.R. for these violent crimes. We agree.

54A custodial sentence is necessary to express a strong denunciation for these offences, to hold A.R. accountable, and to provide “meaningful consequences for his actions”. Nonetheless, in our view, A.R.’s incarceration does not need to be in a closed prison setting. Returning A.R. to prison, even youth prison, would not promote, and may hinder, his rehabilitation. Since the purpose of youth sentencing is the long-term protection of society through rehabilitation, reintegration and meaningful consequences, it would be contrary to the public interest to risk A.R.’s rehabilitation and his reintegration into society by placing him in prison five years after the offences. Such a disposition would not meet the YCJA’s objectives of “timely intervention” nor accord with a young person’s “perception of time”. A 22 year old is a different person than a 17 year old. Moreover, on the evidence before us, a secure setting is not necessary for the protection of the public. It would also remove A.R. (as it would S.S.) from familial supports, which are important for his continued rehabilitation.

55The principles of sentencing can best be fulfilled at this juncture by a period of open custody followed by community supervision. This disposition will keep A.R. near his family. We understand that, subject to the supervising authorities’ option to have A.R. serve his sentence in an adult jail, open custody will allow the authorities to incarcerate A.R. in a non-prison residential setting. In that setting, the authorities can structure terms of incarceration commensurate with his rehabilitation based on their assessment of his progress. This sentence may permit him to maintain his employment.

56In light of A.R.’s post-sentencing rehabilitation and his one year of house arrest, an appropriate sentence at this time would be one of ten months open custody to be followed by five months of community supervision. We understand that A.R. will be given credit from this sentence for the approximately 18 days of time he has already served.

(ii) S.S.’s sentence

57S.S. was sentenced regarding five offences in relation to the robbery of Mr. Stankov. S.S. played a less significant role in the offences than did A.R., although he was a party to the weapons offences. For the reasons we have already given, we are of the view that S.S.’s sentence of 15 months, comprised of six months secure custody, four months open custody and five months of community supervision² was appropriate at the time of sentencing in light of the relevant factors. Like A.R., S.S. did not express an appreciation of his accountability for the offences, apart from expressing sympathy for the impact on the victim. His pre-sentence report describes him as attributing his offences simply to “following his friends”. S.S. has served approximately one month of closed custody and two years on bail amounting to house arrest.

58S.S. has also filed fresh evidence that supports his successful rehabilitation. He also was 17 at the time of the offences, 19 at the time of sentencing, and is currently 22 years old. Since his release pending appeal, S.S. has complied with all the terms of his release orders. He continues to live with his mother, grandmother, four siblings, uncle, and cousin. He has completed grade 12 and has been employed full time since June 2006. Since August 2007, S.S. has been working as a labourer rebuilding transmissions. The Crown does not dispute S.S.’s successful rehabilitation but, again, emphasizes the goal of holding S.S. accountable for these offences through the provision of meaningful consequences.

59We agree with the Crown that, while S.S.’s rehabilitation is important, he must be held accountable for his involvement in these offences. In our view, in light of S.S.’s current circumstances, including his two years of house arrest, a proper sentence is one of four months open custody followed by two months of community supervision. We understand that S.S. will be credited for the time he has served since sentencing, which we are told is approximately five weeks.

60We emphasize that the sentences imposed by the trial judge for these very serious offences were appropriate when imposed. Our disposition reflects the significant change in circumstances since the trial judge imposed her dispositions. The appellants have shown substantial rehabilitative progress. In a very real sense, they are no longer the persons they were when they were before the trial judge.

61The appeals from the convictions are dismissed. Leave to appeal sentence is granted, the appeal allowed, and the sentence regarding duration is varied to accord with these reasons.

Footnotes

1. 1A.R. also argued that the trial judge should have declared a mistrial when the Crown inadvertently failed to disclose certain photographs of the scene of one of the robberies until A.R. was under cross-examination. We doubt that the late disclosure could possibly have prejudiced A.R. In any event, the trial judge fashioned a remedy that avoided any possible prejudice. We did not call on the Crown on this issue.
2. 2We recognize that this sentence exceeded the amount of secure custody sought by the Crown; however, we also observe that the overall sentence imposed (15 months) was less than the total of 18 months sought by the Crown.