Court of Appeal for Ontario

Citation: R. v. Osman, 2016 ONCA 64

Date: 20160122

Docket: C60874

Weiler, Tulloch and Brown JJ.A.

Between

Her Majesty the Queen

Respondent

and

Isman Mohamed Osman

Appellant

Counsel:

Eva Taché-Green, for the appellant

Brock Jones, for the respondent

Heard and released orally: January 20, 2016

On appeal from the sentence imposed on March 5, 2015 by Justice Paul B. Kane of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant seeks leave to appeal sentence and, if leave is granted, appeals his sentence of eight years. The appellant, who was 25 years old at the time, was convicted of six counts of robbery during a one-month period, attempted robbery (s. 462(a)), conspiracy to commit robbery (s. 465(c)) and flight from police.

[2] In sentencing the appellant, the trial judge rejected the defence position that the robberies were part of a “crime spree” and that concurrent sentences should be imposed. He arrived at a total sentence of 21.5 years, which he adjusted to an eight-year global sentence after applying the principle of totality. The appellant was then given credit for 17 months pre-trial custody on a 1.5 to 1 basis.

[3] The issues on appeal are whether the trial judge erred in principle in imposing consecutive sentences, whether he properly took into account rehabilitation and whether the overall sentence was fit.

[4] The appellant’s first submission is that the sentencing judge ought to have counted the 28 months the appellant was serving for two prior related offences as part of the total sentence arrived at. The decisions on which he relies are R. v. Johnson, 2012 ONCA 339, at para. 25 and R v. Parry, 2012 ONCA 171, [2012] O.J. No. 1209 (C.A.), at paras. 22-24.

[5] While the sentencing judge did not specifically advert to these decisions, a trial judge is presumed to know the law. We also note that in both decisions relied on by the appellant, pleas of guilt to the subsequent offences played a significant role in the totality of the sentence. This case involved a nine day trial on the issue of identity. We see nothing in the trial judge’s reasons to suggest he did not take proper consideration of the appellant’s prior sentence in considering the global sentence he imposed. The trial judge gave the appellant credit for pretrial custody while serving his original sentence.

[6] The appellant further submits that the trial judge erred in not placing sufficient weight on the appellant’s rehabilitation prospects and that the overall sentence was crushing.

[7] In our opinion the trial judge did take into consideration the appellant’s rehabilitation prospects. He referred to his younger age as a factor. Contrary to counsel’s submission, he did consider Mr. Osman’s acknowledgment that his conduct was stupid. He also specifically referred to what Mr. Osman said in addressing the court.

[8] Insofar as the issue of whether a consecutive versus concurrent sentence ought to have been imposed and the totality of the sentence is concerned, the trial judge’s decision to give the appellant consecutive sentences was an exercise of his discretion that warrants a high degree of deference absent an error in principle. We see no error in principle. The trial judge appropriately balanced the aggravating and mitigating factors. We are of the opinion that the trial judge took into account totality by discounting the sentence as he did from 21 years and then giving the appellant credit for pre-trial custody of 17.5 months.

[9] Accordingly while leave to appeal sentence is granted the appeal as to sentence is dismissed.

“Karen M. Weiler J.A.”

“M. Tulloch J.A.”

“David Brown J.A.”