COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Okash, 2015 ONCA 58

DATE: 20150130

DOCKET: C57815

Hoy A.C.J.O., van Rensburg and Brown JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Abdifatah Okash Respondent

Carol Cahill, for the appellant

James D. M. Clark, for the respondent

Heard: January 21, 2015

On appeal from the sentence imposed on October 10, 2013 by Justice Ramez Khawly of the Ontario Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The respondent was convicted after pleading guilty to trafficking in a substance held out to be cocaine. The Crown and defence jointly recommended the mandatory minimum sentence of one year in custody (required because the respondent had been convicted for trafficking a schedule 1 substance within the previous ten years), reduced by the respondent’s pre-trial custody of 129 days. The Crown suggested credit at a rate of 1:1, while the defence sought credit at a rate of 1.5:1 based on the loss of earned remission. The sentencing judge imposed the mandatory minimum sentence, but reduced the sentence by giving the respondent 2:1 credit for his pre-trial custody, leaving a total of 107 days to be served. The sentencing judge indicated that he found the mandatory minimum sentence inequitable because it did not permit the court to consider the fact that the substance sold by the respondent was not in fact cocaine. The appellant served the sentence imposed by the trial judge.

[2] The Crown appeals on the basis that the sentencing judge imposed an illegal sentence, when he exceeded the credit for pre-sentence custody permitted under s. 719(3.1) of the Criminal Code. If the correct sentence had been imposed and the trial judge had not erred in giving the respondent two for one credit for each day of pre-sentence custody (instead of the maximum permitted under the Criminal Code of 1.5 for one), the respondent would have a further 65 days to serve in custody.

[3] The respondent acknowledges that the sentence was illegal, but asks for a stay of the balance of the sentence. He relies on the authority of this court, after correcting the sentencing error, to stay the sentence as part of the imposition of a “just sanction”: see R. v. Smickle, 2014 ONCA 49, [2014] O.J. No. 258 (C.A.), at paras. 8 to 20.

[4] The appellant asserts that the respondent should be required to serve the balance of his sentence in custody. Unlike the respondent in Smickle, Mr. Okash has not made any progress toward rehabilitation and his recent arrest, guilty plea and incarceration for a similar offence suggest that he would not suffer hardship by serving the balance of his sentence in custody.

[5] There are factors however that weigh in favour of a stay in this case. The error of the sentencing judge in granting excessive credit for pre-sentence custody was apparent as soon as sentence was passed. The Crown did not draw this error to the attention of the sentencing judge. The Crown appealed, however a lengthy delay ensued before the 15 page transcript of the sentencing hearing was prepared. The respondent pleaded guilty and served the sentence imposed. The period of time remaining to be served is relatively short and the correct sentence is not disproportionate to the sentence that was imposed. In these circumstances, the principles of deterrence and denunciation that are key in sentencing for an offence of this type, would be met without the necessity of re-incarceration of the respondent at this stage in the proceedings.

[6] Accordingly, the appeal is allowed. The correct sentence would have been the mandatory sentence of one year, less 161 days, as 1.5:1 credit for the appellant’s time served in pre-sentence custody. Execution of the balance of the sentence not yet served by the respondent is permanently stayed.

“Alexandra Hoy A.C.J.O.”

“K. van Rensburg J.A.”

“David Brown J.A.”