Court of Appeal for Ontario

Citation: R. v. Boachie, 2008 ONCA 342

Date: 2008-05-02

Docket: C47717

Between:

Her Majesty the Queen Respondent

and

Bernard Boachie Appellant

Before: Feldman, Sharpe and Armstrong JJ.A.

Counsel: Scott Hutchison (duty counsel) for the appellant Gillian Roberts for the respondent

Heard: April 29, 2008

On appeal from the judgment of Justice J. David McCombs of the Superior Court of Justice dated August 21, 2007.

ENDORSEMENT

[1] The appellant raises two grounds of appeal against his sentence of 35 months for aggravated assault (23 months) and use of a firearm (12 months) in addition to 61 months credit for pre-trial custody.

2. Prevalence of the crime in the community

[2] In his reasons for sentence, the trial judge stated that "it is well known that intimidation of potential witnesses is prevalent within the community" where this offence was committed. The appellant submits that there was insufficient evidence to permit the trial judge to find this fact and that the trial judge could not take judicial notice of the fact. We note that the trial judge conducted a proper contested hearing on the judicial notice point and that his finding did not emerge at the last minute in his reasons for sentence.

[3] In any event, in the circumstances of this appeal, it is unnecessary for us to deal with the judicial notice point. The very facts of the offence speak to the point: the appellant used a hand gun to threaten a twelve year old boy who had provided information to the police telling him: "This is what informants get". He aimed the gun near but not at the victim, fired it, and caused severe injuries when the bullet struck the boy by ricochet. The appellant's actions amounted to a blatant proclamation to the victim and to others who would learn of his actions of the essential fact relied upon by the trial judge, namely, that informants and those who assist the police, even young children, can expect to face dire consequences and even death for assisting the police.

2. Youthful offender

[4] The appellant submits that the trial judge erred by failing to take into account his youth and the principles of sentencing that pertain to youthful offenders: see R. v. Priest, [1996] O.R. (3d) 538; *R. v. Borde* (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417. In particular, the appellant takes issue with the following passage: "I have concluded that these offences are so serious that only a very substantial penitentiary sentence would adequately emphasize both general and individual deterrence, and reflect the public's contempt for behaviour like this." The appellant submits that the trial judge placed undue emphasis upon general deterrence and denunciation.

[5] We disagree.

[6] First, we note that while the appellant was 19 years old at the time of the offence and 21 years old at the time of sentencing, he had an extensive youth court record that included convictions for armed robbery, disguise with intent, sexual assault and failure to comply with court orders. He was under a weapons prohibition when he committed the present offences. While this would be his first penitentiary sentence, and while the trial judge was obliged to consider his youth as a factor in sentencing, the appellant is not a youthful offender with an unblemished record.

[7] Second, the trial judge did not make the error identified in Borde, supra, at para. 36 of "focusing almost exclusively on the objectives of denunciation and general deterrence." The trial judge explicitly considered appellant's youth and the fact that this was his first conviction as an adult, as well as other mitigating factors including the appellant's expression of remorse, and did not focus almost exclusively on denunciation and general deterrence.

[8] Third, there were ample grounds for the trial judge to conclude that "this is a very, very grave set of circumstances, very grave indeed" and that, after giving full attention to the mitigating factors, general and specific deterrence demanded a significant sentence.

[9] The appellant's actions involved the use of a dangerous weapon to threaten and put the life of an innocent child in peril, all in the name of intimidation and interference with the due administration of justice. The gravity of this crime and its serious implications for the community were proper factors for the trial judge to consider when imposing this sentence.

Conclusion

[10] While the sentence imposed was certainly at the high end of the acceptable range for a 19 year old offender, we cannot say that the trial judge erred in principle.

[11] Accordingly, the appeal from sentence is dismissed.

"K. Feldman J.A."

"Robert J. Sharpe J.A."

"R.P. Armstrong J.A."