




CITATION:
R. v.
Lakatos
, 2011 ONCA 318



DATE: 20110421



DOCKET: C52772, C52090 and C51938



COURT OF APPEAL FOR ONTARIO



Rosenberg, Juriansz and LaForme JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Janos Lakatos, Ferset Mohammad and Fyad Mustafa



Appellants



Frances S. Brennan, for the appellant, Janos Lakatos



Robert C. Sheppard, for the appellant, Ferset Mohammad



Dale E. Ives, for the appellant, Fyad Mustafa



Nadia Thomas, for the respondent



Heard: April 5, 2011



On appeal from the decision of Justice Paul F. Lalonde of the
          Superior Court of Justice, dated January 28, 2010.



ENDORSEMENT

Introduction

[1]

After being tried
    together by judge alone, Fyad Mustafa was convicted of: (i) unlawful
    confinement; (ii) uttering death threats; and (iii) possession of a firearm or
    imitation firearm to commit an offence.  Ferset Mohammad and Janos Lakatos were convicted of unlawful
    confinement.  They all appeal their
    convictions and Lakatos and Mohammad seek leave to appeal their sentences.  Their appeals were heard together.

[2]

The trial judge found
    all of the civilian witnesses in this trial to be incredible.  He cautioned himself about the lack of trust
    he could have in their testimony standing alone.  This was perhaps especially true regarding
    the evidence of the complainant, Samir El-Ghafari.  As a result, he instructed himself on the
    need to find confirmatory evidence to support the testimony of the allegations
    being made.

[3]

Here the guilt of the
    appellants rested almost entirely on the testimony of El-Ghafari.  Thus, the trial judge  as he noted 
    searched for evidence from another source that would provide him with the
    confidence that El-Ghafari was telling the truth in the relevant aspects of his
    account of the events.

[4]

It is in connection
    with this chain of reasoning and analysis by the trial judge, which forms the
    core of the appellants grounds of appeal.  The principal arguments are addressed in two issues: (i) whether the
    trial judge properly approached the matter of confirmatory evidence to believe
    the testimony of El-Ghafari; and (ii) whether there were inconsistent verdicts
    as between Fyad Mustafa and Janos Lakatos?


Confirmatory evidence

[5]

The appellants argue that the evidence relied on
    by the trial judge for this purpose, either taken individually or in its
    totality, could not reasonably be sufficient to restore the trial judges
    confidence that El-Ghafari was telling the truth about what happened in the
    motel room and outside the motel room on the way to Bansies house.  We disagree.

[6]

Some of the evidence
    that the trial judge relied on to enable him to trust El-Ghafaris testimony
    includes:

·

the presence of a hammer, rope and duct tape in
    the motel room;

·

rubber based adhesive residue on the chair, the
    cuffs of the complainants sweater, and a wrapper in the cars back seat of the
    type often used in duct tape;

·

red marks on the complainants face and neck,
    and red indented lines on the complainants wrists and neck;

·

Bansies description of the complainants
    behaviour when he was in the washroom in Bansies house; and

·

the
officers testimony
    that the motel room was not set up for playing cards.

[7]

It was not necessary, as the appellants argue,
    that individual items of confirmatory evidence must specifically confirm that
    the criminal conduct amounted to a forcible confinement, or that a firearm was
    used:
R.
v.
J.K.
, [2011] O.J. No. 124
    (C.A.)
.  Rather, the confirmatory
    evidence needed only to give the trial judge a basis for accepting the
    testimony of El-Ghafari regarding relevant aspects of his account of the
    events.

[8]

The trial judge was
    entitled to find, as he did, that a gun was used by Mustafa.  He found that other evidence, including that
    noted above, allowed him to believe material parts of El-Ghafaris evidence.  This included the finding that El-Ghafaris
    belief was that, in all the circumstances, it was a gun he was being threatened
    with:
R.
v.
Charbonneau
, 2004 O.J. No. 1503 (C.A.).  The evidence was sufficient to allow the
    trial judge to reach this conclusion and the finding was reasonable.

[9]

Credibility of all of
    the witnesses, as it is in any trial, was a matter for the trial judge alone to
    determine.

[10]

We would apply the
    same analysis and conclusions to the offence of unlawful confinement.

Inconsistent verdicts

[11]

The trial judge acquitted Lakatos of all
    gun-related offences and noted: I do not have any circumstantial evidence to
    back up whatever El-Ghafari had to say on these charges and thus I find that
    there is insufficient evidence to convict Mr. Lakatos on these three remaining
    charges.  Mustafa argues that this
    verdict is inconsistent with the trial judges conviction of him on the same
    firearms charges.  We disagree.

[12]

To succeed on this
    ground Mustafa must persuade this court that his conviction represents such a
    repugnant and inconsistent verdict from that of Lakatos that no reasonable
    trier of fact could have arrived at this conclusion after proper consideration
    of the facts in the case:
R
. v.
Ertel
(1987), 35 C.C.C. (3d) 398 (Ont.
    C.A.) at 426-427.

[13]

Lakatos was in a
    fundamentally different position as described in El-Ghafaris testimony about
    the use of the gun, and in respect of the additional circumstantial evidence
    supporting that testimony.  For example,
    there was no evidence that Lakatos used the gun to assault El-Ghafari in any
    way.

[14]

The trial judge
    provides a clear and rational basis for reconciling the verdicts; Mustafa, in
    our view, has not met his onus.  This
    ground of appeal must fail.

[15]

The remaining grounds
    of appeal are without merit.  The appeals
    against conviction of all three appellants are dismissed.

Sentence appeal by Lakatos and Mohammad

[16]

All three of the appellants were in essence
    treated by the trial judge as first time offenders.  The Crown asked for a sentence between four
    and five years for each of them.  Mustafa
    and Mohammed each sought a six to nine month conditional sentence including
    house arrest for half of it.  Lakatos has
    not been successful in obtaining his refugee status.  He requested a sentence of time spent in jail
     three months  at 2:1.

[17]

They were each
    sentenced to a two years less one day conditional sentence  they are subject
    to house arrest for all of that time  followed by three years probation.  The trial judge held that this sentence could
    adequately denounce and deter these serious offences, provided the total
    period of community supervision is five years, provided the house arrest
    portion is punitive and long and encompasses the entire conditional sentence
    period set at the maximum allowable period.

[18]

Neither Lakatos nor
    Mohammad claim that their sentences are unfit or outside the appropriate range
    for similar offences and offenders.  Rather, they each argue that their lesser role in the offences warranted
    sentences that were less than they received.  Mohammad says his should be half that imposed on Mustafa; he seeks a
    12-month conditional sentence.  Lakatos,
    on the same basis, seeks a reduction in his sentence to that of time served.

[19]

The trial judge
    carefully reviewed the level of culpability of each of the appellants and
    weighed all the mitigating and aggravating factors.  He ultimately crafted sentences, including
    periods of probation for each, which he found would mirror many of the
    conditions already imposed as part of the conditional sentence.

[20]

We can find no error
    in principle with respect to the trial judges decision on any of the
    sentences.  And, in that regard his
    decisions are entitled to considerable deference, particularly, as the Crown
    notes, given that the sentences are at the low end of the range for similar
    offences.  Nevertheless, there is one
    aspect of the trial judges decision in connection with Lakatos that we believe
    needs to be spoken to.

[21]

Counsel
    for Lakatos also advised the trial judge that, regardless of [the courts]
    disposition here today, Lakatos would be immediately detained by immigration
    authorities and deported to Hungary.  The
    trial judges impression of Lakatos circumstances was described by him this
    way:

The Canadian Border Services Agency is poised to
    arrest him at the expiry of his sentence.  However, it seems that if a sentence to be served in the community is
    given, he will be allowed to serve his sentence here.

[22]

However, at the time of this appeal Lakatos had
    been placed into custody by immigration authorities pending the outcome of the appeal.  This court has since been advised that
    Lakatos will remain in custody until he completes his two year less one day
    conditional sentence and then be deported to Hungary.  In other words, he will not be serving his
    sentence in the community as the trial judge believed and intended; he will be
    incarcerated.

[23]

A fit
    sentence is one that usually describes a range of appropriate sentencing
    responses:
R. v. Hamilton
(2004), 72
    O.R. (3d) 1, at para. 85.  The issue of
    deportation is a factor that can be considered in deciding the appropriate
    sentencing responses and tailoring the sentence to best fit the crime and the
    offender:
Hamilton
, at para.
    156
.
Indeed the trial judge
    believed he was doing just that, except his information and belief was
    incorrect.

[24]

We believe
    that had the trial judge been aware of the real impact of his decision
    regarding Lakatos that he would have fashioned a different sentence.  It appears to us that it would have been one
    that minimized any period of incarceration.   And, as expressed in
Hamilton
,
    had he done so, this would have been an example of the human face of the
    sentencing process:
Hamilton
, at
    para. 158.

[25]

Thus, it
    seems appropriate, and necessary to give effect to the trial judges intention,
    that Lakatos incarceration should be minimized.  We would, therefore, set aside the sentence of two years less one day
    conditional sentence and substitute it for one of time served.  In doing so Lakatos period of incarceration
    will be minimized and the Canadian Border Services Agency can carry out its
    responsibilities.

[26]

In such a
    situation, it seems to us to be entirely in keeping with the principles and
    objectives of sentencing to impose the shorter sentence.   And, while this indulgence afforded to
    Lakatos may be a relatively minor one, there is no countervailing negative
    impact on the broader societal interests occasioned by the imposition of this
    sentence:
Hamilton
at para.
    158.  Lakatos is scheduled to be deported
    to Hungary immediately upon completion of his sentence.

[27]

For these
    reasons,
We
would grant leave to appeal the sentences
    of Lakatos and Mohammad.  We would,
    however, dismiss the appeal by Mohammad.  As for Lakatos,   We would set aside the conditional sentence
    imposed by the trial judge and replace it with a sentence of time served.

M.
    Rosenberg J.A.

R.G.
    Juriansz J.A.


H.S. LaForme J.A.


