COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pinas, 2015 ONCA 136

DATE: 20150227

DOCKET: C58930

MacFarland, Tulloch and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gauthuri Pinas

Appellant

Scott Pearl and Diana Lumba, for the appellant

Amy Rose, for the respondent

Heard and released orally: February 24, 2015

On appeal from the sentence imposed on May 5, 2014 by Justice Alison Harvison Young of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Ms. Pinas appeals from a one-year sentence of imprisonment imposed following her guilty plea to robbery. Trial defence counsel who was not counsel on the appeal did not advise the sentencing judge until after sentence was imposed that a co-accused with similar participation in the offence had received a six-month sentence. Further, trial counsel did not advise the sentencing judge at all that the appellant was a permanent resident who would lose her right to appeal to the Immigration Appeal Division if sentenced to a term of imprisonment of six months or more.

[2] As indicated in R. v. Pham, 2013 SCC 15, [2013] S.C.J. No. 100, at para. 24, “an appellate court has the authority to intervene if the sentencing judge was not aware of the collateral consequences of the sentence for the offender, or if counsel have failed to advise the judge on this issue.”

[3] We therefore admit the fresh evidence in relation to the immigration consequences and turn to a consideration of the appropriate sentence.

The nature of the offence

[4] The appellant was driving her friend, Tanya Campbell home. They picked up two men whom they knew slightly at a convenience store. The men asked both women if they knew of any flashy people in the area. The appellant mentioned Rudy Lamur and described him as wearing a gold chain. They picked up a third man at the request of the other two. The men told the appellant to get Lamur’s telephone number. The girlfriend Campbell contacted Lamur to ask if she could visit him. Lamur agreed.

[5] Campbell went to Lamur’s door. The appellant remained in her car, but realized by that point that the men planned to rob Lamur. The men rushed past Campbell, tied up Lamur and another occupant and threatened them. Campbell returned to the appellant’s car. The men left the Lamur home, loaded the items they had stolen into the appellant’s car, and the appellant, still with her girlfriend in the car, drove away at the men’s direction. The appellant did not know the men had weapons. The men removed all of the stolen items from her car.

The offender

[6] At the time of the offence, the appellant was 24 years old and had no criminal record. She is a permanent resident of Canada. She has a troubled family history and childhood. She has two children, aged 10 and four. One of her children is disabled. She was remorseful and regretted her involvement in the robbery from the time of the offence. She assisted police with their investigation.

[7] The Crown does not suggest that the six-month sentence imposed on the friend was unfit.

[8] In our view, there is insufficient basis to distinguish between these two offenders. While the appellant’s friend, Tanya Campbell, was some six years younger, she retained Lamur’s stolen debit card, unlike the appellant, who did not keep any of the stolen property. The appellant and Campbell played similar roles and had similar levels of moral culpability. Neither had a record.

[9] Under these circumstances, a similar sentence of six month duration would have been appropriate for the appellant.

[10] Now, having the benefit of information about the immigration consequences of such a sentence, it falls to the court to consider how to weigh those consequences in the sentencing balance.

[11] As observed in R. v. Hamilton, 2004 5549 (ON CA), 2004, 72 O.R. (3d) 1, at para. 158:

If a trial judge were to decide that a sentence at or near two years was the appropriate sentence in all of the circumstances for [the offender], the trial judge could look at the deportation consequences for [the offender] of imposing a sentence of two years less a day, as opposed to a sentence of two years. I see this as an example of the human face of the sentencing process. If the future prospects of an offender in the circumstances of [the offender] can be assisted or improved by imposing a sentence of two years less a day, rather than two years, it is entirely in keeping with the principles and objectives of sentencing to impose the shorter sentence. While the assistance afforded to someone like [the offender] by the imposition of a sentence of two years less a day rather than two years may be relatively small, there is no countervailing negative impact on broader societal interests occasioned by the imposition of that sentence.

[12] The appellant has resided in Toronto since she was seven years old. She has sole custody of two young children, one of whom has been diagnosed with autism spectrum disorder. The appellant, although born in the Netherlands, no longer understands or speaks Dutch. She has no family or close ties in the Netherlands. Her children, were they to accompany her, would be uprooted from the only community they have known and all of their family and community support, except for their mother.

[13] Reduction of the sentence by one day would not take the sentence outside the acceptable range and would improve the rehabilitative prospects for the appellant without any countervailing negative impact on broader societal interests.

[14] Accordingly, the sentence imposed following plea is set aside and a sentence of six months incarceration less a day is substituted, which has now been served.

“J. MacFarland J.A.”

“M. Tulloch J.A.”

“G. Pardu J.A.”