R. v. Hasan, 2013 ONCA 487

ENDORSEMENT

1As to conviction we have not been persuaded that the trial judge erred. This was a confusing encounter involving many persons.

2The trial judge did an admirable job in sorting through the evidence. She was well aware of the dangers of eye-witness identification. Her reasons are fully supported by the evidence; accordingly the conviction appeal is dismissed.

3As to sentence, in our view, the trial judge erred in principle in finding that the appellant was a danger to the community. This is not supported by the evidence. Whatever the case right after the offence, four years later when the appellant came to be sentenced the record shows that the appellant was rehabilitated. He had found a new community of friends. The fact that he pleaded not guilty and maintained his innocence was not and does not show that he was dangerous. His comment of being in the wrong place at the wrong time was no more than an expression of his defence that while he was at the location, he was not the one who assaulted the victims.

4Given the error in principle it falls to this court to impose sentence. The exceptional circumstance in this case is the over six years that the appellant has been on bail awaiting trial and then appeal without incident. This is a significant factor for a relatively young man. Taking into account the amount of time the appellant has now served of the original sentence, no interest would be served by returning the appellant to custody at this time. Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence reduced to time served plus 18 months probation on the terms imposed by the trial judge.