



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ramta, 2017 ONCA 580

DATE: 20170707

DOCKET: C61165

Laskin, Simmons and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sunny Ramta

Appellant

Karen Heath and Dirk Derstine, for the appellant

Gavin MacDonald, for the respondent

Heard: June 12, 2017

On appeal from the conviction entered on February 11,
    2013 and the sentence imposed on May 28, 2015 by Justice Irving André of the Superior
    Court of Justice, sitting without a jury, with reasons for sentence reported at
    2015 ONSC 2716.

REASONS FOR DECISION

[1]

The appellant challenges his conviction for attempted robbery on two
    grounds. Firstly, he submits that the trial judge did not adequately take into
    account the frailty of the evidence of the two main Crown witnesses: Sagher, an
    accomplice to the robbery; and Dominici-Perez, a drug trafficker and the
    intended victim. Secondly, he submits that the trial judge subjected the
    appellants evidence to more rigorous scrutiny than that accorded to Crown
    witnesses.

[2]

The victim of the attempted robbery and the appellant shared an interest
    in marijuana and video games. They knew each other from attending school
    together. According to the appellant, the victim was the appellants primary
    supplier of marijuana. The victim denied any involvement in selling drugs.

[3]

The appellant claimed that, on the date of the attempted robbery, he had
    arranged to purchase marijuana from the victim. The appellant arrived at the
    victims home in a car with three others. Sagher was the driver of the vehicle.
    Two of the others went into the house.

[4]

The victim testified that these two others, strangers to him, attempted
    to rob him. The victim was at home with a friend. They both barricaded
    themselves in the victims bedroom, and escaped through a window. The friends
    evidence together with damage to the bedroom door and the window screen
    supported the victims version of the robbers efforts to break into the
    bedroom and the flight out the window. The victim called 911. The victim then
    gave chase to the robbers and came upon the car with Sagher and the appellant
    in it. He recognized the appellant, but did not identify him to police. At the
    same time as the victim was giving a statement to police, the appellant was
    sending him threatening text messages. There were some 15 text messages between
    them in a 51 minute span immediately after the robbery

[5]

The theory of the Crown was that the appellant planned the robbery and
    directed the others to the victims address. The appellant and the victim had
    exchanged text messages earlier in the day.

[6]

Sagher was arrested immediately following the attempted robbery; he
    crashed his car while trying to flee. He pleaded guilty and was awaiting a
    sentencing decision when he testified against the appellant. He initially
    testified that the plan was to buy marijuana and that he did not know who
    planned the visit to the victims home. He said he stayed in the car alone
    while the other three went into the victims home to buy marijuana.

[7]

The Crown successfully applied to cross-examine him on his earlier
    statements to the contrary.

[8]

He had given a statement to police on the night of the robbery telling
    them the appellant planned the robbery. On his guilty plea, he had also stated
    that the appellant planned the robbery and signed a statement to that effect.
    At trial and following cross-examination by the Crown, he acknowledged that
    these were both truthful statements but added that only the other two went into
    the house and that the appellant stayed in the car.

[9]

In cross-examination by defence counsel, he said he did not realize that
    the appellant had planned a robbery until the victim approached his car,
    chasing the other two. He said nothing was said in the car about any plan to
    commit the robbery.

[10]

In re-examination by the Crown, Sagher again agreed that the appellant
    knew the victim and had planned the robbery and reconfirmed the truthfulness of
    his prior statements.

[11]

The trial judges reasons demonstrate that he was well aware of the
    victims initial failure to identify the appellant to the police and the
    inconsistencies in Saghers evidence. The trial judge accepted the victims
    explanation that he was overwhelmed after the incident and concerned about the
    threatening messages. The trial judge also concluded that Sagher tried his best
    to avoid implicating the appellant in the robbery. He accepted Saghers
    evidence that the appellant had orchestrated the plan to rob the victim and
    provided directions to the victims home but remained in the car so that the
    victim would not recognize him.

[12]

This court noted in
R. v. Snyder
, 2011 ONCA 445, 278 O.A.C.
    233, at para. 24 that there is no need for trial judges to recite a
    self-instruction, similar to a jury instruction, about the need for caution
    when assessing the evidence of 
Vetrovec
 witnesses. Assuming special
    scrutiny of the victims evidence was warranted, the trial judge pointed to
    several aspects of the evidence that supported his version of the events and
    also explained why he accepted the victims explanation for the victims
    initial failure to identify the appellant to the police.

[13]

As for Saghers evidence, his position as an accomplice to the crime was
    front and centre at the trial. Moreover, the trial judge heard and decided two
    applications by the Crown to cross-examine him. The inconsistencies in his
    evidence were obvious. Some aspects of the Crowns evidence supported elements
    of his testimony (for example, the evidence of the victim, supported by the
    evidence of his friend, that the victim did not know either of the two men who
    entered the victims residence). Further, sentencing submissions had been made
    when he testified. Finally, viewed in the context of the whole of the evidence,
    the trial judges findings that Sagher attempted to avoid implicating the
    appellant but was telling the truth when he adopted his original statement
    accord with common sense.

[14]

By the end of the trial, the substantial issue was whether the appellant
    was a party to the robbery. In oral argument the appellant did not focus on the
    position taken in his factum that the trial judge erred in his treatment of
    Dominici-Perezs evidence. Given the physical evidence, there was no doubt
    there had been a robbery. Dominici-Perez had no personal knowledge of advance
    steps taken by the appellant to arrange the robbery. We are not persuaded that
    the trial judge erred in his treatment of this evidence.

[15]

The record, including the trial judges reasons, does not support the
    second argument that the trial judge applied more rigorous scrutiny to the
    appellants evidence.

[16]

Read fairly in the context of the whole of his reasons, the rhetorical
    questions posed by the trial judge did not reverse the onus of proof. The trial
    judge was merely explaining why common sense dictated certain findings. There
    is nothing here justifying a departure from the deference owed to the trial
    judges findings of credibility. His conclusions accord with common sense and
    the objective circumstances surrounding the event.

[17]

The appellant also appeals from his 20-month sentence for attempted
    robbery. He submits that the trial judge erred by refusing, after deciding that
    a 20-month sentence was appropriate, to give him any credit for four years and eight
    months of house arrest while awaiting trial and sentence.

[18]

The trial judge refused to allow any credit for this time for two
    reasons. Firstly, he indicated at para. 31 of his reasons for sentence that the
    appellant, through his counsel, has repeatedly adjourned the date of his
    sentencing along with his co-accused. He has therefore not shown any urgency in
    having a sentencing hearing as soon as possible. Secondly, he relied on a
    failure on the appellants part to take any steps to vary the conditions of his
    release.

[19]

The fresh evidence that we admit on this appeal shows that the
    appellants trial counsel was suspended from practice for about a year after trial
    but before sentencing. This caused some delay; trial counsel failed to appear
    on five occasions. It would be unfair to visit the consequences of counsels
    suspension upon the appellant. As the Crown indicates, the actions of a
    co-accused also contributed to the need to adjourn the sentencing proceedings.
    The fresh evidence also indicates that the appellant did in fact apply to vary
    his bail terms to allow him to attend school.

[20]

Had the trial judge considered these circumstances, we are satisfied
    they would have had an impact on his decision as to the credit to be accorded
    for pre-sentence house arrest.

[21]

Apart from the issue of credit for the conditions attached to the terms
    of the appellants interim release, the 20-month sentence imposed was fit. We
    do, however, have the benefit of fresh evidence about the appellants
    extraordinary rehabilitative steps since the sentence was imposed. He has
    completed a two-year college program in heating, refrigeration and air conditioning.
    He was on the deans honour list and has tutored other students. He secured
    full-time employment in this field between his first and second years of study.
    He will shortly graduate with a college diploma in construction and engineering
    and will be a licensed gas technician. He hopes to pursue a five-year
    apprenticeship leading to a refrigeration licence and ultimately run his own
    business.

[22]

The appellant was 21 years old at the time of the offence but is now 26
    years old. His rehabilitative steps taken on his own initiative are evidence of
    growing maturity.

[23]

For the reasons expressed by Sharpe J.A. in
R. v. Ghadban
, 2015
    ONCA 760, 342 O.A.C. 177, we are satisfied that this court should recognize the
    extraordinary steps the appellant has taken towards his own rehabilitation. To
    return the appellant to jail now would disrupt that progress. The public
    interest is better served by allowing the appellant to continue his efforts to
    become a productive member of the community rather than by emphasizing
    denunciation and general deterrence. Accordingly, rather than determining the
    appropriate credit for the four years and eight months of house arrest, we
    would vary the sentence imposed to one of time served.

John Laskin J.A.

Janet Simmons J.A.

G. Pardu J.A.


