



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hunt, 2018 ONCA 480

DATE: 20180523

DOCKET: C63586

Strathy C.J.O., Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wilson Hunt

Appellant

Deepa Negandhi, for the appellant

Philippe G. Cowle, for the respondent

Heard: April 27, 2018

On appeal from the sentence imposed on March 8, 2017 by
    Justice Robert Kelly of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant seeks leave to appeal his sentence of four years
    imprisonment (with credit of 743 days for time served in custody) on his
    convictions for assault with a weapon, assault, and possession of a weapon for
    a dangerous purpose. A charge of unlawful confinement was stayed. His
    co-accused, his cousin Andrew Hunt, was convicted of aggravated assault,
    assault with a weapon, possession of a weapon for a dangerous purpose and
    uttering death threats. Andrew was also sentenced to four years imprisonment.

[2]

The appellant makes two primary submissions. First, he asserts in oral
    argument that the sentence was unfit, having particular regard to the role that
    he played in the assault in comparison to Andrew, the absence of evidence that
    he injured the complainant, and his lower level of moral culpability.

[3]

Second, in his factum, he submits that the sentencing judge should have
    reduced the sentence pursuant to
R. v. Nasogaluak
, 2010 SCC 6, [2010]
    1 S.C.R. 206, due to alleged Crown misconduct.

[4]

We are not persuaded by either submission.

[5]

In our view, the sentence was fit. The complainant was, in the sentencing
    judges words, beaten to a pulp and left with extensive injuries after a joint
    attack by the cousins. The two had armed themselves with weapons  a machete in
    the appellants case and an imitation handgun and cheese knife in Andrews 
    and knocked on the complainants door in the early morning of October 21, 2015.
    The complainant knew that Andrew was angry with him for an alleged affair with
    Andrews wife, but invited them in because the appellant was his long-time
    friend whom he believed meant him no harm.

[6]

He was wrong. Within a few seconds of entering the complainants
    apartment, the appellant set upon him, grabbed him by the throat and held him against
    the wall. A brutal attack followed. While the appellant delivered the first
    big punch and continued to punch and torment the complainant with the machete throughout
    the attack, the sentencing judge found that Andrews level of violence was far
    greater.

[7]

In the course of the assault, Andrew threatened the complainant with the
    imitation handgun and cut him repeatedly with the cheese knife. The appellant
    hit the complainant on the top of the head with the machete  hard with the
    flat part and softly and more carefully with the sharp edge. The appellant
    was present for and participated in most of the attack, although he departed
    before it ended with the complainants fortuitous escape.

[8]

While the sentencing judge could not find that the appellant actually
    wounded the complainant, he found that he played a significant role in the
    attack. The appellant initiated the assault, continued to participate in it and
    was present for most of it.

[9]

The sentencing judge identified a number of aggravating factors, including
    that:

·

the complainant was attacked in the sanctity of his own home, where
    he was entitled to feel safe;

·

there was a breach of trust  the complainant only let the cousins
    into his apartment because he believed the appellant, his long-time friend, would
    do him no harm;

·

the cousins acted in concert to mount an unprovoked attack on a
    man who had no chance to defend himself; and

·

there was a measure of premeditation to the attack, which
    occurred moments after the cousins entered the complainants apartment.

[10]

The
    sentencing judge considered the relevant sentencing principles, including
    parity and proportionality, and gave separate consideration to the conduct and
    circumstances of both the appellant and Andrew.

[11]

The
    appellant claims that in sentencing him to four years imprisonment, the
    sentencing judge treated him in the same way as Andrew, who was convicted of aggravated
    assault. We disagree.

[12]

While
    the cousins received the same sentence, the sentencing judge considered the
    individual circumstances of each in arriving at their sentences. He identified
    significant mitigating factors in favour of the appellant, but also noted many
    aggravating factors, including his lengthy criminal record containing multiple violent
    offences and breaches of court orders. The appellants record included a penitentiary
    sentence of three and one-half years in 2010 for a vicious attack on his
    domestic partner. He was recommitted in August 2013 as a statutory release
    violator, and re-released in November 2013. The attack on the complainant
    occurred some two years later. The sentencing judge observed that the
    appellants lengthy criminal record was marked by serious violence, raising the
    need for a sentence that gave proper attention to specific deterrence.

[13]

The
    sentencing judge expressly recognized the parity principle and described a
    number of common aggravating factors as between the cousins, as well as some
    differences. Andrew clearly played a greater role in the infliction of the complainants
    injuries and continued the assault after the appellant had departed. On the
    other hand, Andrew had what the sentencing judge described as a relatively
    minor record with no previous violence. It was his first sentence of
    imprisonment.

[14]

In
    our view, the sentencing judge considered the relevant principles and gave
    appropriate consideration to the application of those principles. The sentence is
    fit.

[15]

The
    appellants submission based on
Nasogaluak
is that the sentencing
    judge erred in failing to reduce his sentence due to late disclosure causing a delay
    in the appellants mid-trial bail hearing. The appellant claims that the
    Crowns delay in providing documentation, which resulted in a two-week
    adjournment of the bail hearing, caused him prejudice. The prejudice alleged is
    that the delay in addressing the bail application (which was ultimately unsuccessful)
    caused unnecessary and prolonged uncertainty for the appellant and his family
    that he supported.

[16]

The
    bail hearing was delayed when defence counsel refused to permit the Crown to
    rely on police synopses to prove the facts of the appellants previous
    offences. The Crown attempted to obtain alternative sources of evidence to
    prove the same information. On the date of the bail hearing, the Crown produced
    a transcript of the appellants guilty plea and a police officers notes
    relating to a prior offence. This resulted in an adjournment to enable defence
    counsel to review the additional evidence. The respondent submits that the additional
    evidence was consistent with the synopses originally produced by the Crown.

[17]

In
    the view of the sentencing judge, the alleged misconduct did not have anything
    to do with the circumstances of the offence or the offender so as to warrant
    consideration in sentencing: see
Nasogaluak
, at paras. 3 and 49. We
    agree. Moreover, even if the late disclosure can be described as state misconduct,
    it does not rise to the level of being a mitigating factor in this case.

[18]

Finally,
    the appellant submits that the sentencing judge miscalculated the time attributable
    to pre-sentence custody. The respondent concedes there was a minor error: the
    appellants sentence should be reduced by 13 days to reflect 504 days
    pre-sentence custody with credit of 1.5:1. This gives a credit of 756 days,
    rather than the 743 days credited by the sentencing judge. We accept the
    appellants submission.

[19]

For
    these reasons, we grant leave to appeal sentence, and allow the appeal to the
    extent of reducing the appellants sentence by 13 days. Except to that extent,
    the appeal is dismissed.

G.R. Strathy C.J.O.

David Watt J.A.

Gloria Epstein J.A.


