Court of Appeal for Ontario

Date: 2017-07-07 Docket: C61165

Judges: Laskin, Simmons and Pardu JJ.A.

Between

Her Majesty the Queen Respondent

and

Sunny Ramta Appellant

Counsel

Karen Heath and Dirk Derstine, for the appellant Gavin MacDonald, for the respondent

Heard: June 12, 2017

Appeal Information

On appeal from the conviction entered on February 11, 2013 and the sentence imposed on May 28, 2015 by Justice Irving André of the Superior Court of Justice, sitting without a jury, with reasons for sentence reported at 2015 ONSC 2716.

Reasons for Decision

Conviction Appeal

[1] The appellant challenges his conviction for attempted robbery on two grounds. Firstly, he submits that the trial judge did not adequately take into account the frailty of the evidence of the two main Crown witnesses: Sagher, an accomplice to the robbery; and Dominici-Perez, a drug trafficker and the intended victim. Secondly, he submits that the trial judge subjected the appellant's evidence to more rigorous scrutiny than that accorded to Crown witnesses.

[2] The victim of the attempted robbery and the appellant shared an interest in marijuana and video games. They knew each other from attending school together. According to the appellant, the victim was the appellant's primary supplier of marijuana. The victim denied any involvement in selling drugs.

[3] The appellant claimed that, on the date of the attempted robbery, he had arranged to purchase marijuana from the victim. The appellant arrived at the victim's home in a car with three others. Sagher was the driver of the vehicle. Two of the others went into the house.

[4] The victim testified that these two others, strangers to him, attempted to rob him. The victim was at home with a friend. They both barricaded themselves in the victim's bedroom, and escaped through a window. The friend's evidence together with damage to the bedroom door and the window screen supported the victim's version of the robbers' efforts to break into the bedroom and the flight out the window. The victim called 911. The victim then gave chase to the robbers and came upon the car with Sagher and the appellant in it. He recognized the appellant, but did not identify him to police. At the same time as the victim was giving a statement to police, the appellant was sending him threatening text messages. There were some 15 text messages between them in a 51 minute span immediately after the robbery.

[5] The theory of the Crown was that the appellant planned the robbery and directed the others to the victim's address. The appellant and the victim had exchanged text messages earlier in the day.

[6] Sagher was arrested immediately following the attempted robbery; he crashed his car while trying to flee. He pleaded guilty and was awaiting a sentencing decision when he testified against the appellant. He initially testified that the plan was to buy marijuana and that he did not know who planned the visit to the victim's home. He said he stayed in the car alone while the other three went into the victim's home to buy marijuana.

[7] The Crown successfully applied to cross-examine him on his earlier statements to the contrary.

[8] He had given a statement to police on the night of the robbery telling them the appellant planned the robbery. On his guilty plea, he had also stated that the appellant planned the robbery and signed a statement to that effect. At trial and following cross-examination by the Crown, he acknowledged that these were both truthful statements but added that only the other two went into the house and that the appellant stayed in the car.

[9] In cross-examination by defence counsel, he said he did not realize that the appellant had planned a robbery until the victim approached his car, chasing the other two. He said nothing was said in the car about any plan to commit the robbery.

[10] In re-examination by the Crown, Sagher again agreed that the appellant knew the victim and had planned the robbery and reconfirmed the truthfulness of his prior statements.

[11] The trial judge's reasons demonstrate that he was well aware of the victim's initial failure to identify the appellant to the police and the inconsistencies in Sagher's evidence. The trial judge accepted the victim's explanation that he was overwhelmed after the incident and concerned about the threatening messages. The trial judge also concluded that Sagher tried his best to avoid implicating the appellant in the robbery. He accepted Sagher's evidence that the appellant had orchestrated the plan to rob the victim and provided directions to the victim's home but remained in the car so that the victim would not recognize him.

[12] This court noted in R. v. Snyder, 2011 ONCA 445, 278 O.A.C. 233, at para. 24 that there is no need for trial judges to recite a self-instruction, similar to a jury instruction, about the need for caution when assessing the evidence of "Vetrovec" witnesses. Assuming special scrutiny of the victim's evidence was warranted, the trial judge pointed to several aspects of the evidence that supported his version of the events and also explained why he accepted the victim's explanation for the victim's initial failure to identify the appellant to the police.

[13] As for Sagher's evidence, his position as an accomplice to the crime was front and centre at the trial. Moreover, the trial judge heard and decided two applications by the Crown to cross-examine him. The inconsistencies in his evidence were obvious. Some aspects of the Crown's evidence supported elements of his testimony (for example, the evidence of the victim, supported by the evidence of his friend, that the victim did not know either of the two men who entered the victim's residence). Further, sentencing submissions had been made when he testified. Finally, viewed in the context of the whole of the evidence, the trial judge's findings that Sagher attempted to avoid implicating the appellant but was telling the truth when he adopted his original statement accord with common sense.

[14] By the end of the trial, the substantial issue was whether the appellant was a party to the robbery. In oral argument the appellant did not focus on the position taken in his factum that the trial judge erred in his treatment of Dominici-Perez's evidence. Given the physical evidence, there was no doubt there had been a robbery. Dominici-Perez had no personal knowledge of advance steps taken by the appellant to arrange the robbery. We are not persuaded that the trial judge erred in his treatment of this evidence.

[15] The record, including the trial judge's reasons, does not support the second argument that the trial judge applied more rigorous scrutiny to the appellant's evidence.

[16] Read fairly in the context of the whole of his reasons, the rhetorical questions posed by the trial judge did not reverse the onus of proof. The trial judge was merely explaining why common sense dictated certain findings. There is nothing here justifying a departure from the deference owed to the trial judge's findings of credibility. His conclusions accord with common sense and the objective circumstances surrounding the event.

Sentencing Appeal

[17] The appellant also appeals from his 20-month sentence for attempted robbery. He submits that the trial judge erred by refusing, after deciding that a 20-month sentence was appropriate, to give him any credit for four years and eight months of house arrest while awaiting trial and sentence.

[18] The trial judge refused to allow any credit for this time for two reasons. Firstly, he indicated at para. 31 of his reasons for sentence that the appellant, through his counsel, "has repeatedly adjourned the date of his sentencing along with his co-accused. He has therefore not shown any urgency in having a sentencing hearing as soon as possible." Secondly, he relied on a failure on the appellant's part to take any steps to vary the conditions of his release.

[19] The fresh evidence that we admit on this appeal shows that the appellant's trial counsel was suspended from practice for about a year after trial but before sentencing. This caused some delay; trial counsel failed to appear on five occasions. It would be unfair to visit the consequences of counsel's suspension upon the appellant. As the Crown indicates, the actions of a co-accused also contributed to the need to adjourn the sentencing proceedings. The fresh evidence also indicates that the appellant did in fact apply to vary his bail terms to allow him to attend school.

[20] Had the trial judge considered these circumstances, we are satisfied they would have had an impact on his decision as to the credit to be accorded for pre-sentence house arrest.

[21] Apart from the issue of credit for the conditions attached to the terms of the appellant's interim release, the 20-month sentence imposed was fit. We do, however, have the benefit of fresh evidence about the appellant's extraordinary rehabilitative steps since the sentence was imposed. He has completed a two-year college program in heating, refrigeration and air conditioning. He was on the dean's honour list and has tutored other students. He secured full-time employment in this field between his first and second years of study. He will shortly graduate with a college diploma in construction and engineering and will be a licensed gas technician. He hopes to pursue a five-year apprenticeship leading to a refrigeration licence and ultimately run his own business.

[22] The appellant was 21 years old at the time of the offence but is now 26 years old. His rehabilitative steps taken on his own initiative are evidence of growing maturity.

[23] For the reasons expressed by Sharpe J.A. in R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177, we are satisfied that this court should recognize the extraordinary steps the appellant has taken towards his own rehabilitation. To return the appellant to jail now would disrupt that progress. The public interest is better served by allowing the appellant to continue his efforts to become a productive member of the community rather than by emphasizing denunciation and general deterrence. Accordingly, rather than determining the appropriate credit for the four years and eight months of house arrest, we would vary the sentence imposed to one of time served.

John Laskin J.A. Janet Simmons J.A. G. Pardu J.A.