Court of Appeal for Ontario

Citation: R. v. Alzherani, 2009 ONCA 165

Date: 20090220

Docket: C49033

Before: Rosenberg, Sharpe and Juriansz JJ.A.

Between:

Her Majesty the Queen Respondent

and

Maitham Alzherani Appellant

Counsel: Daniel A. Stein for the appellant Dena Bonnet for the respondent

Heard and endorsed: February 18, 2009

On appeal from conviction by Justice Gordon Thomson of the Superior Court of Justice dated December 8, 2006 and sentence imposed dated February 14, 2007.

APPEAL BOOK ENDORSEMENT

[1] As to conviction, we are satisfied that the trial judge did not err in his treatment of the mens rea including mistaken belief in consent, assuming without deciding that there was air of reality to that defence.

[2] With respect to sentence, we are satisfied that the trial judge properly considered the providing of the ecstasy as a serious aggravating factor. We are, however, of the view that the trial judge used highly inappropriate language in suggesting that he wished he could order the appellant’s deportation. That said, the trial judge had earlier given careful attention to the appropriate objectives of sentence and specifically recognized that vengeance has no place in our sentencing regime. The sentence actually imposed of 72 months imprisonment was appropriate given the serious nature of the offence and the appellant’s record for a similar offence.

[3] Accordingly, the appeal from conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed.