DATE: 20020920 DOCKET: C35826
COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) –and– JERMAINE MILLER (Appellant)
BEFORE: CATZMAN, LASKIN and GOUDGE JJ.A.
COUNSEL: Anil K. Kapoor, for the appellant
Karen Shai, for the respondent
HEARD: September 11, 2002
The appellant appeals from the conviction imposed by Justice Patricia R. German of the Superior Court of Justice dated May 22, 2000.
The Crown appeals from the sentence imposed by Justice German dated June 19, 2000.
E N D O R S E M E N T
The Appeals
[1] [1] The appellant was convicted of aggravated assault arising from the shooting of a police officer, and of trafficking in a controlled substance. On the conviction for aggravated assault, the trial judge sentenced the appellant to a term of 8 years, less 4 years’ credit for his pre-trial custody of 27 months.
[2] [2] He appeals against his conviction for aggravated assault. The Crown seeks leave to appeal against sentence.
The Conviction Appeal
[3] [3] Mr. Kapoor made two essential submissions on the conviction appeal:
the verdict of guilt for aggravated assault was unreasonable; and
the trial judge failed to adequately instruct the jury on various aspects of the identification evidence.
[4] [4] We did not call upon Ms. Shai to respond to Mr. Kapoor’s submissions, for reasons that we can briefly indicate:
unreasonable verdict: There was ample evidence on which a properly instructed jury, acting judicially, could reasonably have rendered the verdict that this jury did. That evidence included physical evidence placing the appellant at the scene of the drug takedown, eyewitness evidence tracking him from the scene of the takedown to the scene of the shooting, and eyewitness evidence from the police officer whom the appellant shot at very close range. The evidence against the appellant, taken as a whole, was overwhelming, and the verdict returned by the jury was not unreasonable.
jury instructions on identification evidence: The trial judge gave the jury the usual instruction on the frailties of eyewitness identification and specifically directed the jurors’ attention to the need to ensure fairness of the photo line‑up. In her charge, she adverted to the fact that the identifying police officers were white and the appellant was black. In the absence of any attack on the fairness of the photo identification, the absence of any showing of unfairness and the absence of any objection by defence counsel at trial, we do not think that her charge was inadequate or that she was required to do more than she did.
The Sentence Appeal
[5] [5] The appellant had been charged with attempted murder and unlawfully trafficking in cocaine. The jury returned a verdict of not guilty of attempted murder but guilty of the lesser included offence of aggravated assault, and guilty of trafficking in a controlled substances. On the conviction for aggravated assault, the trial judge sentenced the appellant to a term of 8 years, which included pre-trial custody of 27 months, for which she accorded 4 years’ credit. She also sentenced him to 6 months on the trafficking charge, to be served concurrently. Only the sentence for aggravated assault is in issue on this appeal.
[6] [6] The Crown submitted that the trial judge erred in principle in failing to give effect to the principle of parity now codified in sec. 718.2(b) of the Criminal Code and that, in light of this court’s decision in R. v. Osbourne (1994), 1994 7209 (ON CA), 94 C.C.C. (3d) 435, a sentence of 12 years, less credit for pre-trial custody, was required.
[7] [7] The trial judge did not ignore Osbourne nor was she unmindful that the victim was a police officer, of whose profession this court has said:
Police officers, in the performance of their duties, are the representatives of the whole community, and an attack upon them is an attack upon the structure of a civilized society. Further, police officers, in the performance of their duties, are often in a position of special vulnerability and are entitled to such protection as the law can give. (R. v. Forrest (1986), 15 O.A.C. 104 at 107, per Zuber J.A.)
[8] [8] In our view, although the trial judge adverted to the requisite considerations, she gave inadequate considerations to them and, in consequence, imposed a sentence that did not reflect the gravity of the offence and was below the appropriate range.
[9] [9] We are therefore justified in imposing the sentence that we consider fit. In doing so, we reject the Crown’s contention that, because this case is so similar to Osbourne, parity demands that we sentence the appellant to 12 years. Parity is only one of a number of principles that must be taken into consideration in imposing an appropriate sentence, and it cannot in and of itself dictate the result in all cases involving similar offenders committing similar crimes. As Lamer C.J.C. said in R. v. M.(C.A.) (1996), 1996 230 (SCC), 105 C.C.C. (3d) 327, at ¶92:
Appellate courts, of course, serve an important function in reviewing and minimizing the disparity of sentences imposed by sentencing judges for similar offenders and similar offences committed throughout Canada: … But in exercising this role, courts of appeal must still exercise a margin of deference before intervening in the specialized discretion that Parliament has explicitly vested in sentencing judges. It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime: … Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
[10] [10] Taking into account all of the circumstances, we think that the appropriate sentence that should have been imposed in the present case was 10 years, less the credit the trial judge gave for pre-trial custody.
[11] [11] Accordingly, leave to appeal sentence is granted and the sentence imposed by the trial judge will be increased from 4 years to 6 years.
Signed: “M.A. Catzman J.A.”
“John Laskin J.A.”
“S.T. Goudge J.A.”