



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Oliveros-Ortega, 2020 ONCA
    716

DATE: 20201109

DOCKET: C64279

Huscroft, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jorge Luis Oliveros-Ortega

Appellant

Anthony Marchetti, for the appellant

Adam Wheeler, for the respondent

Heard and released orally:
    November 5, 2020 by video conference

On appeal from the conviction entered on
    October 20, 2014 and the sentence imposed on May 4, 2015 by Justice Gary T. Trotter
    of the Superior Court of Justice.

REASONS FOR DECISION

[1]

Mr. Oliveros-Ortega appeals both his conviction
    and his sentence for theft under.

[2]

The appellant went into a bank and passed a note
    to a teller saying that this was a robbery and demanding money. The teller gave
    the appellant $600. When the appellant asked for more, the teller refused. The
    appellant left the bank with the money.

[3]

While originally charged with robbery, at trial
    before a jury the appellant obtained a directed verdict dismissing the robbery
    charge but leaving the included offence of theft. The appellant subsequently pled
    guilty to theft under.

[4]

The appellant now asserts that there was an
    insufficient factual basis to sustain a conviction for theft. We disagree. The
    appellant took property without colour of right and with the intention to
    deprive the owner of that property. The elements of the offence of theft are
    made out. We also note that the appellant did not seek to set aside his guilty
    plea in which, among other things, he would have admitted that the essential
    elements of the offence were made out.

[5]

With respect to the sentence appeal, the
    appellant received a suspended sentence after being credited with 12 months for
    pre-sentence custody. The appellant contends that the trial judge erred in not
    reducing his sentence to six months because of the immigration consequences in
    accordance with the principles set out in
R. v. Pham
, 2013 SCC 15,
    [2013] 1 S.C.R. 739.

[6]

The trial judge was alive to the immigration
    consequences for the appellant and made extensive reference to them in his
    reasons for sentence. But ultimately, he concluded that a sentence of 12 months
    was a fit sentence. As stated in
Pham
at para. 14, a sentencing judge
    may exercise his or her discretion to take collateral immigration consequences
    into account, provided that the sentence that is ultimately imposed is
    proportionate to the gravity of the offence and the degree of responsibility of
    the offender. On that point, we note that the appellant has a criminal record,
    which includes a prior conviction for theft under.

[7]

The trial judges sentencing decision is
    entitled to deference. Absent a reviewable error that affects the sentence, or a
    showing that the sentence is demonstrably unfit, an appellate court is not to
    interfere with it:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089. Neither
    of those avenues for intervention are available here.

[8]

The appeal as to conviction is dismissed. Leave
    to appeal sentence is granted but the appeal is dismissed.

Grant
    Huscroft J.A.
B.W. Miller J.A.
I.V.B. Nordheimer J.A.


