Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20200601 DOCKET: C67562

Doherty, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Aghayere Justin Omoragbon Appellant

Counsel: Christopher Rudnicki, for the appellant Tanya Kranjc, for the respondent

Heard: In-writing

On appeal from the sentence imposed on April 2, 2019 by Justice Faye E. McWatt of the Superior Court of Justice.

Reasons for Decision

[1] After a trial before a judge of the Superior Court of Justice sitting without a jury, the appellant was convicted of 11 offences. He received a global sentence of seven years which the trial judge reduced to a net sentence of four years on account of the length and nature of pre-sentence custody.

[2] The appellant applies for leave to appeal the sentences imposed at trial. He asks that we reduce the global sentence to one of five years so that he will be eligible to apply for parole immediately and entitled to statutory release in early August of this year.

[3] In our view, the appeal fails.

The Background Facts

[4] We begin with a brief background of the offences, the offender, the positions of the parties at trial and the reasons of the trial judge for the sentences she imposed.

The Circumstances of the Offences

[5] Early one morning in June, police officers observed a white Mercedes motor vehicle that other officers had attempted to stop a few minutes earlier. The officers pursued the vehicle which travelled at speeds of 100 km/h in areas in which the posted speed limits were 50 or 60 km/h.

[6] After briefly losing sight of the pursued vehicle, the officers saw it again and took up the chase. The Mercedes failed to negotiate a turn and crashed. The appellant, who was the only occupant, got out of the driver's seat and fled on foot. The officers ran after him, but the appellant outdistanced them. As he ran, the appellant dropped his wallet. The police recovered it. Inside was $940 in cash.

[7] The officers called for assistance. Police searched the area. A police dog found the appellant hiding under a cube van. Officers arrested the appellant and searched him incident to arrest. They found $670 in cash in the appellant's pockets.

[8] The police dog also indicated a firearm under a vehicle along the route the appellant had followed in his attempt to escape. The gun was a .38 calibre revolver, a restricted firearm. It was loaded.

[9] Police searched the appellant’s Mercedes. There, they found varying amounts of five different drugs: cocaine and crack cocaine; MDEA; a fentanyl and heroin mix; and Xanax tablets, together with torn plastic bags typically used for drug sales at street level. The value of the drugs found was between $2,840 and $5,440 depending on how they were sold.

The Circumstances of the Appellant

[10] The appellant was 21 years old when he committed the offences and 23 at the time of sentencing. He had a secondary school education and had worked in construction. The offences of which he was convicted included five firearms offences, four drug offences (possession for the purpose of trafficking), and single convictions for flight from police and possession of the proceeds of crime.

[11] The appellant is a recidivist with several convictions as a youth and an adult. He committed his first offence as the youth of 13. Among his prior convictions are several property offences, five convictions for failure to comply with release forms or sentencing dispositions and convictions for carrying a concealed weapon and flight from police. The lengthiest custodial sentence he had served was 10.5 months.

[12] When he committed the offences with which we are concerned, the appellant was bound by a weapons prohibition and two probation orders. He was also serving an intermittent sentence imposed on convictions of failure to comply and flight from police.

The Positions of the Parties at Trial

[13] At trial, the Crown sought a penitentiary sentence of 7-8 years, less credit for pretrial custody at the rate of 1.5:1, but without any enhancement for the conditions of that custody, in particular, lockdowns.

[14] Trial counsel for the appellant invited the trial judge to impose a sentence of 4-4.5 years, less credit for pretrial custody, enhanced beyond 1.5:1 because of the conditions of that custody.

The Reasons of the Trial Judge

[15] The trial judge considered the appellant was a commercial drug trafficker who sold drugs from his vehicle – a mobile pharmacy – and had a firearm to carry on that business. She considered the inclusion of the deadly fentanyl among his range of products as an aggravating factor.

[16] In the trial judge's view, the appellant's youth, usually a mitigating factor, was counteracted by his lengthy youth record, starting at age 13, and the number and nature of his adult convictions. She considered the starting point for the drug offences as 3.5 years and the firearms offences as a serious aggravating factor.

The Grounds of Appeal

[17] The appellant submits that the trial judge erred:

i. in holding that the appellant's youth is not a mitigating factor in determining a fit sentence;

ii. in failing to account for and apply the totality principle; and

iii. in blending principles concerning credit for the fact and nature of pre-sentence custody that should have been kept discrete.

[18] The appellant also seeks leave to introduce fresh evidence about current custodial conditions if we find an error in the sentencing judge's decision that had an impact on the sentence imposed, thus engaging our authority to sentence afresh.

Discussion

[19] In our view, this appeal fails. Whether the grounds advanced are considered individually or cumulatively, we are not persuaded that the sentence imposed is demonstrably unfit or reflects an error in principle that had an impact on the sentence.

[20] Taking first the alleged error in failing to consider the appellant's youth as a mitigating factor on sentence.

[21] The appellant’s relative youth was the only mitigating factor put forward on his behalf on sentencing. The trial judge adverted to the submission but gave it less weight than counsel argued was its due. We see no error in the trial judge's analysis.

[22] Yet again, this is a case involving that toxic combination of drugs and a handgun. Cocaine and crack cocaine. And fentanyl. A loaded .38 calibre handgun. In a motor vehicle, aptly characterized as a mobile pharmacy. Each a pernicious and persisting threat to the safety, welfare and indeed the lives of members of our community: R. v. Wong, 2012 ONCA 767, at para. 11.

[23] These offences command exemplary sentences. The predominant sentencing objectives are denunciation and deterrence. Substantial jail terms are required even for youthful first offenders: R. v. Mansingh, 2017 ONCA 68, at para. 24.

[24] We do not gainsay the importance of the sentencing objective of rehabilitation in respect of youthful offenders. But its influence on the ultimate determination of a fit sentence is a variable, not a constant. In the absence of any realistic rehabilitative prospects, its impact on the nature and length of a sentence may be attenuated.

[25] In this case, the appellant’s convictions, both as a young person and as an adult, militate against any realistic prospect of rehabilitation. He has proceeded with depressing regularity from one series of convictions to another. He appears to have little or no regard for court orders and has not benefited from non-custodial supervision. His current offences are of escalating seriousness, including firearms, drugs and flight from police. They were committed when he was bound by probation orders, a firearms prohibition and serving an intermittent sentence for cognate offences.

[26] In our view, the trial judge did not err in assigning diminished weight to rehabilitation as a sentencing objective in this case.

[27] Nor are we persuaded that the trial judge erred by failing to consider the principle of totality in determining the sentence she imposed.

[28] The fundamental principle of sentencing is proportionality. Every sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. Totality is an expression of that fundamental principle. A global or cumulative sentence must adhere to the fundamental principle of proportionality and not exceed the overall culpability of the offender: R. v. J.S., 2018 ONCA 675, at paras. 64-5.

[29] We do not consider the sentences imposed to be demonstrably unfit. These were very serious offences, each deserving of significant penitentiary terms. The imposition of consecutive sentences for breach of the weapons prohibition and possession of cocaine and crack cocaine for the purpose of trafficking represented punishment for different delicts and were properly made consecutive to the sentences for the various firearms offences.

[30] The appellant’s final complaint is that the trial judge failed to keep conceptually discrete the statutory credit for presentence custody, on the one hand, and the enhanced credit awarded for the conditions of confinement – lockdown days – on the other.

[31] The appellant received credit of 1.5:1 for each of 643 days of presentence custody. The trial judge added another .36 years credit for 113 days of lockdown.

[32] Enhanced credit for lockdown days is neither an entitlement nor routinely granted upon the filing of institutional records. In the absence of evidence of any adverse effect of the lockdown conditions on the appellant, enhanced credit is not warranted: R. v. Duncan, 2016 ONCA 754, at paras. 6-7.

Disposition

[33] For these reasons, leave to appeal sentence is granted, but the appeal from sentence is dismissed. Since we have found no basis upon which to interfere, we do not reach the motion for leave to introduce fresh evidence.

“Doherty J.A.”

“David Watt J.A.”

“B.W. Miller J.A.”