





CITATION:
R. v. Morgenrood, 2011
          ONCA 366





DATE:
          20110509



DOCKET: C52921



COURT OF APPEAL FOR ONTARIO



Laskin, Feldman and MacPherson JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Dylan Lee Morgenrood



Appellant



Ian R. Smith, for the appellant



Greg Skerkowski, for the respondent



Heard and released orally: May 6, 2011



On appeal from the sentence imposed on September 18, 2009, by
          Justice Stephen J. Hunter of the Ontario Court of Justice.



ENDORSEMENT



[1]

Following a preliminary inquiry, the appellant pled
    guilty to one count of aggravated assault in the Ontario Court of Justice.
    Justice Hunter imposed a sentence of three years, taking into account six
    months credit for time served (the appellant actually served five months and
    three days of pre-sentence custody). The appellant appeals his sentence. He
    also applies to have fresh evidence admitted in support of his appeal.

[2]

The appellant was 23 years old when he committed a
    particularly vicious assault on the complainant. The complainant was rendered
    unconscious, hospitalized, and took some time to recover. The Crown sought a
    sentence of 4-5 years and the defence proposed two years.

[3]

The appellant advances two grounds of appeal.

[4]

First, the appellant asserts that the sentencing judge
    imposed an unreasonably harsh sentence.

[5]

We do not accept this submission. In light of the
    circumstances of the offence and the offender, a sentence of three years and
    six months was not unduly harsh.

[6]

Second, the appellant submits that the sentencing judge
    erred by failing to give sufficient weight to a relevant factor in sentencing
    the appellant. The factor in play was the almost certain deportation of the
    appellant to South Africa if he received a penitentiary term.

[7]

This is not a case where the deportation factor was not
    raised at the sentence hearing: see, for example,
R. v. B.R.C.
, 2010 ONCA 561. Indeed, the trial judge raised the
    issue during the Crowns submission:

[A]s I understand it, with his record particular regard
    to this offence that if a penitentiary term was imposed he would be deported,
    and if he would be deported, which seems to be a
fait a compli
, would I not consider that to be significant since he
    came to this country as a young teenager and will now be prohibited from
    remaining?

Crown counsel responded in this fashion:

Your Honour can take that into account in terms of
    the overall sentence but it shouldnt be a significant factor because we dont
    know if hes actually going to be deported. My experience in the past has been
    that sometimes it takes 10 years, sometimes it takes 15 years, sometimes things
    happen that prevent the deportation. Its a possibility and its a strong
    probability that it will take place but theres no guarantee that it will and the
    sentence should reflect what an individual should receive for this offence with
    these antecedents.

[8]

Defence counsel made the potential deportation of the
    appellant the central point of his sentencing submission. He said:

But there is a human side to Mr. Morgenrood as
    well, he is a 24 year old, South African National, who came to Canada at age 14
    and that, as youll see in the pre-sentence report, represented a significant
    transition in his life. Unfortunately he never did obtain citizenship and at
    this point hes there is a significant consequence to this conviction. He is
    facing deportation, in fact the wheels have started rolling with respect to having
    him deported. Mr. Morgenrood did run a preliminary inquiry as per his Constitutional
    right but, didnt do so out of any spite for the victim nor to somehow try to
    beat the charges on a technicality so to speak, but did so because of this
    threat of deportation, it is a very real threat which exists. Mr. Morgenrood
    has been contacted by Canada Border Services already and they are pursuing the
    deportation of Mr. Morgenrood. Which is particularly difficult given that Mr.
    Morgenroods entire family and social network exists here in Canada. He has
    nothing to go back to once he is sent back to South Africa.

[9]

In his reasons, the sentencing judge said this about
    the deportation factor:

I agree with [Crown counsel] that the fact he will
    most probably be deported is not a critical factor for the court to consider,
    but it is, in my view, of some significance since it will potentially alter his
    life circumstances and is a high probability for him.

[10]

It is clear from these passages that the sentencing
    judge was aware of the potential deportation issue, caused counsel to address
    it, and addressed it himself in his reasons. Based on the record and
    submissions before him, we cannot say that the sentencing judge gave
    insufficient weight to this factor.

[11]

That leaves the appellants application to introduce
    fresh evidence. The fresh evidence has three components. First, a formal
    deportation order has been made against the appellant. Second, the appellants
    mother explains in an affidavit the current family situation (mother,
    step-father and brother live in Calgary; father, grandmother and aunt live in New
    Zealand; no close family member lives in South Africa). Third, a pastor from
    the Quinte area describes her involvement with the appellant at the Warkworth
    Institution, including the anger management program he is taking under her
    supervision. Both the appellants mother and pastor (who are former residents
    of South Africa) describe the difficulties the appellant will have if he is
    forced to return to South Africa after a 14-year absence and with no family
    network to support him.

[12]

With the benefit of this enhanced record, including
    information about his family support system in Canada and the complete absence
    of any support in South Africa, we think it is appropriate to reduce the
    sentence to two years less a day (minus six months credit for pre-sentence custody)
    plus three years of probation upon his release, the terms of which we assume
    can be worked out by counsel.

[13]

The appeal is allowed in accordance with these reasons.

J. I. Laskin J.A.

K. Feldman J.A.

J. C. MacPherson J.A.


