COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ghadban, 2015 ONCA 760
DATE: 20151109
DOCKET: C58474
Sharpe, Hourigan, Benotto JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mahmoud Ghadban
Appellant
Mahmoud Ghadban, in person
Jill Presser, duty counsel
John Neander, for the respondent
Heard: October 7, 2015
On appeal from the conviction imposed on April 3, 2012 and the sentence imposed on June 26, 2012 by Justice David Paciocco of the Ontario Court of Justice.
Sharpe J.A.:
[1] The appellant was convicted of robbery and conspiracy to commit robbery and sentenced to concurrent sentences of two years’ imprisonment and three years’ probation on each count. At the outset of oral argument, he abandoned his conviction appeal, indicating that he wished to accept responsibility for the offence and to express his remorse.
[2] His sentence appeal is based upon fresh evidence indicating that he has made significant progress towards rehabilitation since the sentence was imposed.
The offence
[3] The trial judge found that the appellant was a party to a home invasion robbery. The appellant knew the intended victim who was an alleged drug dealer. The appellant went to the victim’s apartment in the company of two other men, described in these proceedings as the “Jamaicans”. The appellant knocked on the victim’s door, identified himself and thereby induced the victim to open the door. As soon as he did so, the Jamaicans forced their way into the apartment. The appellant left and the Jamaicans ransacked the apartment looking for money. The victim was ordered to remain seated while they did so. The appellant was arrested waiting next to the car used by the perpetrators. The Jamaicans were not apprehended. The trial judge rejected the appellant’s evidence that he did not know that the other two men planned to commit robbery.
The sentence
[4] The trial judge found that as the victim was robbed in his home and subjected to a strongly implied threat of physical harm, a stern approach was called for. He noted, however, that no weapons were used and that there was no actual violence or injuries inflicted and the perpetrators were not disguised. He described the offence as being “not one of the more aggravated home invasions that has plagued our community”.
[5] The trial judge found that appellant’s role, while limited, was indispensable to gaining entry into the apartment.
[6] The appellant was 27 years old at the time of sentencing and 25 at the time of the offence. He has a prior youth court conviction for robbery (2002), another youth court conviction for assault causing bodily harm (2003), an adult conviction for assault and failure to comply with a probation order (2006).
[7] The trial judge noted that there was no expression of remorse and that the sentence must be structured to emphasize specific deterrence, that is, to tell the appellant that he must accept responsibility for his actions. The trial judge observed that the appellant was immature and irresponsible but that he had a supportive family and opportunities to change. He found that rehabilitation was an important factor. He stated: “Mr. Ghadban is at the crossroads. The next few years will determine whether he becomes a productive citizen and family man or whether he becomes a career criminal.”
The fresh evidence
[8] The appellant was incarcerated at Millhaven Institution for 7 weeks and 2 days following his conviction. During that time, Millhaven was in transition from an assessment to a maximum security facility and the appellant was placed in 23-hour confinement.
[9] The appellant was released on bail pending his trial seven days after his arrest and he has been on bail pending appeal since August, 2012. As a result, apart from a short period of pretrial custody and the 7 weeks he spent in Millhaven following his conviction, he has now been in the community on a recognizance for almost five years. The conditions of his bail pending appeal imposed a 10 pm to 6 am curfew and required him to reside with his parents.
[10] With the help of his family, he retained counsel to launch an appeal. The Crown consented to bail pending appeal on August 16, 2012. No progress was made in perfecting the appeal, in part because counsel suffered an injury and in part because the appellant was in arrears paying the full retainer. Bail pending appeal was extended on April 19, 2013. A second counsel was retained. That counsel filed a factum that was plainly inadequate and there were ongoing issues regarding full payment of the retainer. Counsel asked to be removed from the record. On April 9, 2015, the court ordered that counsel be removed from the record if he did not file a revised factum by May 11, 2015. No revised factum was filed and on May 13, 2015, it was ordered that this appeal proceed as an inmate appeal.
[11] Since the time of sentencing, the appellant has taken significant steps towards rehabilitation. He enjoys the strong support of his parents and siblings. He has married and has two children, one aged two years and the other nine months. He has also assumed parental responsibilities for his wife’s older child. He is gainfully employed and is the sole source of support for his wife and children. His employer describes him as a good employee who has a good attendance record and great working relationships with his fellow employees. He has volunteered for a political campaign and for the United Way. The United Way Donor Relations Officer describes him as “an incredible ambassador” and as “both reliable and passionate about people in the Ottawa community”.
Issue
[12] The appellant argues that in view of the fresh evidence, the sentence imposed by the trial judge is no longer fit and should be reduced or stayed.
Analysis
[13] It is not disputed that the sentence was fit when imposed. The question is whether it should be reduced or stayed in the light of the fresh evidence. The Crown does not oppose the admission of the fresh evidence.
[14] It is well-established that if there is fresh evidence to show a change of circumstances after a fit sentence was imposed, an appellate court may “exercise its discretion and act on it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard”: Clayton Ruby, Gerald J. Chen and Nader R. Hasan, Sentencing, 8th ed. (Markham: LexisNexis Canada Inc., 2012) at pp. 169-70); R. v. Johnson, [2006] O.J. No. 2182 (C.A.) at para. 11.
[15] In R. v. Sipos, 2014 SCC 47, [2014] 2 S.C.R. 423, at para. 30, the Supreme Court of Canada explained the balance that needs to be struck between arriving at sentences that are fit and just for offenders in light of the circumstances at the time of the appeal and respecting the need for finality and to avoid undermining the sentencing process by undue emphasis on after-the-fact-developments:
Fresh evidence addressing events that have occurred between the time of sentencing and the time of the appeal may raise difficult issues which bring competing values into sharp relief. On one hand, we must recognize, as Doherty J.A. put it in R. v. Hamilton (2004), 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, at para. 166, that “[a]ppeals take time. Lives go on. Things change. These human realities cannot be ignored when the Court of Appeal is called upon to impose sentences well after the event.” However, we must equally pay attention to the institutional limitations of appellate courts and the important value of finality. Routinely deciding sentence appeals on the basis of after-the-fact developments could both jeopardize the integrity of the criminal process by undermining its finality and surpass the appropriate bounds of appellate review: Lévesque, at para. 20; R. v. Smith (2005), 2005 ABCA 404, 376 A.R. 389 (C.A.), at paras. 21-25.
[16] The fresh evidence demonstrates that the appellant has made very significant changes in his life in the three years since the sentence was imposed. He has undertaken, assumed and fulfilled the responsibilities of a husband and a father. He has become a trusted and productive employee. He has been active as a community volunteer. He now accepts responsibility for his crime. He has complied with his conditions of release and there has been no recurrence of criminal behaviour in the five years since this offence was committed.
[17] While the appellant was able to achieve something of a turn-around in his life as a result of being on bail pending appeal, and while the delay in getting the appeal heard was caused in part by his inability to come up with the funds required to retain counsel, there is no suggestion that he artificially manipulated or “gamed” the situation.
[18] The trial judge quite properly emphasized the need for a sentence that reflected the needs of specific deterrence and rehabilitation in the circumstances of this case. It would appear that those needs have now been met and that neither factor would be fostered by maintaining the original sentence. In his submission to us, the appellant stated that the words of the trial judge had a profound effect upon him, that he has taken what the trial judge had said to heart and made a determined effort to turn his life around. Simply put, the appellant took the right path at the “crossroads” described by the trial judge and has become “a productive citizen and a family man” as the trial judge hoped he would.
[19] I agree with the respondent Crown that a stay of the remaining custodial portion of the sentence would not be an appropriate remedy. Stays of sentence are sometimes granted in successful Crown sentence appeals. If the court finds that the sentence imposed at trial was unfit, it imposes what it considers a fit sentence, but then exercises its discretion to avoid the injustice that would result from re-incarcerating the offender who has served the original sentence and has gotten on with his or her life.
[20] Here the situation is different. The sentence imposed at trial was fit and it is the offender who appeals. The court is not asked to increase a sentence that has already been served and we do not have before us someone who “has done his time” only to be faced with further punishment on account of a Crown appeal.
[21] On this appeal we must directly confront the different question of whether the fit sentence that was imposed should be reduced because of the progress the offender has made while awaiting the hearing of this appeal.
[22] The answer to that question is not easy. This was a serious offence that ordinarily, would clearly call for more than seven weeks imprisonment. On the other hand, we are dealing with a case in which, however inadvertently, the criminal process and the sanction that was imposed have actually worked. The two sentencing objectives emphasized by the trial judge, specific deterrence and rehabilitation, have now been satisfied.
[23] The only justification for requiring this offender to return to prison at this point would be to satisfy the need for general deterrence and denunciation. In my view, any gain in general deterrence would be minimal and would be offset by the negative effect on the appellant’s ongoing rehabilitation. I would maintain that the two year sentence was fit when imposed and it is only because of the very unusual significant strides taken by the appellant since sentence was imposed that I would alter the sentence. To the extent sentences imposed by the courts “send a message”, the message sent by reducing the sentence would be that where an offender takes unusual steps to turn his life around, those steps will be recognized by the court. In my view, the gain achieved by way of encouraging social peace and harmony from that message would greatly exceed any gain achieved by way of general deterrence and denunciation if he were required to serve the full term of his sentence at this stage.
[24] The appellant’s life would be devastated if he were to be sent back to jail at this point. His family would be seriously disrupted and he would be diverted from the strong direction he has taken towards rehabilitation. To return him to jail would, as in R. v. Porter (1980), 26 Nfld. & P.E.I.R. 26 (Nfld. C.A.), at para. 11, “have the effect of sacrificing the principle of rehabilitation for the principles for punishment and deterrence”. See also R. v. Sinclair, 2012 MBCA 24, 280 Man.R. (2d) 31, at para. 24: “I consider it to be counter-productive to sacrifice the gains that have been achieved in terms of rehabilitation to ‘foster the principles of denunciation and general deterrence by means of incarceration’” (citing Gilles Renaud, The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis Canada Inc., 2009) at para. 5.97).
[25] In my view, this is a very unusual case. To ignore the efforts of the appellant and the consequent “human realities” (R. v. Hamilton) of the case would be contrary to sound sentencing policy and the interests of justice.
Disposition
[26] For these reasons, I would grant leave to appeal sentence and reduce the custodial portion of the sentence to time served. In all other respects, the sentence is maintained. The conviction appeal is dismissed as abandoned.
Released: November 9, 2015
“Robert J. Sharpe J.A.”
“I agree C.W. Hourigan J.A.”
“I agree M.L. Benotto J.A.”