



COURT OF APPEAL FOR ONTARIO

CITATION:
    R. v. Cox, 2015 ONCA 769

DATE: 20151110

DOCKET: C58141

Doherty, Pepall and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Tristan Cox

Appellant

Richard A. Fedorowicz, for the appellant

Craig Harper, for the respondent

Heard and released orally: November 6, 2015

On appeal from the conviction entered on August 1, 2012,
    with reasons reported at 2012 ONSC 4397, and the sentence imposed on September
    7, 2012 by Justice Michael Code of the Superior Court of Justice, sitting without
    a jury.

ENDORSEMENT

[1]

The appellant, Tristan Cox, appeals from his conviction on robbery and
    firearm-related charges stemming from the robbery and shooting of Arif Berkedle
    in a FIDO retail store in the Jane-Finch Mall.  The appellant also seeks leave
    to appeal from the sentence imposed of 11 years imprisonment, less 22 months
    pre-sentence custody.

CONVICTION APPEAL

[2]

On his conviction appeal, the appellant advances two main arguments.

Misapprehension of Evidence

[3]

First, the appellant submits that the trial judge misapprehended
    material evidence by disregarding two pieces of evidence.  The first was the
    medical evidence concerning the entry point and trajectory of the bullet in the
    thigh of the shooting victim, Berkedle.  The treating surgeon testified that
    the gunshot had entered the lower, back portion of Berkedles right thigh and
    exited the front of the thigh just above the knee.  The appellant submits that
    this evidence corroborated the appellants testimony that Berkedle had produced
    and discharged the firearm, yet the trial judge gave it no weight.

[4]

The second piece of evidence was the agreed fact that no gunshot residue
    (GSR) particles were identified on the tapelift samples from the hands of the
    appellant.  The appellant submits that trial judge made no reference to the GSR
    evidence, yet that evidence undermined the Crowns theory that the appellant
    shot Berkedle.

[5]

We do not accept the appellants argument.  The trial judge did not
    disregard the medical evidence about the trajectory of the gunshot.  He fully
    and accurately summarized the evidence in paras. 45 and 46 of his reasons.  He took
    it into account, but concluded that the evidence did not assist in resolving
    the central issue of credibility concerning who fired the gun during the
    robbery because the evidence was just as consistent with the appellant firing
    the gun while Berkedle turned away.

[6]

The evidence could not reasonably be understood as demonstrating the
    exact positions of the appellant and Berkedle when the shot was fired. 
    According to the appellant and the co-accused, they were struggling, and
    according to the evidence of Berkedles sister, which was accepted by the trial
    judge, they were pushing.  Given the state of that evidence, it was open to the
    trial judge to place greater weight on the other evidence to resolve the
    central issue of credibility.

[7]

Although the trial judge did not refer to the GSR evidence in his
    reasons, during an exchange with appellants counsel in closing submissions the
    trial judge explained that he could not take judicial notice of whether a
    person should or should not have GSR on his hands after firing a gun.  Expert
    evidence was required, in the trial judges view, and the appellant did not
    call any on that issue.  We agree with the trial judges approach to the GSR
    evidence.

Application of Different Standards of Scrutiny to the Evidence

[8]

The appellants second submission is that the trial judge subjected the
    evidence of the defence to a stricter level of scrutiny than that of the
    Crown.  We see no merit in that argument.  In his reasons, the trial judge
    meticulously reviewed the evidence and explained clearly how he resolved the
    central issue of credibility concerning who was carrying the gun during the
    robbery.  In paragraphs 24 through 35 of its factum, the Crown argues that when
    the specific impugned findings of the trial judge are read within his larger
    treatment of the evidence, no uneven scrutiny of the evidence is disclosed.  We
    accept that submission of the Crown.  When read in their totality, the trial
    judges reasons disclose that he scrutinized the evidence with an even hand.

[9]

The appellants appeal from conviction therefore is dismissed.

SENTENCE APPEAL

[10]

The
    appellant advances three grounds of appeal in respect of the 11-year sentence
    imposed on him.

Treatment of Aggravating and Mitigating Factors

[11]

First,
    the appellant submits the trial judge erred in his treatment of the aggravating
    and mitigating factors for sentencing.  Specifically, the appellant contends
    the trial judge erred in finding that the offence was planned to some extent,
    thereby acting as an aggravating factor, while at the same time giving
    insufficient weight to the appellants youth and prospects for rehabilitation.

[12]

We
    do not accept this submission.  Ample evidence supported the trial judges
    finding that the robbery was planned to some extent, including the evidence of a
    store owner, Mr. Saini, who testified that he saw the appellant and his co-accused,
    Mr. Koroma, walk and talk together for about five minutes in the vicinity of
    the FIDO store, as well as the evidence of his co-accused who told the
    appellant he was going to punk off Mr. Berkedle and take money from him.

[13]

The
    trial judge expressly identified the appellants youth and status as a first
    offender as mitigating factors.  He observed that given the appellants age,
    there was still hope he could change.  However, he concluded that the
    appellants prospects of rehabilitation were not particularly strong.  That
    finding was open to the trial judge to make on the evidence before him, as was
    his finding that the fact the appellant was a first offender was far
    outweighed by the fact that he fired the gun in a crowded public place causing
    life-threatening injuries to the victim, all in furtherance of some petty or
    criminal grievance.

Fitness of Sentence

[14]

The
    appellants second submission is that the total sentence imposed was excessive
    because the trial judge misidentified the upper range of sentence for the
    offence of discharging a firearm with intent to endanger life. According to the
    appellant, the established range of sentence for the discharge of a firearm in
    the course of a robbery, resulting in the wounding of a person, is seven to
    eleven years.

[15]

The
    appellant concedes the sentence imposed of 11 years does fall within that
    range, although at the upper end.  We agree with that concession to the extent
    that most sentences will fall within the 7 to 11 year range, although there may
    be significantly higher sentences: see
R. v. Young
, 2009 ONCA 891,
    leave to appeal refused 2011 CanLII 80853 (S.C.C.).

[16]

The
    trial judge gave lengthy reasons for the sentence he imposed.  He situated the
    appellants offences in the mid-range as they were very serious, and he arrived
    at a range of 11 years concurrent for Counts 1 and 3  robbery while armed with
    a firearm and the discharge of a firearm at Berkedle with the intent to
    endanger his life.  We see no error in his reasons.  The sentence was entirely
    fit given the nature and location of the offences.

Credit for Pre-Sentence Custody

[17]

The
    final ground of appeal of the sentence concerns the trial judges award of
    credit for pre-sentence custody at 1:1 for the 22 months of pre-sentence
    custody.  Sentencing in this case took place before the decision of the Supreme
    Court of Canada in
R. v. Summers
, 2014 SCC 26, [2014] 1 S.C.R. 575. 
    In light of that decision, the appellant submits that he is entitled to credit
    at a rate of 1.5:1.  The Crown concedes the point, and we see no reason in this
    case to depart from the general approach set out in
Summers
of
    awarding credit for pre-sentence custody at the rate of 1.5:1.

[18]

We
    agree that the effective sentence should be 11 years as imposed by the trial
    judge.  Giving full credit for the presentence custody, the actual sentence on
    Count 3 is varied from 9 years, 2 months to 8 years, 3 months.  The sentences
    on the other counts, which were all concurrent to the sentence on Count 3,
    remain the same.

[19]

Accordingly,
    we grant the appellant leave to appeal his sentence, and the sentence is varied
    accordingly.

Doherty
    J.A.

S.E.
    Pepall J.A.

David
    Brown J.A.


