



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
    Ghadban, 2015 ONCA 760

DATE: 20151109

DOCKET: C58474

Sharpe, Hourigan, Benotto JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Mahmoud Ghadban

Appellant

Mahmoud Ghadban, in person

Jill Presser, duty counsel

John Neander, for the respondent

Heard: October 7, 2015

On appeal from the conviction imposed on April 3, 2012
    and the sentence imposed on June 26, 2012 by Justice David Paciocco of the Ontario
    Court of Justice.

Sharpe J.A.:

[1]

The appellant was convicted of robbery and conspiracy to commit robbery
    and sentenced to concurrent sentences of two years imprisonment and three
    years probation on each count. At the outset of oral argument, he abandoned
    his conviction appeal, indicating that he wished to accept responsibility for
    the offence and to express his remorse.

[2]

His sentence appeal is based upon fresh evidence indicating that he has
    made significant progress towards rehabilitation since the sentence was
    imposed.

The offence

[3]

The trial judge found that the appellant was a party to a home invasion
    robbery. The appellant knew the intended victim who was an alleged drug dealer.
    The appellant went to the victims apartment in the company of two other men,
    described in these proceedings as the Jamaicans.  The appellant knocked on
    the victims door, identified himself and thereby induced the victim to open
    the door. As soon as he did so, the Jamaicans forced their way into the
    apartment. The appellant left and the Jamaicans ransacked the apartment looking
    for money. The victim was ordered to remain seated while they did so. The
    appellant was arrested waiting next to the car used by the perpetrators. The
    Jamaicans were not apprehended. The trial judge rejected the appellants
    evidence that he did not know that the other two men planned to commit robbery.

The sentence

[4]

The trial judge found that as the victim was robbed in his home and
    subjected to a strongly implied threat of physical harm, a stern approach was
    called for. He noted, however, that no weapons were used and that there was no
    actual violence or injuries inflicted and the perpetrators were not disguised.
    He described the offence as being not one of the more aggravated home invasions
    that has plagued our community.

[5]

The trial judge found that appellants role, while limited, was
    indispensable to gaining entry into the apartment.

[6]

The appellant was 27 years old at the time of sentencing and 25 at the
    time of the offence. He has a prior youth court conviction for robbery (2002),
    another youth court conviction for assault causing bodily harm (2003), an adult
    conviction for assault and failure to comply with a probation order (2006).

[7]

The trial judge noted that there was no expression of remorse and that
    the sentence must be structured to emphasize specific deterrence, that is, to
    tell the appellant that he must accept responsibility for his actions. The
    trial judge observed that the appellant was immature and irresponsible but that
    he had a supportive family and opportunities to change. He found that
    rehabilitation was an important factor. He stated: Mr. Ghadban is at the
    crossroads. The next few years will determine whether he becomes a productive
    citizen and family man or whether he becomes a career criminal.

The fresh evidence

[8]

The appellant was incarcerated at Millhaven Institution for 7 weeks and
    2 days following his conviction. During that time, Millhaven was in transition
    from an assessment to a maximum security facility and the appellant was placed
    in 23-hour confinement.

[9]

The appellant was released on bail pending his trial seven days after
    his arrest and he has been on bail pending appeal since August, 2012. As a
    result, apart from a short period of pretrial custody and the 7 weeks he spent
    in Millhaven following his conviction, he has now been in the community on a
    recognizance for almost five years. The conditions of his bail pending appeal
    imposed a 10 pm to 6 am curfew and required him to reside with his parents.

[10]

With
    the help of his family, he retained counsel to launch an appeal. The Crown
    consented to bail pending appeal on August 16, 2012. No progress was made in
    perfecting the appeal, in part because counsel suffered an injury and in part
    because the appellant was in arrears paying the full retainer. Bail pending
    appeal was extended on April 19, 2013. A second counsel was retained. That
    counsel filed a factum that was plainly inadequate and there were ongoing
    issues regarding full payment of the retainer. Counsel asked to be removed from
    the record. On April 9, 2015, the court ordered that counsel be removed from
    the record if he did not file a revised factum by May 11, 2015. No revised
    factum was filed and on May 13, 2015, it was ordered that this appeal proceed
    as an inmate appeal.

[11]

Since
    the time of sentencing, the appellant has taken significant steps towards
    rehabilitation. He enjoys the strong support of his parents and siblings. He
    has married and has two children, one aged two years and the other nine months.
    He has also assumed parental responsibilities for his wifes older child. He is
    gainfully employed and is the sole source of support for his wife and children.
    His employer describes him as good employee who has a good attendance record
    and great working relationships with his fellow employees. He has volunteered
    for a political campaign and for the United Way. The United Way Donor Relations
    Officer

describes him as an incredible ambassador and as both
    reliable and passionate about people in the Ottawa community.

Issue

[12]

The
    appellant argues that in view of the fresh evidence, the sentence imposed by
    the trial judge is no longer fit and should be reduced or stayed.

Analysis

[13]

It
    is not disputed that the sentence was fit when imposed.  The question is
    whether it should be reduced or stayed in the light of the fresh evidence. The
    Crown does not oppose the admission of the fresh evidence.

[14]

It
    is well-established that if there is fresh evidence to show a change of
    circumstances after a fit sentence was imposed, an appellate court may
    exercise its discretion and act on it pursuant to the obligation to assess the
    fitness of the sentence at the time when the appeal is heard: Ruby,
Sentencing
(4
th
ed.)  at p. 462;
R. v. Johnson
, [2006] O.J. No.
    2182 at para. 11.

[15]

In
R. v. Sipos
, 2014 SCC 47, [2014] 2 S.C.R. 423,at para. 30, the Supreme
    Court of Canada explained the balance that needs to be struck between arriving
    at sentences that are fit and just for offenders in the light of the
    circumstances at the time of the appeal and respecting the need for finality
    and to avoid undermining the sentencing process by undue emphasis on
    after-the-fact-developments:

Fresh evidence addressing
    events that have occurred between the time of sentencing and the time of the
    appeal may raise difficult issues which bring competing values into sharp
    relief. On one hand, we must recognize, as Doherty J.A. put it in
R.
    v. Hamilton
(2004), 72 O.R. (3d) 1, at para. 166, that [a]ppeals
    take time. Lives go on. Things change. These human realities cannot be ignored
    when the Court of Appeal is called upon to impose sentences well after the
    event.  However, we must equally pay attention to the institutional
    limitations of appellate courts and the important value of finality. Routinely
    deciding sentence appeals on the basis of after-the-fact developments could
    both jeopardize the integrity of the criminal process by undermining its
    finality and surpass the appropriate bounds of appellate review:
Lévesque
,
    at para. 20;
R. v. Smith
(2005), 376 A.R. 389 (C.A.), at
    paras. 21-25.

[16]

The
    fresh evidence demonstrates that the appellant has made very significant
    changes in his life in the three years since the sentence was imposed. He has
    undertaken, assumed and fulfilled the responsibilities of a husband and a
    father. He has become a trusted and productive employee. He has been active as
    a community volunteer. He now accepts responsibility for his crime. He has complied
    with his conditions of release and there has been no recurrence of criminal
    behaviour in the five years since this offence was committed.

[17]

While
    the appellant was able to achieve something of a turn-around in his life as a
    result of being on bail pending appeal, and while the delay in getting the
    appeal heard was caused in part by his inability to come up with the funds
    required to retain counsel, there is no suggestion that he artificially
    manipulated or gamed the situation.

[18]

The
    trial judge quite properly emphasized the need for a sentence that reflected
    the needs of specific deterrence and rehabilitation in the circumstances of
    this case. It would appear that those needs have now been met and that neither
    factor would be fostered by maintaining the original sentence. In his
    submission to us, the appellant stated that the words of the trial judge had a
    profound effect upon him, that he has taken what the trial judge had said to
    heart and made a determined effort to turn his life around. Simply put, the
    appellant took the right path at the crossroads described by the trial judge
    and has become a productive citizen and a family man as the trial judge hoped
    he would.

[19]

I
    agree with the respondent Crown that a stay of the remaining custodial portion
    of the sentence would not be an appropriate remedy. Stays of sentence are
    sometimes granted in successful Crown sentence appeals. If the court finds that
    the sentence imposed at trial was unfit, it imposes what it considers a fit
    sentence, but then exercises its discretion to avoid the injustice that would
    result from re-incarcerating the offender who has served the original sentence
    and has gotten on with his or her life.

[20]

Here
    the situation is different. The sentence imposed at trial was fit and it is the
    offender who appeals. The court is not asked to increase a sentence that has
    already been served and we do not have before us someone who has done his
    time only to be faced with further punishment on account of a Crown appeal.

[21]

On
    this appeal we must directly confront the different question of whether the fit
    sentence that was imposed should be reduced because of the progress the
    offender has made while awaiting the hearing of this appeal.

[22]

The
    answer to that question is not easy. This was a serious offence that ordinarily,
    would clearly call for more than seven weeks imprisonment. On the other hand,
    we are dealing with a case in which, however inadvertently, the criminal
    process and the sanction that was imposed have actually worked. The two
    sentencing objectives emphasized by the trial judge, specific deterrence and
    rehabilitation, have now been satisfied.

[23]

The
    only justification for requiring this offender to return to prison at this
    point would be to satisfy the need for general deterrence and denunciation. In
    my view, any gain in general deterrence would be minimal and would be offset by
    the negative effect on the appellants ongoing rehabilitation. I would maintain
    that the two year sentence was fit when imposed and it is only because of the
    very unusual significant strides taken by the appellant since sentence was
    imposed that I would alter the sentence. To the extent sentences imposed by the
    courts send a message, the message sent by reducing the sentence would be
    that where an offender takes unusual steps to turn his life around, those steps
    will be recognized by the court. In my view, the gain achieved by way of
    encouraging social peace and harmony from that message would greatly exceed any
    gain achieved by way of general deterrence and denunciation if he were required
    to serve the full term of his sentence at this stage.

[24]

The
    appellants life would be devastated if he were to be sent back to jail at this
    point. His family would be seriously disrupted and he would be diverted from
    the strong direction he has taken towards rehabilitation. To return him to jail
    would, as in
R. v. Porter
(1980), 26 Nlfd. & P.E.I.R. 26 Nfld. (Nfld.
    C.A.), at para. 11, have the effect of sacrificing the principle of
    rehabilitation for the principles for punishment and deterrence. See also
R.
    v. Sinclair
, 2012 MBCA 24 at para. 24: [I]t would be counter-productive
    to sacrifice the gains that have been achieved in terms of rehabilitation to
    foster the principles of denunciation and general deterrence by means of
    incarceration (citing Gilles Renaud,
The
Sentencing Code of Canada: Principles and Objectives
(Markham:
    LexisNexis Canada Inc., 2009) at para. 5.97).

[25]

In
    my view, this is a very unusual case. To ignore the

efforts of the
    appellant and the consequent human realties (
R. v. Hamilton
) of the
    case would be contrary to sound sentencing policy and the interests of justice.

Disposition

[26]

For
    these reasons, I would grant leave to appeal sentence and reduce the custodial
    portion of the sentence to time served. In all other respects, the sentence is
    maintained. The conviction appeal is dismissed as abandoned.

Released: November 9, 2015

Robert J. Sharpe
    J.A.

I agree C.W.
    Hourigan J.A.

I agree M.L. Benotto
    J.A.


