Court of Appeal for Ontario

Citation: R. v. Sahota, 2015 ONCA 336

Date: 20150512

Docket: C58190

Watt, Pepall and Benotto JJ.A.

Between

Her Majesty the Queen

Respondent

and

Charnjit Sahota

Appellant

Counsel:

Anida Chiodo, for the appellant

Joanne Stuart, for the respondent

Heard and released orally: April 29, 2015

On appeal from the sentence imposed on April 5, 2013 by Justice Allan Gary Letourneau of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant participated in a riot at Joyceville Institution about four years ago. He and several other inmates attacked a lesser number of inmates, who barricaded themselves in a room in the prison. They then focused their attack on a single inmate who suffered significant injuries that required surgery and resulted in permanent memory loss.

[2] The appellant pleaded guilty to aggravated assault as an included offence on a count that charged him with attempted murder. He was sentenced to a term of imprisonment of seven and one-half years less 45 days’ credit for pre-sentence custody. Trial counsel for the Crown had sought a sentence of eight to ten years. Trial counsel for the appellant had argued in favour of a sentence of three and one-half to five years.

[3] The appellant’s participation in the attack was considerable, substantially in excess of anything done or even attempted by other inmates. He participated in the initial attack along with several others. Several minutes later, he returned to the room, in which the victim lay, obviously unconscious and severely injured, in a pool of blood on the floor. The appellant was armed with a pool cue. He spat on the victim, then proceeded to strike and spear him in his genital area. He pulled down the victim’s pants, looked at his genital area, released the pants and speared the victim again in his genital area. He then stomped on the victim before leaving the room.

[4] The appellant’s principal complaint here is that the sentencing judge failed to properly apply the principle of parity in determining a fit sentence for the appellant and for his offence. In order to advance this claim of error, the appellant and respondent have agreed that we should consider, as fresh evidence, transcripts of the proceedings involving other participants who pleaded guilty before the same judge, to the same or related offences. We have received, and considered, that evidence.

[5] We are not prepared to interfere with the sentence imposed.

[6] Section 718.2(b) of the Criminal Code requires a sentencing judge to take into account the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This principle is one of parity, not of equivalence. It does not require equivalent sentences. Nor does it forbid disparate sanctions for persons involved in the same offence. Were that so, it would run afoul with the fundamental principle of sentencing in s. 718.1, that of proportionality.

[7] The principle of parity means that any disparity between sentences for different offenders in a common venture requires justification. The appellant’s participation in this offence was, as mentioned, of significantly greater gravity than that of the others. His participation did not end, as did the others, with the first attack. He returned minutes later, with a weapon, a pool cue, spat on the victim, who was clearly unconscious, and then proceeded to strike him repeatedly with the pool cue.

[8] The sentencing judge imposed sentences on the other participants who pleaded guilty. Each of those sentencings proceeded on the basis of a joint submission. The sentencing judge was of the view that the joint submissions did not bring the administration of justice into disrepute. His concurrence with those submissions did not compel him to impose an equivalent or near equivalent sentence on the appellant for an offence that reflected a significantly greater degree of moral blameworthiness.

[9] Nor are we persuaded that the trial judge gave inappropriate weight to the strength of the Crown’s case against the appellant. Unlike other participants who may have challenged the Crown’s case on identification, the appellant was unmasked and readily identifiable. It is not inappropriate for a trial judge to consider that a guilty plea in the face of an overwhelming case may not be accorded the same weight as one in which an accused pleads guilty and gives up significant litigable issues.

[10] In the end, we are not persuaded that the sentence imposed reflects an error in principle, an overemphasis on or failure to consider a relevant factor, or the imposition of a sentence outside the range of sentence appropriate for this offence and this offender.

[11] While leave to appeal sentence is granted, the appeal from sentence is dismissed.

“David Watt J.A.”

“S.E. Pepall J.A.”

“M.L. Benotto J.A.”