



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Osman, 2016 ONCA 64

DATE: 20160122

DOCKET: C60874

Weiler, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Isman Mohamed Osman

Appellant

Eva Taché-Green, for the appellant

Brock Jones, for the respondent

Heard and released orally: January 20, 2016

On appeal from the sentence imposed on March 5, 2015 by
    Justice Paul B. Kane of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant seeks leave to appeal sentence and, if leave is granted,
    appeals his sentence of eight years. The appellant, who was 25 years old at the
    time, was convicted of six counts of robbery during a one-month period, attempted
    robbery (s. 462(a)), conspiracy to commit robbery (s. 465(c)) and flight from
    police.

[2]

In sentencing the appellant, the trial judge rejected the defence
    position that the robberies were part of a crime spree and that concurrent
    sentences should be imposed. He arrived at a total sentence of 21.5 years,
    which he adjusted to an eight-year global sentence after applying the principle
    of totality. The appellant was then given credit for 17 months pre-trial
    custody on a 1.5 to 1 basis.

[3]

The issues on appeal are whether the trial judge erred in principle in
    imposing consecutive sentences, whether he properly took into account
    rehabilitation and whether the overall sentence was fit.

[4]

The appellants first submission is that the sentencing judge ought to
    have counted the 28 months the appellant was serving for two prior related
    offences as part of the total sentence arrived at. The decisions on which he
    relies are
R. v. Johnson
, 2012 ONCA 339, at para. 25 and
R v.
    Parry
, [2012] O.J. No. 1209 (C.A.), at paras. 22-24.

[5]

While the sentencing judge did not specifically advert to these
    decisions, a trial judge is presumed to know the law. We also note that in both
    decisions relied on by the appellant, pleas of guilt to the subsequent offences
    played a significant role in the totality of the sentence. This case involved a
    nine day trial on the issue of identity. We see nothing in the trial judges
    reasons to suggest he did not take proper consideration of the appellants
    prior sentence in considering the global sentence he imposed. The trial judge
    gave the appellant credit for pretrial custody while serving his original
    sentence.

[6]

The appellant further submits that the trial judge erred in not placing
    sufficient weight on the appellants rehabilitation prospects and that the overall
    sentence was crushing.

[7]

In our opinion the trial judge did take into consideration the
    appellants rehabilitation prospects. He referred to his younger age as a
    factor. Contrary to counsels submission, he did consider Mr. Osmans
    acknowledgment that his conduct was stupid.  He also specifically referred to
    what Mr. Osman said in addressing the court.

[8]

Insofar as the issue of whether a consecutive versus concurrent sentence
    ought to have been imposed and the totality of the sentence is concerned, the trial
    judges decision to give the appellant consecutive sentences was an exercise of
    his discretion that warrants a high degree of deference absent an error in
    principle. We see no error in principle. The trial judge appropriately balanced
    the aggravating and mitigating factors. We are of the opinion that the trial
    judge took into account totality by discounting the sentence as he did from 21
    years and then giving the appellant credit for pre-trial custody of 17.5
    months.

[9]

Accordingly while leave to appeal sentence is granted the appeal as to
    sentence is dismissed.

Karen M. Weiler J.A.

M. Tulloch J.A.

David Brown J.A.


