COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cox, 2015 ONCA 769

DATE: 20151110

DOCKET: C58141

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Cox

Appellant

Richard A. Fedorowicz, for the appellant

Craig Harper, for the respondent

Heard and released orally: November 6, 2015

On appeal from the conviction entered on August 1, 2012, with reasons reported at 2012 ONSC 4397, and the sentence imposed on September 7, 2012 by Justice Michael Code of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant, Tristan Cox, appeals from his conviction on robbery and firearm-related charges stemming from the robbery and shooting of Arif Berkedle in a FIDO retail store in the Jane-Finch Mall. The appellant also seeks leave to appeal from the sentence imposed of 11 years imprisonment, less 22 months pre-sentence custody.

CONVICTION APPEAL

[2] On his conviction appeal, the appellant advances two main arguments.

Misapprehension of Evidence

[3] First, the appellant submits that the trial judge misapprehended material evidence by disregarding two pieces of evidence. The first was the medical evidence concerning the entry point and trajectory of the bullet in the thigh of the shooting victim, Berkedle. The treating surgeon testified that the gunshot had entered the lower, back portion of Berkedle’s right thigh and exited the front of the thigh just above the knee. The appellant submits that this evidence corroborated the appellant’s testimony that Berkedle had produced and discharged the firearm, yet the trial judge gave it no weight.

[4] The second piece of evidence was the agreed fact that no gunshot residue (“GSR”) particles were identified on the tapelift samples from the hands of the appellant. The appellant submits that trial judge made no reference to the GSR evidence, yet that evidence undermined the Crown’s theory that the appellant shot Berkedle.

[5] We do not accept the appellant’s argument. The trial judge did not disregard the medical evidence about the trajectory of the gunshot. He fully and accurately summarized the evidence in paras. 45 and 46 of his reasons. He took it into account, but concluded that the evidence did not assist in resolving the central issue of credibility concerning who fired the gun during the robbery because the evidence was just as consistent with the appellant firing the gun while Berkedle turned away.

[6] The evidence could not reasonably be understood as demonstrating the exact positions of the appellant and Berkedle when the shot was fired. According to the appellant and the co-accused, they were struggling, and according to the evidence of Berkedle’s sister, which was accepted by the trial judge, they were pushing. Given the state of that evidence, it was open to the trial judge to place greater weight on the other evidence to resolve the central issue of credibility.

[7] Although the trial judge did not refer to the GSR evidence in his reasons, during an exchange with appellant’s counsel in closing submissions the trial judge explained that he could not take judicial notice of whether a person should or should not have GSR on his hands after firing a gun. Expert evidence was required, in the trial judge’s view, and the appellant did not call any on that issue. We agree with the trial judge’s approach to the GSR evidence.

Application of Different Standards of Scrutiny to the Evidence

[8] The appellant’s second submission is that the trial judge subjected the evidence of the defence to a stricter level of scrutiny than that of the Crown. We see no merit in that argument. In his reasons, the trial judge meticulously reviewed the evidence and explained clearly how he resolved the central issue of credibility concerning who was carrying the gun during the robbery. In paragraphs 24 through 35 of its factum, the Crown argues that when the specific impugned findings of the trial judge are read within his larger treatment of the evidence, no uneven scrutiny of the evidence is disclosed. We accept that submission of the Crown. When read in their totality, the trial judge’s reasons disclose that he scrutinized the evidence with an even hand.

[9] The appellant’s appeal from conviction therefore is dismissed.

SENTENCE APPEAL

[10] The appellant advances three grounds of appeal in respect of the 11-year sentence imposed on him.

[11] First, the appellant submits the trial judge erred in his treatment of the aggravating and mitigating factors for sentencing. Specifically, the appellant contends the trial judge erred in finding that the offence was planned to some extent, thereby acting as an aggravating factor, while at the same time giving insufficient weight to the appellant’s youth and prospects for rehabilitation.

[12] We do not accept this submission. Ample evidence supported the trial judge’s finding that the robbery was planned to some extent, including the evidence of a store owner, Mr. Saini, who testified that he saw the appellant and his co-accused, Mr. Koroma, walk and talk together for about five minutes in the vicinity of the FIDO store, as well as the evidence of his co-accused who told the appellant he was going to “punk off” Mr. Berkedle and take money from him.

[13] The trial judge expressly identified the appellant’s youth and status as a first offender as mitigating factors. He observed that given the appellant’s age, there was still hope he could change. However, he concluded that the appellant’s prospects of rehabilitation were not particularly strong. That finding was open to the trial judge to make on the evidence before him, as was his finding that the fact the appellant was a first offender was “far outweighed by the fact that he fired the gun in a crowded public place causing life-threatening injuries to the victim, all in furtherance of some petty or criminal grievance.”

Fitness of Sentence

[14] The appellant’s second submission is that the total sentence imposed was excessive because the trial judge misidentified the upper range of sentence for the offence of discharging a firearm with intent to endanger life. According to the appellant, the established range of sentence for the discharge of a firearm in the course of a robbery, resulting in the wounding of a person, is seven to eleven years.

[15] The appellant concedes the sentence imposed of 11 years does fall within that range, although at the upper end. We agree with that concession to the extent that most sentences will fall within the 7 to 11 year range, although there may be significantly higher sentences: see R. v. Young, 2009 ONCA 891, leave to appeal refused 2011 CanLII 80853 (S.C.C.).

[16] The trial judge gave lengthy reasons for the sentence he imposed. He situated the appellant’s offences in the mid-range as they were very serious, and he arrived at a range of 11 years concurrent for Counts 1 and 3 – robbery while armed with a firearm and the discharge of a firearm at Berkedle with the intent to endanger his life. We see no error in his reasons. The sentence was entirely fit given the nature and location of the offences.

Credit for Pre-Sentence Custody

[17] The final ground of appeal of the sentence concerns the trial judge’s award of credit for pre-sentence custody at 1:1 for the 22 months of pre-sentence custody. Sentencing in this case took place before the decision of the Supreme Court of Canada in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. In light of that decision, the appellant submits that he is entitled to credit at a rate of 1.5:1. The Crown concedes the point, and we see no reason in this case to depart from the general approach set out in Summers of awarding credit for pre-sentence custody at the rate of 1.5:1.

[18] We agree that the effective sentence should be 11 years as imposed by the trial judge. Giving full credit for the presentence custody, the actual sentence on Count 3 is varied from 9 years, 2 months to 8 years, 3 months. The sentences on the other counts, which were all concurrent to the sentence on Count 3, remain the same.

[19] Accordingly, we grant the appellant leave to appeal his sentence, and the sentence is varied accordingly.

“Doherty J.A.”

“S.E. Pepall J.A.”

“David Brown J.A.”