Court File and Parties
COURT OF APPEAL FOR ONTARIO DATE: 20240502 DOCKET: COA-22-CR-0227
Benotto, Coroza and Dawe JJ.A.
BETWEEN
His Majesty the King Respondent
and
Mikail Moolla Appellant
Mikail Moolla, acting in person Frank Au, for the respondent
Heard: April 11, 2024
On appeal from the conviction entered on November 26, 2021 and the sentence imposed on July 29, 2022 by Justice Sandra Martins of the Ontario Court of Justice.
Reasons for Decision
[1] Mr. Moolla sought to have this hearing adjourned because he wanted additional transcripts. In December 2023, assisted by senior duty counsel, all the transcripts that were requested were ordered to be provided. They were. The matter was set down for an appeal hearing on a peremptory basis. We therefore denied the adjournment and proceeded with the appeal.
[2] Mr. Moolla was convicted of 4 counts relating to the sexual luring of a child. He was sentenced to 3.5 years. He appeals his conviction arguing that his Asperger’s Syndrome affected how he gave his evidence. The trial judge was aware of his condition, took it into account and indicated that, as a result, very close attention was paid to his testimony. There is no fresh evidence application, and we have no evidence of anything else that he or anyone else could have added to the testimony. The conviction appeal is therefore dismissed.
[3] Regarding the sentence appeal, in our view the sentence is fit, and no error has been raised. Indeed, we have been given no reason to interfere with the length of sentence.
[4] The Crown raised an issue about the application of the Kienapple conditional stay. At trial, the parties had agreed that count 3 be stayed. Despite the clear intention of the parties, the trial judge stayed count 4 instead. Pursuant to ss. 686(1)(b)(i) and 686(3) of the Criminal Code, we therefore quash the conviction on count 3 and enter a conditional stay on that count, lift the conditional stay on count 4 and enter a conviction on that count, and confirm the sentence passed by the trial court as the sentence on count 4.
“M.L. Benotto J.A.”
“S. Coroza J.A.”
“J. Dawe J.A.”