Court of Appeal for Ontario

Date: 2017-02-27 Docket: C57983 Judges: LaForme, Pepall and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Sunday Mawut Appellant

Counsel

David Parry, for the appellant Shawn Porter, for the respondent

Heard: February 23, 2017

On appeal from the sentence imposed on April 5, 2013 by Justice Brian O'Marra of the Superior Court of Justice.

Endorsement

[1] Mr. Mawut was convicted of multiple charges stemming from an armed robbery in 2011. He was sentenced to nine and a half years imprisonment less approximately 18 months' pre-sentence custody. He has abandoned his conviction appeal and seeks leave to appeal his sentence. In this regard, he argues the trial judge made two errors.

[2] First, Mr. Mawut contends that, as this is a youthful offender's first penitentiary sentence, the trial judge failed to impose a sentence that is as short as necessary. The trial judge's failure to identify this principle, he argues, resulted in a sentence that is harsh and excessive and failed to recognize Mr. Mawut's youth, his past history of being a refugee, his abuse at the hands of family members, and his prospects for rehabilitation. The second error the trial judge is said to have committed is in granting enhanced credit for pre-sentence custody at only an approximately 1.06:1 basis.

[3] Regarding the second ground of appeal, the trial judge did not have the benefit of the Supreme Court of Canada's decision in R. v. Summers, 2014 SCC 26, 308 C.C.C. (3d) 471 (S.C.C.) when he reached this conclusion on pre-sentence custody credit. On appeal the Crown appropriately concedes that Mr. Mawut's sentence should be further reduced by 7½ months to account for enhanced pre-sentence custody. Accordingly, this ground of appeal is allowed.

[4] As to the first ground of appeal, Mr. Mawut points out that he was 19 years old at the time of the offences and 21 at the time of sentencing. His longest previous adult sentence was 54 days. He submits that in these circumstances the trial judge erred by failing to give appropriate effect to the jump principle. Relying on R. v. Borde, [2003] O.J. No. 354 (Ont. C.A.), at para. 36, he argues that as a youthful offender his first penitentiary sentence should be as short as possible. He says that a jump to 9½ years is excessive, and would crush his prospects for rehabilitation.

[5] We disagree. The trial judge properly considered Mr. Mawut's youth as well as his painful and traumatic background in detail and properly concluded they were mitigating factors. Based on the record, he also appropriately concluded that the appellant's prospects for rehabilitation are grim. Finally, we note that the jump principle he relies on may have little application where, as here, the severity of Mr. Mawut's offences shows a dramatic increase in violence and seriousness: Borde, at para. 39.

[6] The jump principle described by this court in Borde, and specifically para. 36, was brought to the attention of the trial judge by Mr. Mawut's trial counsel. Moreover, when the trial judge's reasons are considered as a whole it is clear that he was aware of the appropriate principles to consider and apply to this offender and the offences for which he was being sentenced. It was clear that a substantial penitentiary sentence was required. The minimum sentence on the robbery with a firearm was 5 years. The range suggested by Crown and defence counsel was between 6 and 10 years.

[7] The appellant committed a planned and gratuitously vicious armed robbery of two people in a Shoppers Drug Mart. There was no provocation or resistance to him, yet he pistol whipped both the cashier and a patron. The cashier suffered serious permanent physical injuries as well as psychological harm; the patron was pistol whipped in front of his wife and child, traumatizing them all. At the time of the offences, Mr. Mawut was subject to three court orders prohibiting him from possessing any weapons and had only been released from jail 14 days previously.

[8] Mr. Mawut's criminal conduct was a serious escalation in violence and it required a much more severe sentence than had been imposed upon the appellant previously. That sentence imposed was justified for purposes of general deterrence and denunciation as well as specific deterrence. Despite his youth, Mr. Mawut revealed himself as a dangerous person and a lengthy sentence was appropriate.

[9] Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. Other than the conceded error in connection with pre-sentence custody, Mr. Mawut has failed to establish that the sentencing judge in this case made any other error in law or in principle or that the sentence is demonstrably unfit.

[10] Leave to appeal is granted and the appeal is allowed in part. The overall sentence of 9½ years should be reduced by a further 7½ months for a total, net sentence of 7 years, 4½ months.

"H.S. LaForme J.A." "S.E. Pepall J.A." "G. Pardu J.A."