COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noor, 2015 ONCA 550

DATE: 20150724

DOCKET: C59035

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Rateb Noor Appellant

Christopher A. Avery, for the appellant

Gavin MacDonald, for the respondent

Heard and released orally: July 3, 2015

On appeal from the sentence imposed on March 7, 2013 by Justice Elinore A. Ready of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] When he was 19 years old, Rateb Noor (the appellant) and four others robbed a commercial establishment in Mississauga. The appellant was one of those who entered the premises. Each was gloved, masked and armed. The weapons included a machete, a kitchen-style knife and a BB gun spray painted black to resemble a real firearm.

[2] The occupants, the owner, his son and an employee were tied up with plastic ties the robbers had brought with them. Each occupant was threatened. The robbers fled, taking with them $1,200 in coins from a donation box, wallets, cellphones and some company cheques.

[3] After a six-day trial, the appellant was convicted of robbery, using an imitation firearm when committing robbery, unlawful confinement and wearing a disguise in the commission of an indictable offence. He was sentenced to an aggregate term of 4 years, 3 months in penitentiary, after allowance had been made for time spent in pre-disposition custody.

[4] The appellant takes issue with the sentence imposed on several grounds. Some relate to the credit the trial judge assigned, or failed to assign, to various periods of pre-disposition custody. Others assert errors in failing to accord sufficient weight to the sentencing objective of rehabilitation, in light of the appellant’s youth, and in considering the appellant’s exercise of his right to have a trial, as an aggravating factor on sentence.

[5] We are not persuaded that the trial judge erred in her determination that the offences of which the appellant was convicted warranted a sentence of 5 years’ imprisonment. These offences involved significant planning, including surveillance of the premises, the purchase of weapons, the use of disguises and restraining mechanisms, and threats of maiming and discharge of weapons. They were committed by a youthful offender with, in our view, limited rehabilitative potential, who was then on probation for a cognate offence.

[6] The trial judge considered the time spent in pre-disposition custody and deducted a total of 9 months’ credit from the principal sentence she had settled upon. In respect of the period of 3 weeks spent in custody prior to release on these charges, Crown counsel acknowledges that the credit awarded should be 4.5 weeks rather than 3 weeks, as determined by the trial judge.

[7] We are also of the view that the trial judge erred in her award of credit for the 13-month period during which the appellant was detained on the North York charges on which a stay of proceedings was ultimately entered. This period falls outside the sweep of ss. 719(3) and (3.1), but is properly considered otherwise without the upper limit or ceiling imposed by s. 719(3.1).

[8] The trial judge considered the time spent in custody on the North York charges was related to the charges with which we are concerned. We are of the view however, that the appropriate credit should have been on a 1:1 basis, not on a .5:1 basis.

[9] In the result, we would grant leave to appeal sentence and allow the sentence appeal by reducing the sentence of 4 years, 3 months imposed at trial by 7 months, so that it is now a sentence of 3 years, 8 months.

[10] The appeal from conviction is dismissed as an abandoned appeal.

“David Watt J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”