COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2016 ONCA 937

DATE: 20161213

DOCKET: C61372

Pardu, Benotto and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kentrell Williams

Appellant

Kentrell Williams, in person

Jill Presser, duty counsel

Mabel Lai, for the respondent

Heard: December 8, 2016

On appeal from the conviction entered on August 5, 2015 and the sentence imposed on November 26, 2015 by Justice D. Gray of the Superior Court of Justice, without a jury.

APPEAL BOOK ENDORSEMENT

[1] The appellant was convicted of aggravated assault, firearm offences and attempt to obstruct justice. He received a global sentence of 8 years imprisonment: 5 ½ concurrent for the assault and firearms; 2 ½ years consecutive for the obstruction of justice.

[2] He appeals his convictions of obstruction of justice and the 2 ½ year consecutive sentence imposed.

[3] The appellant entered a hotel room where his girlfriend, a sex worker, was in an apparent dispute with a customer. An altercation occurred, a gun was discharged and the appellant was charged with attempted murder.

[4] A key issue at trial was who had the gun: the appellant or the customer.

[5] During the preliminary inquiry, the appellant passed a note to his girlfriend – then a co-accused. In it, he asked her to say the gun was the customer’s. The note said she should read it in private and destroy it. She gave it to her lawyer. These facts are not in dispute.

Conviction appeal

[6] The appellant submits on his own behalf that he did not know that his girlfriend was going to testify therefore the requisite intent was not established and the conviction should be set aside.

[7] We do not accept this submission.

[8] The trial judge considered all the circumstances of the note-passing including the fact that it was in court, during the preliminary inquiry. It was open to him to infer that the appellant had the requisite intent and he made that finding of fact. There is no basis for appellate intervention.

Sentence

[9] With the assistance of duty counsel, the appellant submits that the trial judge erred in principle when he imposed a 2 ½ year sentence.

[10] First, she submits it was excessive, harsh and outside the appropriate range.

[11] Second, she submits that the sentencing reasons reflect that the trial judge double-counted the length of the sentence.

[12] We conclude that the sentence, while substantial was not unfit. The maximum sentence is 10 years. We see no error in principle.

[13] The trial judge correctly noted that obstruction of justice goes to the very heart and foundation of our criminal justice system.

[14] The appellant, through duty counsel also submits that the sentencing judge double-counted. His reasons indicate that he considered the conduct of each offence to be an aggravating factor in the other offences.

[15] In our view, the impugned sections of the reasons reflect nothing more than – in the trial judge’s view – all the facts overlap and must be taken together. We do not accept that he double-counted. It was open to him to consider the seriousness of the offence which underlay the attempt to obstruct.

[16] Lastly, the appellant submitted on his own behalf that it was unfair that he received 2 ½ years when he thought the Crown was only asking for 1 year in the context of a 2 year maximum. In fact, the Crown was incorrect. As pointed out by the trial judge, the maximum sentence is 10 years.

[17] The appellant submits that had he known he might get 2 ½ years he may have taken a different course of action – especially with a 10-year maximum.

[18] We see no unfairness here given that the Crown’s request for 1 year on the obstruct charge was in the context of a submission for a 10 year global sentence.

[19] For these reasons, the appeal as to conviction is dismissed.

[20] Leave to appeal the sentence is granted but the appeal is dismissed.