ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 88/13

DATE: 20140310

RE: Her Majesty the Queen v. Hilded Abdi

BEFORE: K.L. Campbell J.

COUNSEL:
Kim Walker, for the Crown, respondent

Adetayo G. Akinyemi, for the accused, appellant

HEARD: January 14, 2014

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Hilded Abdi, was tried by the Honourable Mr. Justice S. Merenda of the Ontario Court of Justice, and ultimately convicted of three charges of assault, three charges of theft of property (and one accompanying charge of possession of stolen property) having a value less than $5,000.

[2] These convictions all flowed from two successive robberies,[^1] which were committed in Toronto on the night of August 26, 2012, by a group of five young men. Essentially, as they drove around together, the group decided to rob random pedestrians of their property. First, four members of the group exited the vehicle and eventually surrounded the first victim, Alexander Rathgerber. They rummaged through his pockets and stole his wallet, his cell phone, and his hat. They then quickly escaped in the vehicle driven by the fifth member of this marauding group. Shortly thereafter, they decided to commit a similar robbery. This time, their victims were Amine Mounir and Julen Zambok. Two members of the group approached these two pedestrians and stole their cell phones. Again, they escaped in a waiting vehicle. Shortly after this second robbery, this vehicle was stopped and all five young men were arrested. The property recently stolen from Mr. Rathgerber was found on the floor of the vehicle where the appellant had been seated.

[3] On the evening of August 26, 2012, the appellant was, admittedly, in the company of this group of young men at the time of these robberies. However, the appellant denied having any involvement in the commission of these offences, either as principal or party. He explained how the offences had been committed by others, while he had remained inside or by the car, shocked by the conduct of his friends.

[4] In his reasons for judgment, the trial judge rejected the testimonial denial of the appellant, and concluded that he was satisfied beyond a reasonable doubt that the appellant was, in fact, an active participant in the commission of the alleged offences.

[5] At sentencing, the appellant sought a conditional discharge and probation, expressing his remorse for his involvement in these crimes and apologizing to the victims for assaulting them and stealing their property. In the result, however, Merenda J. refused to grant the appellant a conditional discharge, concluding that such a disposition was contrary to the public interest. Ultimately, the trial judge suspended sentence and imposed a 30-month term of probation on the appellant. The trial judge also ordered the appellant to make restitution to one of the victims in the amount of $100.

[6] The appellant appeals against his conviction and sentence. The appellant contends that his conviction is unreasonable and not supported by the evidence adduced at trial. Alternatively, the appellant argues that his sentence is unfit, asserting that the trial judge erred in failing to grant him a conditional discharge.

B. The Conviction Appeal – The Reasonableness of the Guilty Verdicts

1. The Governing Standard of Appellate Review

[7] There is no dispute between the parties as to the proper standard of appellate review regarding the reasonableness of the verdicts. The test is well-settled. The task of the appellate court is to determine, on the whole of the evidence, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than simply determining whether there is any evidence in support of the verdict. It requires the appellate court to thoroughly review, analyze and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the trier of fact. The appellate court is not permitted, however, to simply retry the case, or give effect to any vague unease or any lurking or reasonable doubt it may have based on its own review of the record. See: R. v. Melo, 2013 ONSC 4338, [2013] O.J. No. 2953, at paras. 36-41, and R. v. Costache, 2013 ONSC 4447, at para. 41, and the authorities cited therein.

2. The Reasonableness of the Verdict

[8] Applying this standard of review, I am driven to the conclusion that the verdicts reached by the trial judge in the present case are not unreasonable, but rather are verdicts that enjoy the support of the evidence. In reaching this conclusion, the following aspects of the evidence, and the factual findings of the trial judge, are of particular significance:

• Planning the First Robbery: Mr. Warsame Galbete pled guilty to his involvement in the August 26, 2012 robberies, and testified as a Crown witness at the trial of this matter. He admitted that he was the driver of the vehicle that was used by the group that night. The vehicle belonged to his father. The appellant and Mr. Galbete were friends. Mr. Galbete testified that he spent the evening with the appellant and another friend. They were joined at one point by two others. Mr. Galbete testified that, as the five young men drove around together in his father’s vehicle, they discussed the potential robbery of a number of potential targets. At one point when their discussions ended, according to Mr. Galbete, he stopped the car and the four other occupants of the vehicle got out. He knew that they were intending to rob someone. They were gone about five minutes. The trial judge accepted this evidence and concluded that the appellant was in the car that night and was part of the discussions regarding the anticipated robbery.

• The First Robbery: The victim of the first robbery was a 21-year-old student, Alexander Rathgerber, who was walking home late at night. He testified that he was approached sequentially by a total of four young men and effectively surrounded by them. Mr. Rathgerber explained how all four of the men started “demanding [his] stuff” and grabbing at his pockets, and how they succeeded in stealing his BlackBerry Bold cell phone, his backpack, his wallet with his money, and his fitted hat. In his reasons for judgment, the trial judge accepted this evidence and concluded that the appellant was one of the participants in this robbery. In passing, Merenda J. noted that the appellant had a motive for stealing the BlackBerry Bold cell phone as his own cell phone was being repaired and he was temporarily using a more primitive BlackBerry model that he had borrowed.

• Returning to the Vehicle – Planning a Second Robbery: Mr. Galbete testified that, after approximately five minutes, his friends returned to the car. Mr. Galbete had been waiting for them in the vehicle. They were excited and, once they were inside, they described to him some of the items they had collectively managed to steal, including $20 and a baseball hat. They then began discussing committing a second robbery. While initially some of them, including the appellant and Mr. Galbete, just wanted to go home, ultimately they decided as a group to “do another one.”

• The Second Robbery: The victims of the second robbery were two other pedestrians, namely, 24-year-old Amine Mounir and his friend Julen Zambok. Mr. Mounir testified that they were approached by two males who asked them for the time, expressed an interest in their cell phones, and then proceeded to follow them. Subsequently, the two males approached Mr. Zambok and started to go through his pockets. They took his MP3 player, examined it, and then returned it. They then took his cell phone and called him an “idiot.” When Mr. Mounir told the two males to leave him alone, they turned their attention to him, and started to go through his pockets. One of the males, who Mr. Mounir described as wearing a white T-shirt and sandals, tried to intimidate him by telling him not to be “stupid” and just “give up everything.” Ultimately, the two males took Mr. Mounir’s cell phone and his wallet, but they dropped his wallet on the ground when they discovered there was no money inside. Mr. Mounir testified that he saw these two males join two other males in a nearby parking lot. The trial judge found as a fact that the appellant was one of the two males involved in this robbery, based upon Mr. Mounir’s description of one of his two assailants as wearing a white T-shirt and sandals, and as being the “tallest” of the four men he saw that night. The appellant is, in fact, the tallest man in the entire group, and when he was arrested minutes later, he was the only one of the group wearing a white T-shirt and sandals.

• The Arrest and Discovery of the Stolen Goods: As they were driving home after the second robbery, Mr. Galbete stopped at a traffic light behind a police car. Based upon information he had received about the offences, the police officer got out of his scout car and asked Mr. Galbete for his licence and vehicle documentation. Eventually, all five of the young men in the vehicle were arrested. At the time of his arrest, the appellant was seated in the back seat of the vehicle behind the front passenger seat. On the floor of the vehicle in that location, the police discovered a BlackBerry cell phone and a $20 bill, and a wallet that included cards and other identification documents in the name of Alexander Rathgerber. As the trial judge noted in his reasons for judgment, when the appellant was arrested, Mr. Rathgerber’s wallet and cell phone were found literally at the appellant’s feet.

• The Testimony of the Appellant: The appellant testified in his own defence and denied any involvement in the robberies. He testified that he did not hear any talk about robbery until the car stopped at a convenience store and he got out to buy snacks. When he then heard some of the other men discussing robbing someone, he tried to dissuade them from that kind of “stupid stuff.” When they went and robbed Mr. Rathgerber, the appellant was shocked. The appellant testified that, when they all got back into the car, he asked Mr. Galbete to drive him home. In relation to the second incident minutes later, the appellant testified that, when Mr. Galbete parked the car again, three of the group exited and robbed two individuals. The appellant remained in the car. However, when they arrived back with a cell phone, the appellant took the phone and returned it to the victims and apologized on behalf of his friends. However, according to the appellant, one of the young men (Amin Abtidon), followed him back and grabbed the cell phone again. In his reasons for judgment, the trial judge rejected the testimony of the appellant as incredible. More particularly, Merenda J. concluded that the appellant had not been truthful in his evidence and had tried to deceive the court.

[9] In arguing that the verdicts were unreasonable in relation to the first robbery, the appellant relied upon the fact that Mr. Rathgerber did not accurately describe the appellant’s physical characteristics when he was trying to provide identifying descriptions of his assailants. This does not, however, render these verdicts unreasonable. The robbery was over in less than two minutes, took place late at night, and could only have been a terrifying experience for the victim. In these circumstances, it is easy to understand how Mr. Rathgerber might be unable to fully and accurately describe the physical characteristics of all of his assailants. On the other hand, Mr. Rathgerber was certain that he had been surrounded and robbed by four young men, who then quickly escaped into a passing motor vehicle that quickly stopped to pick them up before driving off. It is difficult to imagine how Mr. Rathgerber might be mistaken about the number of individuals involved in his robbery. Accordingly, if the “get away” vehicle was being driven by Mr. Galbete, as he testified, as the trial judge accepted, and as seems inherently likely given that it was his father’s vehicle, the appellant must have been one of the four assailants involved in this robbery. Significantly, in his evidence the appellant never claimed that he was the driver of the vehicle during the first robbery. Moreover, when the appellant was arrested shortly after the robbery, Mr. Rathgerber’s recently stolen property was found, literally, at the appellant’s feet on the floor of the vehicle where he was sitting.

[10] In challenging the reasonableness of the verdicts in relation to the second robbery, the appellant relied upon Mr. Galbete’s testimony that, while the appellant got out of the car with the others when this robbery was about to be committed, the appellant stayed by the car and was not actually involved in the robbery. This testimony does not, however, render these verdicts unreasonable. The trial judge was entitled to conclude, as he did, that Mr. Galbete “tried to bend over backwards to exculpate” his friend, the appellant, in giving this evidence. The trial judge was also entitled to rely upon the important identification evidence of Mr. Mounir. He described one of his two assailants – the one who tried to intimidate him – as the tallest member of the four men he saw, and as wearing a white T-shirt and sandals. The appellant was the only member of the group that fit this specific description. The only other member of the group that might have been wearing a white T-shirt (Mohamed Mohamed) was also wearing a blue sweat shirt over top of his T-shirt, and had running shoes on his feet. The trial judge was entitled to accept this evidence and rely upon it, as he did, in concluding that the appellant was actively engaged in the commission of this robbery.

[11] In conclusion, in my view it was reasonable for the trial judge to reach all of the factual conclusions he did in relation to the evidence in this case. It was open to the trial judge to reject as incredible the testimonial denials of the appellant, and to accept, based upon all of the other evidence, that the appellant had been actively involved in the commission of both robberies. In my opinion, it simply cannot be said that any of the verdicts reached by the trial judge are unreasonable or unsupported by the evidence.

[12] In the result, the appeal against conviction must be dismissed.

C. The Sentence Appeal

[13] The appellant contends that the suspended sentence and term of probation imposed upon him by the trial judge is an unfit sentence. The appellant seeks a conditional discharge.

[14] There is no merit to this aspect of the appeal. Notwithstanding the fact that the appellant was a youthful first offender, in my view the trial judge committed no error in refusing to grant the appellant a conditional discharge. Such a disposition would clearly have been contrary to the public interest.

[15] The appellant was involved in what were, in effect, two late-night robberies of three innocent pedestrians. The appellant and his friends planned these assaultive thefts, and selected their innocent victims at random. The trial judge described the behavior of the men involved in the robbery of Mr. Rathgerber as like “a pack of wolves surrounding their prey,” noting that it must have been a frightening experience for the victim. The appellant was also actively involved in the robbery of Mr. Mounir and Mr. Zambok, in that he was the assailant who tried to intimidate the victims into conveniently turning over their property without a struggle.

[16] The suspended sentence and probationary term imposed upon the appellant by the trial judge is an entirely fit sentence. There is no proper basis to disturb it. Accordingly, the sentence appeal must be dismissed.

D. Conclusion

[17] In the result, the appeal against both conviction and sentence must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: March 10, 2014

[^1]: Throughout these reasons I have referred to the alleged offences as “robberies.” I have done so only as a matter of convenient reference. The appellant was, in fact, only charged with, and convicted of, the crimes of “assault” and “theft” in connection with the offences against each alleged victim.