COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Dirie, 2013 ONCA 309

DATE: 20130513

DOCKET: C54815

Rosenberg, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Abdi Dirie

Applicant/Appellant

Abdi Dirie, appearing in person

Margaret Bojanowska, acting as duty counsel

Mabel Lai, for the respondent

Heard: January 14, 2013

On appeal from the sentence imposed on December 6, 2011 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] The appellant appeals the sentence of 24 months imprisonment and probation imposed by MacDonnell J. following the appellant’s conviction on 6 counts of robbery, 2 counts of unlawful confinement, one count of being masked with intent and one count of using an imitation firearm while committing robbery. These offences arise out of a serious armed robbery at a Fortino’s grocery store in the City of Toronto.

[2] Shortly after 10:30 p.m. on the evening of March 26, 2009, four masked and hooded men entered the store. While the store was closed to the public at that time there were a number of employees present. The men were armed with what turned out to be imitation firearms, including an imitation machine gun. The trial judge found that the appellant was carrying the imitation machine gun. The men rounded up the store employees at gunpoint, confined them and stole their property as well as money from the store safe. Evidence that about two hours before the robbery four men, including the appellant, entered the store to conduct surveillance demonstrated some planning of the robbery.

[3] As the trial judge recognized, the most important mitigating factors were the appellant’s age and lack of prior criminal record. At the time of the offence the appellant was only 18 years of age. By the time of sentencing he was 21 years of age. The appellant did not complete high school and his future plans were uncertain. The appellant was on bail for approximately 18 months on strict conditions. He also spent 13 ½ months in pre-sentence custody when his bail was cancelled.

[4] In his reasons, the trial judge referred to similar cases, including R. v. Burnett, 2007 ONCA 478 where this court reduced a penitentiary sentence to two years less one day imprisonment. Like this case, the accused in Burnett robbed a store while masked and armed with an imitation firearm. The trial judge distinguished Burnett on the basis that the circumstances of the robbery in that case were less serious and Burnett’s prospect for rehabilitation was much better thus justifying giving less weight to general deterrence. In this court, the appellant submits that Burnett cannot be distinguished from this case, at least not to the extent of justifying a sentence of 54 months imprisonment, which was the effective sentence imposed on the appellant after credit for pre-sentence custody and time spent on strict bail conditions.

[5] We have not been persuaded that the trial judge erred in principle or that the sentence was manifestly unfit. We agree with the trial judge that Burnett was indeed a much less serious offence. The offence committed by the appellant involved more planning, the involvement of other perpetrators, the use of what appeared to be more dangerous weapons, and the robbery and confinement of many more people. Despite the appellant’s age and lack of criminal record, the trial judge was right to give significant weight to general deterrence and denunciation. He also took into account other objectives including individual deterrence and rehabilitation. But, as the trial judge noted, the appellant’s moral blameworthiness was very high. His role, brandishing the imitation machine gun while the victims were rounded up was a central component of the scheme.

[6] Accordingly, while leave to appeal sentence is granted, the appeal is dismissed.

“M. Rosenberg J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”