Court File and Parties

CITATION: R. v. Habibullah, 2007 ONCA 899

DATE: 20071221

DOCKET: C45480

COURT OF APPEAL FOR ONTARIO

DOHERTY, SHARPE and GILLESE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

JASON HABIBULLAH

Appellant

Counsel: Gregory Lafontaine for the appellant Deborah Krick for the respondent

Heard and orally released: December 20, 2007

On appeal from the sentence imposed by Justice David Watt of the Superior Court of Justice dated June 10, 2005.

ENDORSEMENT

[1] The appellant pled guilty to murder and received the mandatory sentence of life imprisonment. The trial judge also imposed a fifteen-year period of parole ineligibility. The appellant appeals from that aspect of the sentence.

[2] The trial judge’s reasons are careful and detailed. Counsel accepts that those reasons reveal no error in principle. He submits, however, that the sentence of fifteen years without eligibility for parole is outside of the appropriate range given the mitigating circumstances, particularly as they relate to the appellant.

[3] We accept that submission. A review of the cases satisfies us that fifteen years is outside of the appropriate range. In so holding, we have regard to the following factors. The appellant is very young (nineteen). He had no criminal involvement before this offence and, in fact, on the evidence adduced on sentencing, had led a very positive and productive life. There were upwards of twenty character references filed on his behalf on the sentencing. The appellant also shows strong rehabilitative prospects. Those prospects are confirmed to a large degree by the post-sentence material that we have received. This material was obviously not available to the trial judge.

[4] Although we are satisfied that fifteen years is outside of the range, we are satisfied that some increase in the period of parole ineligibility was warranted. This was a brutal, senseless murder of a vulnerable young person by a group of people, including the appellant. In our view, a period of parole ineligibility of twelve years is appropriate. In so holding, we stress that the sentence is life imprisonment. If and when the appellant gets out of jail, will be ultimately up to the parole board. Our decision today is, however, that he should have a chance for parole after twelve years. The appeal is allowed and the period of parole ineligibility is varied to twelve years.

“Doherty J.A.”

“Robert J. Sharpe J.A.”

“E.E. Gillese J.A.”