Court and Parties
COURT OF APPEAL FOR ONTARIO
DATE: 20231018 DOCKET: C70911
Lauwers, Roberts and Nordheimer JJ.A.
BETWEEN
His Majesty the King Respondent
and
Steven Browne Appellant
Counsel: Delmar Doucette, for the appellant Andreea Baiasu, for the respondent
Heard: October 17, 2023
On appeal from the sentence imposed by Justice Jane E. Kelly of the Superior Court of Justice on December 16, 2021, with reasons at 2021 ONSC 8098.
Reasons for Decision
[1] Mr. Browne seeks leave to appeal the total sentence of 14 years (prior to any credits) imposed on him following on his guilty pleas to the offences of attempted murder with a firearm and discharging a firearm with intent to wound. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.
[2] The underlying offences arose out of drive-by shooting that occurred in a parking lot on Finch Avenue West. For reasons that are not explained, the appellant and an identified person drove into the parking lot and opened fire from their vehicle on two males who were in another vehicle that was parked in the lot. A total of 19 shots were fired. Remarkably, none of those shots hit either of the males.
[3] However, when the appellant drove away, the males in the other vehicle began to shoot at his vehicle. The appellant lost control of his vehicle and crashed. He left the vehicle and was chased by one of the males he had shot at. That male caught the appellant and beat him until the appellant was barely conscious. The appellant suffered very serious injuries from this beating which required him to be placed in a medically induced coma for seven days.
[4] The appellant has a criminal record that includes convictions for failure to comply, robbery, carrying a concealed weapon, assault and manslaughter.
[5] The sentencing judge noted in her reasons that the positions taken by counsel for the Crown (15 years) and counsel for the appellant (10 years) were within the appropriate range. She then reviewed the aggravating and mitigating factors and also reviewed, in detail, the appellant’s troubled background. Toward the end of her reasons, the sentencing judge said that she was of the view “that a sentence of 15 to 16 years would be appropriate”. The appellant latches onto this one statement as evidencing that the sentencing judge exceeded the range that the Crown had suggested and which she had previously advised the appellant that she would not do.
[6] We do not accept this criticism. In our view this submission involves a parsing of the sentencing judge’s reasons which is unfair. It also fails to read the sentencing judge’s reasons as a whole. It further fails to reflect the salient fact that the sentencing judge did not exceed the Crown’s position in the sentence that she ultimately imposed.
[7] The appellant then complains that the sentencing judge failed to give adequate credit under the principles established in R. v. Suter, 2018 SCC 34. In fact, the sentencing judge directly addressed the issue of collateral consequences in her reasons. In doing so, however, she noted that the principles established by Suter cannot be used to reduce a sentence to the point where it becomes disproportionate to the gravity of the offence.
[8] The appellant’s next complaint is that the sentencing judge failed to give adequate credit or consideration to the Morris factors. [1] Once again, the sentencing judge made express reference to the Morris factors in her sentencing reasons. As is the case with the Suter factors, the Morris factors also cannot justify the imposition of a sentence that is disproportionate to the seriousness of the offence. As this court said in Morris, at para. 76, “Evidence that an offender's choices were limited or influenced by his disadvantaged circumstances, however, speaks to the offender's moral responsibility for his acts and not to the seriousness of the crimes.”
[9] We would add, on this point, that we are satisfied that the sentencing judge’s adoption of a 15-year sentence adequately accounted for the Suter and Morris factors that she expressly identified. Indeed, we note that Crown counsel had initially indicated that an 18-year sentence would have been appropriate.
[10] Finally, the appellant says that the sentencing judge failed to give adequate credit under the principles in R. v. Duncan, 2016 ONCA 754. The appellant says that the one-year credit that the sentencing judge gave for the conditions under which the appellant served his pre-sentence was inadequate given the history of lockdowns; COVID issues; and lack of proper medical treatment. The appellant submits that a credit of two years ought to have been given.
[11] We do not dispute that the sentencing judge might have given additional credit for the particular circumstances of pre-sentence custody that the appellant endured. However, the sentencing judge concluded that a credit of one year was sufficient. Her determination is entitled to deference from this court. There is nothing manifestly unreasonable in her decision on this issue and therefore there is no basis for this court to interfere.
[12] In the end result, the sentencing judge gave thorough and careful reasons for the sentence that she imposed. She reviewed the appellant’s troubled history, and she reviewed the aggravating and mitigating factors. It remains the fact that these were very serious offences. The sentence imposed by the sentencing judge reflects that very important fact. There is no error in principle nor is the sentence manifestly unfit.
[13] Finally, the appellant seeks leave to file fresh evidence consisting of the Post Secondary School Diploma he has now received along with related material. While we would admit the fresh evidence, it does not change the result.
[14] It is for these reasons that, while we granted leave to appeal the sentences, we dismissed the appeal. The existing sealing order over certain exhibits is maintained.
“P. Lauwers J.A.”
“L.B. Roberts J.A.”
“I.V.B. Nordheimer J.A.”