Court of Appeal for Ontario
Date: 2018-12-11 Docket: C65369
Judges: Hourigan, Pardu and Harvison Young JJ.A.
Between
Her Majesty the Queen Respondent
and
Gaddiel Ledinek Appellant
Counsel
Eva Tache-Green, for the appellant
Caitlin Sharawy, for the respondent
Heard: December 5, 2018
On appeal from the sentence imposed by Justice Michael Penny of the Superior Court of Justice on February 23, 2018.
Reasons for Decision
[1] The appellant was sentenced to 45 months for possession of a loaded prohibited firearm, and 12 months consecutive for breach of the order prohibiting him from possession of a firearm, before credit for presentence custody. The appellant submits that the sentencing judge erred by disregarding the principles of totality and parity, engaged in double counting, ignored relevant mitigating factors and misapprehended important evidence. He submits that the sentence imposed was unfit and must be varied on appeal by reducing the sentence by six months.
[2] We do not agree.
Facts
[3] In May 2016, the appellant was in possession of a loaded, semi-automatic handgun in the backseat of a vehicle travelling north on highway 400. There were four other people in the car.
[4] He had previous convictions for similar offences, and was subject to a prohibition order made in September 2012 barring him from possession of any firearm or ammunition. In September 2012 he was convicted of the following offences:
- Commission of an offence for a criminal organization
- Possession of a Schedule I substance for the purpose of trafficking
- Two counts of possession of a firearm
- Aggravated assault
- Robbery (3 charges)
- Possession of a firearm contrary to a prohibition order
- Failure to comply with an undertaking (3 charges)
[5] The appellant was 20 years old at the time of the offences that are the subject of this sentence appeal. He pleaded guilty in Superior Court on the eve of the trial.
Sentencing Submissions
[6] The Crown took the position that an appropriate sentence would be four years for possession followed by one year consecutive for breach of the firearm prohibition. The defence submitted that three years for possession followed by six months for the breach of the prohibition order would be appropriate.
Analysis
Consecutive Sentences and Breach of Prohibition Order
[7] The appellant alleges that the trial judge erred by treating the breach of the prohibition order as an aggravating factor on the sentence for possession of the firearm and by imposing a consecutive sentence for the breach of the prohibition order. We do not agree. The appellant's breach of the prohibition order was inescapably part of the narrative of events leading to the appellant's convictions. The sentencing judge expressly cautioned himself that "where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh."
[8] The global sentence imposed was well within the range of sentences imposed for similar offenders, guilty of similar offences.
Certificates Earned During Presentence Custody
[9] The appellant also submits that the trial judge erred by failing to consider two certificates he had earned while in presentence custody. The first was for completing a ten-hour anti-criminal thinking workshop, and the second for a ten-hour "cognitive skills workshop". The trial judge did not mention these in his sentencing decision and was not obliged to. No submissions were made about the significance of the certificates. The sentencing judge did consider the appellant's prospects for rehabilitation, and was aware of the certificates. These would have not had any impact on the ultimate sentence imposed, given the limited information about them.
Enhanced Credit for Harsh Presentence Custody Conditions
[10] Finally the appellant submits that the trial judge erred by failing to give him enhanced credit to reflect the conditions of pretrial custody. The sentencing judge credited the appellant with 31 months and 20 days pretrial custody, amounting to 1.5 times the actual pretrial custody of 21 months and three days. The defence proposed a further three-month credit arguing that the conditions of presentence custody were unusually harsh.
[11] The sentencing judge rejected this request at paras. 30-33 of his reasons:
The lockdown records from both Maplehurst and TEDC are not remotely comparable to the lockdown records before the court in cases relied on by the defence such as R. v. Nsiah, 2017 ONSC 769, R. v. Holman, 2017 ONCJ 727 and R. v. Bedward, 2016 ONSC 939. Full lockdowns, where services are suspended, were relatively few during the period of Mr. Ledinek's pre-sentence custody at both institutions. At TEDC, services are, in any event, provided during many lockdowns, albeit on a more restricted protocol.
Mr. Ledinek also complains of inadequate medical treatment during his pre-sentence custody. The records, however, do not seem to bear that out. There is no documentary evidence of serious delays in receiving care but there is evidence that, on several occasions, Mr. Ledinek declined to attend appointments that had been scheduled for him. Unlike the case of R. v. Ohamu, 2017 ONCJ 10, there is no evidence of a pre-existing, serious mental health issue. The health records indicate Mr. Ledinek's issues are associated primarily with the fact of his incarceration.
While the triple bunking at TEDC is a concern, it is mitigated somewhat by evidence that Mr. Ledinek declined to move to a double bunk situation. While he no doubt had his reasons, the evidence is there was an option offered.
I am unable to conclude that Mr. Ledinek's circumstances rise to the level of harshness required to warrant additional credit for pre-sentence custody.
[12] In R. v. Duncan, 2016 ONCA 754, at para. 6, this court held that "particularly harsh presentence incarceration conditions can provide mitigation apart from and beyond the 1.5 credit referred to in s. 719(3.1)" and that sentencing courts should consider "both the conditions of the presentence incarceration and the impact of those conditions on the accused."
[13] A court's decision as to the credit, if any, to be granted to account for harsh presentence custodial conditions is a discretionary one to which deference is owed. Here the sentencing judge considered both the conditions and their impact on the appellant. We are not persuaded that there is any basis to intervene.
Conclusion
[14] The sentence imposed was fit.
[15] Accordingly, the appeal is dismissed.
"C.W. Hourigan J.A."
"G. Pardu J.A."
"Harvison Young J.A."
