



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Sadykov, 2018 ONCA 296

DATE: 20180326

DOCKET: C62550

Juriansz, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sadyk Sadykov

Appellant

Jennifer K. Penman and Karen Heath, for the appellant

Brett Cohen, for the respondent

Heard: January 29, 2018

On appeal from the conviction entered on December 4, 2015
    and the sentence imposed on March 4, 2016 by Justice Michael G. Quigley of the Superior
    Court of Justice, sitting without a jury.

Juriansz J.A:

[1]

The appellant appeals his conviction and sentence on charges of
    aggravated assault, assault with a weapon and possession of a weapon for a
    purpose dangerous to the public peace. The appellant, his three co-accused and
    the victim were all inmates at the Toronto East Detention Centre. The victim
    was severely beaten in his cell. Surveillance video shows the appellant and the
    co-accused enter into the victims cell and emerge a short time later. There
    was no video surveillance of what occurred inside the victims cell.

[2]

The appellant submits the trial judge erred by drawing inferences to
    fill in the evidentiary gaps and by accepting the Crown theory that the four
    accused had executed a preplanned attack on the victim, in which each of them
    had played a specific and delineated role. The appellant argues that without video
    surveillance of what happened inside the cell, it cannot be known what role the
    appellant played. The appellant submits, given this lack of knowledge, the
    trial judge misapprehended significant evidence, failed to consider reasonable
    alternatives to guilt, and improperly took judicial notice of matters in order
    to fill in the blanks and find the appellant guilty. For example, the
    appellant submits that as the victim refused medical attention there was no
    evidence that he had to have been held down given the absence of defensive
    wounds and that he came within an inch or two of being fatally slashed and
    losing his life.

[3]

I would not give effect to these arguments. The trial judge had access
    to video surveillance from several perspectives showing the groups behaviour
    before they entered the cell, how and in what order they entered the cell, when
    each exited and how they behaved upon doing so, the signs and looks they
    exchanged, their appearance and the state of their clothing, and where they
    went and what they did immediately after the attack. The photographic evidence
    of the victims injuries and the itemization of their nature provided an ample
    basis for the trial judges inferences the victim had no defensive injuries and
    suffered a cut to the neck, where the carotid artery is located. The trial
    judge did not take improper judicial notice in making these findings.

[4]

The appellant would have the court consider speculative scenarios that
    were not put forward at trial. The alternatives put forward on appeal rest on individual
    pieces of evidence and do not have an air of reality when considered on the
    totality of the evidence. I note that the trial judge himself remarked that
    particular actions might be characterized in more than one way but then
    stated that the inferences he drew were those that could realistically and
    reasonably be drawn from the entirety of the evidence.  I am satisfied that
    his characterization of what can be seen on video surveillance is completely
    accurate, and that he applied nothing more than common sense and life
    experience in drawing inferences from the evidence.

[5]

I agree, and the Crown concedes, that the proceedings of assault with a
    weapon and possession of a weapon for a purpose dangerous to the public peace
    should have been stayed on the basis of the
Kienapple
principle:
R.
    v. Kienapple,

[1975] 1 S.C.R. 729. His convictions
    on these two charges should be set aside, but the appellants appeal from conviction
    for aggravated assault is dismissed.

[6]

The appellant seeks leave to appeal his sentence on the ground that it
    is harsh and excessive in all the circumstances.

[7]

For the reasons given in dismissing the conviction appeal, I am satisfied
    that the trial judge did not err by sentencing the appellant as one of the two
    principals in the assault. Nor did the trial judge err in concluding that a fit
    sentence for this attack in a correctional facility was five years
    imprisonment. However, in the next step of his analysis, the trial judge noted
    the appellant still had 10 years remaining on his existing sentences and
    concluded that the five-year sentence, if served consecutively to the existing
    sentences, would result in a cumulative sentence that would be unjust,
    inappropriate and crushing. Therefore, the trial judge bifurcated the sentence
    he imposed, ordering that two and one-half years would be served consecutively
    to the appellants existing sentences, and two and one-half years would be
    served concurrently.

[8]

During the hearing, the court raised the question whether the trial
    judge had jurisdiction to bifurcate the sentence he imposed in this way. The
    parties were given the opportunity and have made written submissions on that
    question. The parties are agreed that the trial judge did not have jurisdiction
    to bifurcate the sentence as he did. I agree.

[9]

Section 719(1) of the
Criminal Code,
R.S.C., 1985, c. C-46
    provides that a sentence commences when it is imposed, except where a relevant
    enactment otherwise provides. Generally, a sentence commences when it is
    imposed and will be served concurrently with sentences the offender is already
    serving at the time of sentencing.

[10]

Section
    718.3(4) permits a court on sentencing an accused to direct that a term of
    imprisonment it imposes be served consecutively to other sentences the accused
    is already serving. In effect, a direction under this provision defers the
    start of the sentence imposed until the sentence already being served has
    expired. Section 718.3(4)(a) provides as follows:

(4) The court that sentences an accused shall consider
    directing

(a) that the term of imprisonment that it imposes be served
    consecutively to a sentence of imprisonment to which the accused is subject at
    the time of sentencing;

[11]

As
    can be seen, there is nothing in the wording of s. 718.3(4)(a) that allows only
    part of a term of imprisonment to be served consecutively. This has been noted
    in the text
Sentencing
,
8th ed. (Markham: LexisNexis, 2008), at
    p. 543, in which the authors writes:

The wording of the statute, which speaks of the term of
    imprisonment as being the res that may be served one after another, leads to
    the inference that it is not permissible to make part of her term of
    imprisonment consecutive another term.

[12]

The
    British Columbia Court of Appeal addressed the question in
R. v. Tam
,
    (1994) 47 B. C. A. C. 238. The trial judge in
Tam
sentenced the
    accused to three years imprisonment and ordered that one year of the three-year
    sentence be served consecutively to an existing six and one-half year sentence
    the offender was already serving. On appeal, the British Columbia Court of
    Appeal varied the sentence from a three-year sentence to a one-year sentence to
    be served consecutively noting, at para. 3, that [c]ounsel for the accused
    agrees with the Crown that the

Criminal Code

does not permit a
    trial judge to make only part of a given sentence consecutive to another term.

[13]

The
    British Columbia Court of Appeal reiterated this conclusion in
R. v. W.
    (G.P.)
, (1998) 106 B.C.A.C. 239, at para. 36.

[14]

The
    Criminal Division of the Court of Appeal of England dealt with the issue in
R.
    v. Gregory (Colin)
, (1969) 53 Cr. App. R. 294 (C.A.). In that case, the
    trial judge had sentenced each of the offenders to 18 months imprisonment on
    one indictment and directed that three months of that sentence be served
    consecutively to the sentence imposed on another indictment. The court said, at
    p. 295, to impose a sentence in this form is undesirable and wrong and that
    such a practice should not be followed. The court pointed to administrative
    difficulties that would arise with such sentences and to the fact that there
    was no authority for this kind of sentence.

[15]

The
    trial judge erred in law when he ordered that part of the five-year sentence he
    imposed on the appellant was to be served concurrently with the sentences
    already being served and the remaining part of the sentence was to be served
    consecutively to the sentences already being served. His disposition has
    resulted in an illegal sentence upon which this court must intervene.

[16]

I
    accept that the sentencing judge properly determined that five years was an
    appropriate sentence, and then, after taking into account the principle of
    totality, considered that the appropriate global sentence should be twelve and one-half
    years.  I agree with the Crown that effect can be given to the trial judges
    ultimate intention by varying the bifurcated five-year sentence imposed to a
    sentence of two and one-half years to be served consecutively.

[17]

In
    conclusion, I would dismiss the conviction appeal, except to the extent of
setting aside
the convictions on the
    counts of assault with a weapon and possession of a weapon for a purpose
    dangerous to the public peace and stays entered, grant leave to appeal sentence,
    allow the sentence appeal and vary the sentence to a term of two and one-half
    years imprisonment to be served consecutively to the appellants existing
    sentences.

Released: RGJ MAR 26 2018

R.G. Juriansz J.A.

I agree. David Watt J.A.

I agree. B.W. Miller J.A.


