Court and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230927 DOCKET: COA-23-CR-0400

Hourigan, Thorburn and Copeland JJ.A.

BETWEEN

His Majesty the King Appellant

and

Kenneth Gobin Respondent

Counsel: Elise Nakelsky, for the appellant Amy J. Ohler, for the respondent

Heard and released orally: September 26, 2023

On appeal from the sentence imposed on March 14, 2023 by Justice Malcolm McLeod of the Ontario Court of Justice.

Reasons for Decision

[1] The respondent pled guilty to and was convicted of assault causing bodily harm and uttering a threat to cause bodily harm. He was sentenced to an effective sentence of nine months imprisonment, followed by three years probation. The Crown seeks leave to appeal, and if leave is granted, appeals from the sentence imposed.

[2] The Crown argues that the sentencing judge erred in principle in failing to properly consider denunciation and deterrence. The Crown further argues that the sentence is unfit.

[3] We are not persuaded that the sentencing judge erred in principle, failed to consider a relevant factor, or erroneously considered an aggravating or mitigating factor: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11-12, 39-40 and 44-51.

[4] The sentencing judge discussed at length the need for a sentence of imprisonment in this case in order to express the community’s denunciation of the serious offence of violence and for purposes of deterrence. The sentencing judge recognized the seriousness of the offence and its consequences to the victim. The sentencing judge considered the respondent’s criminal record – including for offences of violence – as a factor in assessing the appropriate sentence. However, the sentencing judge also found it appropriate in the circumstances to give significant weight to the respondent’s plea of guilt as an expression of remorse and recognition of the harm caused by his actions. The reasons consider in great detail authorities of this court and the Superior Court regarding the range of sentence and explain why the sentencing judge found a nine-month sentence to be appropriate. It is not this court’s role to reweigh the various sentencing factors at play in this case.

[5] Nor are we persuaded that the sentence is unfit. The Supreme Court explained in Lacasse that a “very high threshold … applies to appellate courts when determining whether they should intervene after reviewing the fitness of sentence.” A sentence will be demonstrably unfit if it constitutes “an unreasonable departure” from the principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Lacasse, at paras. 11-12, 39-40 and 44-53.

[6] Although the sentence imposed was at the lower end for the circumstances of this offence, we are not satisfied that it was demonstrably unfit.

[7] Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“C.W. Hourigan J.A.”

“Thorburn J.A.”

“J. Copeland J.A.”