COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kwakye, 2015 ONCA 108

DATE: 20150213

DOCKET: C57551

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Kwakye

Appellant

John Kaldas, for the appellant

Melissa Adams, for the respondent

Heard and released orally: February 10, 2015

On appeal from the sentence imposed by Justice G.D. Lemon of the Superior Court of Justice on January 4, 2013.

ENDORSEMENT

[1] The trial judge was faced with a difficult sentencing problem. We are satisfied that he made two errors in principle.

The Rehabilitative Potential

[2] The trial judge failed to properly take into account the appellant’s rehabilitative potential and all but dismissed that possibility (see para. 51). In fact, the appellant, an eighteen-year-old first offender with a supportive family and a positive background, had significant rehabilitative potential.

[3] The trial judge, quite properly, noted that rehabilitation plays a lesser role in sentencing for offences like manslaughter. However, rehabilitation remains an important consideration when sentencing an eighteen-year-old first offender on any offence.

The Appellant’s Level of Culpability

[4] The trial judge did not specifically address the appellant’s foresight with respect to the risk that his partner, the shooter, would use the gun in the course of the robbery. In our view, that question was crucial to a determination of the appellant’s degree or level of culpability and, therefore, to a determination of the appropriate sentence. The trial judge erred in principle in failing to address that factual issue.

[5] We will address that issue. In our view, on this record, there is no doubt that a reasonable person would have foreseen the real risk that the shooter would use the gun against a victim in the course of the home invasion. We cannot find, and the Crown does not ask us to find, that the appellant actually foresaw that risk. Objective foresight of that risk is sufficient to support the mens rea required for unlawful act homicide. Objective foresight of a risk is, however, a lower level of culpability than would be a finding that the appellant actually foresaw the risk of the use of the gun. The appellant should have been sentenced on the basis of that lower level of culpability.

[6] Having found two errors in principle, it falls to this court to determine the appropriate sentence. Taking into account the appellant’s rehabilitative potential, and the lower level of culpability described above, but still recognizing the seriousness of the crime and the paramountcy of denunciation and deterrence, we would vary the sentence imposed from 10 years to seven years. Taking into account the credit given for pre-trial custody and bail (three years, four months), the effective sentence is three years, eight months. The sentence is varied accordingly.

“Doherty J.A.”

“E.A. Cronk J.A.”

“H.S. LaForme J.A.”