Court of Appeal for Ontario

CITATION: R. v. Oliveros-Ortega, 2020 ONCA 716

DATE: 20201109

DOCKET: C64279

Huscroft, Miller and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jorge Luis Oliveros-Ortega

Appellant

Anthony Marchetti, for the appellant

Adam Wheeler, for the respondent

Heard and released orally: November 5, 2020 by video conference

On appeal from the conviction entered on October 20, 2014 and the sentence imposed on May 4, 2015 by Justice Gary T. Trotter of the Superior Court of Justice.

REASONS FOR DECISION

[1] Mr. Oliveros-Ortega appeals both his conviction and his sentence for theft under.

[2] The appellant went into a bank and passed a note to a teller saying that this was a robbery and demanding money. The teller gave the appellant $600. When the appellant asked for more, the teller refused. The appellant left the bank with the money.

[3] While originally charged with robbery, at trial before a jury the appellant obtained a directed verdict dismissing the robbery charge but leaving the included offence of theft. The appellant subsequently pled guilty to theft under.

[4] The appellant now asserts that there was an insufficient factual basis to sustain a conviction for theft. We disagree. The appellant took property without colour of right and with the intention to deprive the owner of that property. The elements of the offence of theft are made out. We also note that the appellant did not seek to set aside his guilty plea in which, among other things, he would have admitted that the essential elements of the offence were made out.

[5] With respect to the sentence appeal, the appellant received a suspended sentence after being credited with 12 months for pre-sentence custody. The appellant contends that the trial judge erred in not reducing his sentence to six months because of the immigration consequences in accordance with the principles set out in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739.

[6] The trial judge was alive to the immigration consequences for the appellant and made extensive reference to them in his reasons for sentence. But ultimately, he concluded that a sentence of 12 months was a fit sentence. As stated in Pham at para. 14, "a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender." On that point, we note that the appellant has a criminal record, which includes a prior conviction for theft under.

[7] The trial judge's sentencing decision is entitled to deference. Absent a reviewable error that affects the sentence, or a showing that the sentence is demonstrably unfit, an appellate court is not to interfere with it: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Neither of those avenues for intervention are available here.

[8] The appeal as to conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.

"Grant Huscroft J.A." "B.W. Miller J.A." "I.V.B. Nordheimer J.A."