Court of Appeal for Ontario

Date: 2025-07-02
Docket: COA-23-CR-1020
Coram: S. Gomery, J. Dawe, L. Madsen JJ.A.

Between

His Majesty the King
Respondent

and

Justin Aghayere Omoragbon
Appellant

Justin Aghayere Omoragbon, acting in person
Eric Neubauer, appearing as duty counsel
Kevin Pitt, for the respondent

Heard: June 5, 2025

On appeal from the sentence imposed on July 27, 2023 by Justice Timothy E. Breen of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant seeks leave to appeal his sentence of 26 months following his conviction for breaking and entering a dwelling-house. He argues that the sentencing judge erred in not accepting the sentence of 18 months proposed by the Crown and subsequently adopted by the defence. After hearing the appellant’s submissions, we dismissed the appeal, with reasons to follow. These are our reasons.

[2] This was not a case where the Crown and the defence agreed to make a joint submission on sentence in exchange for a guilty plea. The sentencing hearing was contested. During the Crown’s submissions, the sentencing judge gave notice that he was considering a higher sentence than the 18 months sought by the Crown. Following the completion of the Crown’s submissions, and a break, trial counsel for the first time advised that the appellant agreed with the sentence sought by the Crown. In the circumstances, there was no violation of the principles set out in R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, nor in R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204.

[3] The appellant contends that the sentencing judge ignored two mitigating factors: a guilty plea that relieved the victims of the break and enter from having to testify, and the appellant’s mental health diagnosis, as communicated verbally to trial counsel by the appellant’s parole officer. We disagree. The sentencing judge acknowledged that the appellant pled guilty but found that this had little weight because of its timing and the strength of the case against him. He was entitled not to give weight to trial counsel’s submissions about the appellant’s mental health, given the lack of any evidentiary foundation for them.

[4] The appellant further asserts that the sentencing judge ignored an injury he sustained in pre-sentencing custody in determining the appropriate sentence. The sentencing judge did consider this issue, but found that he could not conclude, on the record, that correctional staff used excessive force.

[5] Finally, the appellant contends that the sentencing judge was biased, mistaken, and ignored the jump principle. The appellant’s most recent sentence was for a period of seven years. There was no error in principle nor was the sentence demonstrably unfit. There was no evidence of bias or an appearance of bias on the part of the sentencing judge. He explained why he concluded that a penitentiary sentence was required to achieve the primary sentencing goals of deterrence and denunciation in the circumstances of this case, having regard in particular to the seriousness of the offence and the appellant’s lengthy criminal record. We do not see any error that would justify intervention by this court.

[6] The appellant is accordingly granted leave to appeal his sentence but the appeal is dismissed.

“S. Gomery J.A.”
“J. Dawe J.A.”
“L. Madsen J.A.”