



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Mawut, 2017 ONCA 168

DATE: 20170227

DOCKET: C57983

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sunday Mawut

Appellant

David Parry, for the appellant

Shawn Porter, for the respondent

Heard: February 23, 2017

On appeal from the sentence imposed on April 5, 2013 by
    Justice Brian OMarra of the Superior Court of Justice.

ENDORSEMENT

[1]

Mr. Mawut was convicted of multiple charges stemming from an armed
    robbery in 2011. He was sentenced to nine and a half years imprisonment less
    approximately 18 months pre-sentence custody. He has abandoned his conviction
    appeal and seeks leave to appeal his sentence. In this regard, he argues the
    trial judge made two errors.

[2]

First, Mr. Mawut
contends that, as this
    is a youthful offenders first penitentiary sentence, the trial judge failed to
    impose a sentence that is as short as necessary.
The trial judges
    failure to identify this principle, he argues, resulted in a sentence that is
    harsh and excessive and failed to recognize Mr. Mawuts youth, his past history
    of being a refugee, his abuse at the hands of family members, and his prospects
    for rehabilitation.
The second error the trial
    judge is said to have committed is in granting enhanced credit for pre-sentence
    custody at only an approximately 1.06:1 basis.

[3]

Regarding the second ground of appeal, t
he
    trial judge did not have the benefit of the Supreme Court of Canadas decision
    in
R. v. Summers
(2014), 301
    C.C.C. (3d) 471 (S.C.C.) when he reached this conclusion on pre-sentence
    custody credit. On appeal
the Crown appropriately concedes that Mr.
    Mawuts sentence should be further reduced by
7
    ½
months to account for enhanced pre-sentence custody. Accordingly, this
    ground of appeal is allowed.

[4]

As to the first ground of appeal, Mr.
    Mawut points out that he was 19 years old at the time of the offences and 21 at
    the time of sentencing. His longest previous adult sentence was 54 days. He
    submits that in these circumstances the trial judge erred by failing to give
    appropriate effect to the jump principle. Relying on
R. v. Borde
, [2003] O.J. No. 354 (Ont. C.A.), at para. 36, he
    argues that as a youthful offender his first penitentiary sentence should be as
    short as possible. He says that a jump to 9 ½ years is excessive, and would
    crush his prospects for rehabilitation.

[5]

We disagree. The trial judge properly considered Mr. Mawuts youth as
    well as his painful and traumatic background in detail and properly concluded
    they were mitigating factors. Based on the record, he also appropriately concluded
    that the appellants prospects for rehabilitation are grim. Finally, we note
    that the jump principle he relies on may have little application where, as
    here, the severity of Mr. Mawuts offences shows a dramatic increase in
    violence and seriousness:
Borde
, at para. 39.

[6]

The jump principle described by this court in
Borde
, and
    specifically para. 36, was brought to the attention of the trial judge by Mr.
    Mawuts trial counsel. Moreover, when the trial judges reasons are considered
    as a whole it is clear that he was aware of the appropriate principles to
    consider and apply to this offender and the offences for which he was being
    sentenced. It was clear that a substantial penitentiary sentence was required.
    The minimum sentence on the robbery with a firearm was 5 years. The range
    suggested by Crown and defence counsel was between 6 and 10 years.

[7]

The appellant committed a planned and
    gratuitously vicious armed robbery of two people in a Shoppers Drug Mart. There
    was no provocation or resistance to him, yet he pistol whipped both the cashier
    and a patron. The cashier suffered serious permanent physical injuries as well
    as psychological harm; the patron was pistol whipped in front of his wife and
    child, traumatizing them all. At the time of the offences, Mr. Mawut was
    subject to three court orders prohibiting him from possessing any weapons and
    had only been released from jail 14 days previously.

[8]

Mr. Mawuts criminal conduct was a serious escalation in violence and it
    required a much more severe sentence than had been imposed upon the appellant
    previously. That sentence imposed was justified for purposes of general deterrence
    and denunciation as well as specific deterrence. Despite his youth, Mr. Mawut
    revealed himself as a dangerous person and a lengthy sentence was appropriate.

[9]

Except where a sentencing judge makes an error of law or an error in
    principle that has an impact on the sentence, an appellate court may not vary
    the sentence unless it is demonstrably unfit:
R. v. Lacasse
, [2015] 3
    S.C.R. 1089, at para. 11. Other than the conceded error in connection with
    pre-sentence custody, Mr. Mawut has failed to establish that the sentencing
    judge in this case made any other error in law or in principle or that the
    sentence is demonstrably unfit.

[10]

Leave to appeal is granted and the appeal is allowed
    in part. The overall sentence of 9 ½ years should be reduced by a further 7 ½
    months for a total, net sentence of 7 years, 4 ½ months.

H.S.
    LaForme J.A.

"S.E. Pepall
    J.A."

G. Pardu J.A.


