R. v. Lakatos, 2011 ONCA 318
CITATION: R. v. Lakatos, 2011 ONCA 318
DATE: 2011-04-21
DOCKET: C52772, C52090 and C51938
COURT OF APPEAL FOR ONTARIO
Rosenberg, Juriansz and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Janos Lakatos, Ferset Mohammad and Fyad Mustafa
Appellants
Counsel:
Frances S. Brennan, for the appellant, Janos Lakatos
Robert C. Sheppard, for the appellant, Ferset Mohammad
Dale E. Ives, for the appellant, Fyad Mustafa
Nadia Thomas, for the respondent
Heard: April 5, 2011
On appeal from the decision of Justice Paul F. Lalonde of the Superior Court of Justice, dated January 28, 2010.
ENDORSEMENT
Introduction
[1] After being tried together by judge alone, Fyad Mustafa was convicted of: (i) unlawful confinement; (ii) uttering death threats; and (iii) possession of a firearm or imitation firearm to commit an offence. Ferset Mohammad and Janos Lakatos were convicted of unlawful confinement. They all appeal their convictions and Lakatos and Mohammad seek leave to appeal their sentences. Their appeals were heard together.
[2] The trial judge found all of the civilian witnesses in this trial to be incredible. He cautioned himself about the lack of trust he could have in their testimony standing alone. This was perhaps especially true regarding the evidence of the complainant, Samir El-Ghafari. As a result, he instructed himself on the need to find confirmatory evidence to support the testimony of the allegations being made.
[3] Here the guilt of the appellants rested almost entirely on the testimony of El-Ghafari. Thus, the trial judge – as he noted – searched for evidence from another source that would provide him with the confidence that El-Ghafari was telling the truth in the relevant aspects of his account of the events.
[4] It is in connection with this chain of reasoning and analysis by the trial judge, which forms the core of the appellants’ grounds of appeal. The principal arguments are addressed in two issues: (i) whether the trial judge properly approached the matter of confirmatory evidence to believe the testimony of El-Ghafari; and (ii) whether there were inconsistent verdicts as between Fyad Mustafa and Janos Lakatos?
Confirmatory evidence
[5] The appellants argue that the evidence relied on by the trial judge for this purpose, either taken individually or in its totality, could not reasonably be sufficient to restore the trial judge’s confidence that El-Ghafari was telling the truth about what happened in the motel room and outside the motel room on the way to Bansie’s house. We disagree.
[6] Some of the evidence that the trial judge relied on to enable him to trust El-Ghafari’s testimony includes:
- the presence of a hammer, rope and duct tape in the motel room;
- rubber based adhesive residue on the chair, the cuffs of the complainant’s sweater, and a wrapper in the car’s back seat of the type often used in duct tape;
- red marks on the complainant’s face and neck, and red indented lines on the complainant’s wrists and neck;
- Bansie’s description of the complainant’s behaviour when he was in the washroom in Bansie’s house; and
- the officer’s testimony that the motel room was not set up for playing cards.
[7] It was not necessary, as the appellants argue, that individual items of confirmatory evidence must specifically confirm that the criminal conduct amounted to a forcible confinement, or that a firearm was used: R. v. J.K., [2011] O.J. No. 124 (C.A.). Rather, the confirmatory evidence needed only to give the trial judge a basis for accepting the testimony of El-Ghafari regarding relevant aspects of his account of the events.
[8] The trial judge was entitled to find, as he did, that a gun was used by Mustafa. He found that other evidence, including that noted above, allowed him to believe material parts of El-Ghafari’s evidence. This included the finding that El-Ghafari’s belief was that, in all the circumstances, it was a gun he was being threatened with: R. v. Charbonneau, 2004 O.J. No. 1503 (C.A.). The evidence was sufficient to allow the trial judge to reach this conclusion and the finding was reasonable.
[9] Credibility of all of the witnesses, as it is in any trial, was a matter for the trial judge alone to determine.
[10] We would apply the same analysis and conclusions to the offence of unlawful confinement.
Inconsistent verdicts
[11] The trial judge acquitted Lakatos of all gun-related offences and noted: “I do not have any circumstantial evidence to back up whatever El-Ghafari had to say on these charges and thus I find that there is insufficient evidence to convict Mr. Lakatos on these three remaining charges.” Mustafa argues that this verdict is inconsistent with the trial judge’s conviction of him on the same firearms charges. We disagree.
[12] To succeed on this ground Mustafa must persuade this court that his conviction “represents such a repugnant and inconsistent verdict” from that of Lakatos that no reasonable trier of fact could have arrived at this conclusion after proper consideration of the facts in the case: R. v. Ertel (1987), 35 C.C.C. (3d) 398 (Ont. C.A.) at 426-427.
[13] Lakatos was in a fundamentally different position as described in El-Ghafari’s testimony about the use of the gun, and in respect of the additional circumstantial evidence supporting that testimony. For example, there was no evidence that Lakatos used the gun to assault El-Ghafari in any way.
[14] The trial judge provides a clear and rational basis for reconciling the verdicts; Mustafa, in our view, has not met his onus. This ground of appeal must fail.
[15] The remaining grounds of appeal are without merit. The appeals against conviction of all three appellants are dismissed.
Sentence appeal by Lakatos and Mohammad
[16] All three of the appellants were in essence treated by the trial judge as first time offenders. The Crown asked for a sentence between four and five years for each of them. Mustafa and Mohammed each sought a six to nine month conditional sentence including house arrest for half of it. Lakatos has not been successful in obtaining his refugee status. He requested a sentence of time spent in jail – three months – at 2:1.
[17] They were each sentenced to a two years less one day conditional sentence – they are subject to house arrest for all of that time – followed by three years probation. The trial judge held that this sentence could adequately denounce and deter these serious offences, “provided the total period of community supervision is five years, provided the house arrest portion is punitive and long and encompasses the entire conditional sentence period set at the maximum allowable period”.
[18] Neither Lakatos nor Mohammad claim that their sentences are unfit or outside the appropriate range for similar offences and offenders. Rather, they each argue that their lesser role in the offences warranted sentences that were less than they received. Mohammad says his should be half that imposed on Mustafa; he seeks a 12-month conditional sentence. Lakatos, on the same basis, seeks a reduction in his sentence to that of “time served”.
[19] The trial judge carefully reviewed the level of culpability of each of the appellants and weighed all the mitigating and aggravating factors. He ultimately crafted sentences, including periods of probation for each, which he found would “mirror” many of the conditions already imposed as part of the conditional sentence.
[20] We can find no error in principle with respect to the trial judge’s decision on any of the sentences. And, in that regard his decisions are entitled to considerable deference, particularly, as the Crown notes, given that the sentences are at the low end of the range for similar offences. Nevertheless, there is one aspect of the trial judge’s decision in connection with Lakatos that we believe needs to be spoken to.
[21] Counsel for Lakatos also advised the trial judge that, “regardless of [the court’s] disposition here today,” Lakatos would be immediately detained by immigration authorities and deported to Hungary. The trial judge’s impression of Lakatos’ circumstances was described by him this way:
The Canadian Border Services Agency is poised to arrest him at the expiry of his sentence. However, it seems that if a sentence to be served in the community is given, he will be allowed to serve his sentence here.
[22] However, at the time of this appeal Lakatos had been placed into custody by immigration authorities pending the outcome of the appeal. This court has since been advised that Lakatos will remain in custody until he completes his two year less one day conditional sentence and then be deported to Hungary. In other words, he will not be serving his sentence in the community as the trial judge believed and intended; he will be incarcerated.
[23] A fit sentence is one that usually describes a range of appropriate sentencing responses: R. v. Hamilton (2004), 72 O.R. (3d) 1, at para. 85. The issue of deportation is a factor that can be considered in deciding the “appropriate sentencing responses and tailoring the sentence to best fit the crime and the offender”: Hamilton, at para. 156. Indeed the trial judge believed he was doing just that, except his information and belief was incorrect.
[24] We believe that had the trial judge been aware of the real impact of his decision regarding Lakatos that he would have fashioned a different sentence. It appears to us that it would have been one that minimized any period of incarceration. And, as expressed in Hamilton, had he done so, this would have been an example of the human face of the sentencing process: Hamilton, at para. 158.
[25] Thus, it seems appropriate, and necessary to give effect to the trial judge’s intention, that Lakatos incarceration should be minimized. We would, therefore, set aside the sentence of two years less one day conditional sentence and substitute it for one of time served. In doing so Lakatos’ period of incarceration will be minimized and the Canadian Border Services Agency can carry out its responsibilities.
[26] In such a situation, it seems to us to be entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. And, while this indulgence afforded to Lakatos may be a relatively minor one, “there is no countervailing negative impact on the broader societal interests occasioned by the imposition of this sentence”: Hamilton at para. 158. Lakatos is scheduled to be deported to Hungary immediately upon completion of his sentence.
[27] For these reasons, we would grant leave to appeal the sentences of Lakatos and Mohammad. We would, however, dismiss the appeal by Mohammad. As for Lakatos, we would set aside the conditional sentence imposed by the trial judge and replace it with a sentence of time served.
“M. Rosenberg J.A.”
“R.G. Juriansz J.A.”
“H.S. LaForme J.A.”