Court of Appeal for Ontario
Citation: R. v. Houdaji, 2013 ONCA 25
Date: 20130117
Docket: C56043
Before: Weiler, Blair and Rouleau JJ.A.
Between:
Her Majesty the Queen
Respondent
and
Nematollah Houdaji
Appellant
Counsel:
Misha Feldmann, for the appellant
Megan Stephens, for the respondent
Heard and released orally: January 11, 2013
On appeal from the sentence imposed on August 16, 2011 by Justice Ronald A. Minard of the Ontario Court of Justice.
ENDORSEMENT
[1] The appellant pled guilty to aggravated assault and failure to comply with a probation order. He received a global sentence of five years imprisonment less nine months for pre-trial custody apportioned as 42 months for aggravated assault and nine months consecutive for the breach of probation.
[2] The assault occurred on January 25, 2011 when the appellant approached his ex-wife and Mr. Zakaria as they were about to meet at a location near the appellant’s ex-wife’s home. The appellant exited his truck wielding a crow bar or tire iron. As he approached his ex-wife Mr. Zakaria intervened and was struck five times by the appellant causing lacerations to the scalp, a calf muscle injury and injuries to the shoulder and neck. At the time of the assault, the appellant was bound by a probation order prohibiting him from contacting his ex-wife.
[3] The appellant seeks leave to appeal his sentence and appeals on the basis that the sentencing judge erred in principle on two bases:
He held that there had been an absence of any substantial expression of remorse and used that as an aggravating factor and;
He observed that the appellant was at high risk to reoffend although he did not have any expert evidence to this effect and imposed a sentence of preventive detention.
[4] We disagree. The sentencing judge concluded that the appellant had shown little remorse. This was open to him on the record. As to the suggestion that the trial judge used it as an aggravating factor, we do not read his reasons in that way. The finding that he had very little remorse came after the sentencing judge had dealt with the aggravating factors. It was simply an indication that the sentencing judge rejected the suggestion that remorse should operate as a mitigating factor in this case.
[5] Finally, we see no error in the sentencing judge having found the appellant at a high risk of reoffending. This finding was entirely reasonable having regard to the appellant’s pattern of escalating aggressive conduct. The sentence imposed was fit and did not involve a period of preventive detention.
[6] For these reasons, leave to appeal is allowed, but the appeal is dismissed.
“K.M. Weiler J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”