Court of Appeal for Ontario

Date: 2023-08-18 Docket: C70882

Before: Hourigan, Brown and Monahan JJ.A.

Between: His Majesty the King Respondent

And Hamas Khan Appellant

Counsel: Gerald Chan, for the appellant Sunil Mathai, for the respondent

Heard: August 15, 2023

On appeal from the sentence imposed on January 17, 2022 by Justice E. Ria Tzimas of the Superior Court of Justice, Brampton.

Reasons for Decision

[1] This is a sentence appeal arising from the appellant’s conviction for manslaughter in relation to a home invasion and robbery. The appellant appeals his sentence of 8.5 years on two grounds: (i) the trial judge erred in her treatment of the appellant’s offer, prior to trial, to plead guilty to manslaughter; and (ii) the trial judge should not have treated the appellant’s pre-trial in custody misconduct as an aggravating factor.

A. Background

[2] The appellant participated in an armed home invasion that ended with the fatal shooting of one of the residents of the home. The appellant and a co-accused, one Nebill Albayaty, entered the home without permission and held the residents at gunpoint. The victims of the robbery resisted, a struggle ensued, and the firearm was discharged multiple times, killing one of the residents. The shooter was either the appellant or Mr. Albayaty, both of whom were charged with first-degree murder.

[3] Prior to the appellant’s trial, Mr. Albayaty pled guilty to manslaughter and was sentenced to 7 years and 3 months in custody. The appellant also offered to plead guilty to manslaughter, but that offer was rejected by the Crown and the matter proceeded to trial. The jury found the appellant not guilty of first-degree murder but guilty of manslaughter.

[4] In her reasons for sentence, the trial judge found that the evidence did not prove beyond a reasonable doubt that the appellant was the person who fired the firearm. However, she was satisfied, beyond a reasonable doubt, that the appellant was a party to an armed home invasion knowing that a firearm was going to be used in a violent offence. As such, the trial judge found that this conduct amounted to manslaughter with aggravating circumstances, with an applicable sentencing range of between 8 to 12 years. After considering the various aggravating and mitigating circumstances in considerable detail, the trial judge concluded that the appellant should receive a sentence at the bottom of the applicable range, namely, 8.5 years.

B. Issues

[5] As noted above, the appellant takes issue with two aspects of the trial judge’s reasons for sentence.

[6] First, although the trial judge agreed that the appellant’s offer to plead guilty to manslaughter was a mitigating factor in determining a sentence, she held that the mitigating value of the offer to settle was diminished by the manner in which his defence was conducted at trial. In particular, the appellant put in issue whether he was even a participant in the incident, which the trial judge characterized as an attempt to “actively mislead the trier of fact”. The appellant argues that this was an error in principle since he was entitled to require the Crown to strict proof of its case beyond a reasonable doubt.

[7] Secondly, the trial judge characterized the appellant’s recorded instances of misconduct while in custody awaiting trial as an aggravating factor, despite the fact that these incidents post-dated the offence for which he was sentenced. The appellant argues that post-offence misconduct can negate the effect of a mitigating factor, such as rehabilitative potential, but cannot be considered an aggravating factor.

C. Governing Principles

[8] Sentencing determinations are owed considerable deference on appeal. Appellate intervention is justified only where: (i) the sentence imposed is demonstrably unfit; or (ii) there is an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor, and it appears from the trial judge’s decision that such an error had an impact on the sentence: R. v. Lacasse, 2015 SCC 64, [2015] S.C.R. 1089, at paras. 44, 51; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 26-28.

[9] Further, an appellate court may not intervene with a sentencing decision simply because it would have weighed the relevant factors differently. The weight given to a mitigating factor is a discretionary decision that is afforded significant deference on appeal and will only constitute an error in principle if discretion is exercised unreasonably: Lacasse, at paras. 39-40, 48-49. Moreover, the relevant mitigating and aggravating factors are considered in a holistic manner to arrive at a composite sentence, as opposed to analysing the relevant factors in isolation from each other: R. v. Nahanee, 2022 SCC 37, 418 C.C.C. (3d) 417, at para. 27.

D. Discussion

[10] We agree that the trial judge erred in describing the mounting of a vigorous defence case as an attempt to “mislead the trier of fact”. Further, we agree that she should have considered the appellant’s post-offence misconduct as negating a mitigating factor as opposed to constituting an aggravating factor.

[11] Nevertheless, in light of the governing principles set out above, we are not persuaded that either error warrants the intervention of this court for the following three reasons.

(1) Attaching “Relatively Minor” Weight to the Appellant’s Offer to Plead Guilty Does Not Appear to Have Had an Impact on the Overall Sentence

[12] With respect to the first error, the trial judge accepted the appellant’s plea offer as a mitigating factor. However, she gave it “relatively minor” weight as compared to the weight she would have given the offer had the appellant not contested his involvement in the robbery. While the trial judge ought not to have described his position at trial as an attempt to mislead the trier of fact, the trial judge was entitled to take into account the fact that contesting his presence at the armed robbery was inconsistent with his plea offer. The trial judge found that this inconsistency undermined the appellant’s acceptance of full responsibility and unnecessarily lengthened the trial. These findings were open to the trial judge to make.

[13] An offer to plead guilty can also be mitigating to the extent that it demonstrates an appropriate acceptance of responsibility. Yet quite apart from her findings relating to the plea offer, the trial judge found that the appellant’s expression of remorse and regret during the sentencing process were genuine. She was cautiously optimistic about his prospects for rehabilitation. The trial judge relied on these mitigating factors to fix a sentence in the low range of high culpability manslaughter sentences.

[14] As noted above, the determination of a fit sentence involves a holistic assessment of all relevant factors to arrive at a composite sentence. Having accepted the appellant’s expressions of remorse as genuine, and incorporating that finding into her determination that a fit sentence was at the lower end of the applicable range, we are unable to discern how relying on the appellant’s offer to plead guilty for a similar purpose would have had any practical impact on the ultimate result.

(2) The Trial Judge Did Not Use the Appellant’s Misconduct While in Custody for a Prohibited Purpose

[15] Turning to the second error, while the trial judge should not have listed the institutional misconduct as an aggravating factor, it is clear from her ruling that she did not use the misconduct for a prohibited purpose. Rather, she merely used the institutional misconduct in assessing the appellant’s prospect for rehabilitation and identifying the need for counselling. She made no error in doing so. Again, we see no practical significance to the error identified by the appellant.

(3) The Sentence Imposed was Fit in the Circumstances

[16] Quite apart from the fact that neither error identified by the appellant had any discernible impact on sentence, we find the 8.5 year sentence imposed to be fit in the circumstances. The appellant participated in an armed home invasion, involving the use of a loaded gun, where the victims were unarmed and vulnerable. The trial judge found that the appellant knew that a gun might be used in the robbery, and that he engaged in the incident in a reckless manner and without any regard for human life.

[17] The appellant argues that he ought to have received the same sentence as his co-accused Albayaty, namely, seven years and three months. But as the trial judge pointed out, the two men had quite different levels of moral culpability, since Mr. Albayaty’s sentence proceeded on the basis that he was not aware of any intention to use a firearm during the armed robbery. The trial judge therefore found that Mr. Albayaty’s sentence would not be a fit sentence for the appellant, which was reasonable in the circumstances. We see no basis to disturb that finding.

E. Disposition

[18] We therefore grant leave to appeal the sentence, but dismiss the appellant’s sentence appeal.

C.W. Hourigan J.A.

David Brown J.A.

P.J. Monahan J.A.