COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Uribe, 2015 ONCA 257

DATE: 20150414

DOCKET: C58384

Doherty, Cronk and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lilia Maria Uribe

Appellant

Anida Chiodo, for the appellant

Hannah Freeman, for the respondent

Heard and orally released: April 2, 2015

On appeal from the conviction entered by Justice Richard C. Boswell of the Superior Court of Justice, dated July 4, 2013 and the sentence imposed on October 1, 2013.

ENDORSEMENT

[1] The appellant was convicted of robbery and sentenced to two years, less a day. It was the Crown’s theory that the appellant had aided and abetted in the preparation for what turned out to be a very serious armed robbery.

The Conviction Appeal

[2] Counsel for the appellant argues that the verdict is unreasonable. In reviewing the reasonableness of a verdict, this court determines whether a reasonable jury, properly instructed, could have returned that verdict. This inquiry involves a limited re-weighing of the evidence.

[3] The Crown’s case was entirely circumstantial. The appellant chose not to testify or call any evidence.

[4] The trial judge thoroughly reviewed the evidence in his reasons. He identified several primary findings of fact that he made based on that evidence (see pp. 27-30). In our view, those primary findings were reasonably open to the trial judge on the evidence.

[5] The trial judge then dealt with the possible further inferences that could be drawn from the primary findings (pp. 31-33). Among other inferences, he inferred that the car which had been jointly rented by the appellant and her husband, who was one of the perpetrators of the robbery, had been rented specifically for the purpose of the robbery. He also inferred that the appellant was aware of that purpose when she rented the vehicle with her husband. In drawing that inference, the trial judge specifically considered the possibility that the appellant’s husband may have lied to her about the purpose for the car rental. The trial judge ultimately concluded:

It is not impossible that Soto lied to his wife, but I find that it is extremely improbable in all the circumstances. It is also possible that Soto lied to Ms. Uribe and that she learned of the robbery at some time after it had been committed. But I reject this possible inference as unreasonable. Ms. Uribe did not simply learn about the robbery by chance at some time after it was a fait accompli. She was engaged in facilitating entry of the stolen goods into 1276 Islington. She was engaged in a post-robbery gathering of the participants. It makes no sense that Soto would lie to her about the purpose of the Caliber and then do an about-face and engage her in the immediate post-offence activity.

In my view, the only reasonable inference is that Ms. Uribe knew the rental vehicle was to be used in a robbery.

[6] It was open to the trial judge to reason as he did. He was entitled to take into account the post-offence activities of the appellant in determining what inference he should draw as to her knowledge of the robbery at the time she rented the car with her husband. It cannot be said that the verdict is unreasonable. In coming to that conclusion, we have taken into account the appellant’s failure to testify, not because her failure to testify adds weight to the Crown’s case, but because it is relevant in determining whether the inferences drawn by the trial judge were reasonable.

[7] The conviction appeal is dismissed.

The Sentence Appeal

[8] The Crown concedes that the trial judge erred in principle in treating the home invasion aspect of this robbery as an aggravating feature when sentencing the appellant. The trial judge had found that there was no evidence that the appellant was aware that the robbery would involve a home invasion. Consequently, the trial judge should not have treated the home invasion aspects of the robbery as aggravating factors.

[9] Given this error in principle, it falls to this court to impose a fit sentence. The Crown submits that, on a proper understanding of the facts and the appellant’s involvement in the robbery, the sentence of two years, less a day is appropriate. The Crown asks that we dismiss the sentence appeal.

[10] The trial judge gave the appellant six months’ credit for her presentence custody and time spent on stringent bail terms. We agree.

[11] Bearing in mind the seriousness of the crime, but also the appellant’s limited role, her age, the fact that she has no criminal record, and the sentence imposed on some of the other co-accused, albeit for less serious offences, we think a sentence of 12 months’ imprisonment would be appropriate. After credit of six months for the pretrial custody and bail, the net sentence is six months. That sentence runs from the time the trial judge imposed sentence. We are told that the appellant has served five months. Consequently, the appeal from sentence is allowed and the sentence is varied to time served.

“Doherty J.A.”

“E.A. Cronk J.A.”

“C.W. Hourigan J.A.”