



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kwakye, 2015 ONCA 108

DATE: 20150213

DOCKET: C57551

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isaac Kwakye

Appellant

John Kaldas, for the appellant

Melissa Adams, for the respondent

Heard and released orally:  February 10, 2015

On appeal from the sentence imposed by Justice G.D. Lemon
    of the Superior Court of Justice on January 4, 2013.

ENDORSEMENT

[1]

The trial judge was faced with a difficult sentencing problem.  We are
    satisfied that he made two errors in principle.

The Rehabilitative Potential

[2]

The trial judge failed to properly take into account the appellants
    rehabilitative potential and all but dismissed that possibility (see para.
    51).  In fact, the appellant, an eighteen-year-old first offender with a
    supportive family and a positive background, had significant rehabilitative
    potential.

[3]

The trial judge, quite properly, noted that rehabilitation plays a
    lesser role in sentencing for offences like manslaughter.  However,
    rehabilitation remains an important consideration when sentencing an eighteen-year-old
    first offender on any offence.

The Appellants Level of Culpability

[4]

The trial judge did not specifically address the appellants foresight
    with respect to the risk that his partner, the shooter, would use the gun in
    the course of the robbery.  In our view, that question was crucial to a
    determination of the appellants degree or level of culpability and, therefore,
    to a determination of the appropriate sentence.  The trial judge erred in
    principle in failing to address that factual issue.

[5]

We will address that issue.  In our view, on this record, there is no
    doubt that a reasonable person would have foreseen the real risk that the
    shooter would use the gun against a victim in the course of the home invasion. 
    We cannot find, and the Crown does not ask us to find, that the appellant
    actually foresaw that risk.  Objective foresight of that risk is sufficient to support
    the
mens rea
required for unlawful act homicide.  Objective foresight
    of a risk is, however, a lower level of culpability than would be a finding
    that the appellant actually foresaw the risk of the use of the gun.  The
    appellant should have been sentenced on the basis of that lower level of
    culpability.

[6]

Having found two errors in principle, it falls to this court to
    determine the appropriate sentence.  Taking into account the appellants
    rehabilitative potential, and the lower level of culpability described above,
    but still recognizing the seriousness of the crime and the paramountcy of
    denunciation and deterrence, we would vary the sentence imposed from 10 years
    to seven years.  Taking into account the credit given for pre-trial custody and
    bail (three years, four months), the effective sentence is three years, eight
    months.  The sentence is varied accordingly.

Doherty
    J.A.

E.A.
    Cronk J.A.

H.S. LaForme J.A.


