R. v. Ghadban (M.), (2015) 342 O.A.C. 177 (CA)

• Judge: Sharpe, Hourigan and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 07, 2015
• Jurisdiction: Ontario
• Citations: (2015), 342 O.A.C. 177 (CA);2015 ONCA 760

R. v. Ghadban (M.) (2015), 342 O.A.C. 177 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. NO.017

Her Majesty the Queen (respondent) v. Mahmoud Ghadban (appellant)

(C58474; 2015 ONCA 760)

Indexed As: R. v. Ghadban (M.)

Ontario Court of Appeal

Sharpe, Hourigan and Benotto, JJ.A.

November 9, 2015.

Summary:

The accused was convicted of robbery and conspiracy to commit robbery and sentenced to concurrent sentences of two years' imprisonment and three years' probation on each count. The accused appealed the conviction and applied for leave to appeal the sentence. At the outset of oral argument, he abandoned his conviction appeal. The sentence appeal was based upon fresh evidence indicating that he had made significant progress towards rehabilitation since the sentence was imposed.

The Ontario Court of Appeal dismissed the conviction appeal as abandoned. The court granted leave to appeal sentence and reduced the custodial portion of the sentence to time served. In all other respects, the sentence was maintained.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court (incl. standard of review) - The Ontario Court of Appeal stated that "It is well-established that if there is fresh evidence to show a change of circumstances after a fit sentence was imposed, an appellate court may 'exercise its discretion and act on it pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard' ..." - See paragraph 14.

Criminal Law - Topic 6212

Sentencing - Appeals - Variation of sentence - Considerations - Rehabilitation of accused pending appeal - The accused was convicted of robbery (home invasion) and conspiracy to commit robbery and sentenced to concurrent sentences of two years' imprisonment and three years' probation on each count - The accused served seven weeks and was released on bail pending an appeal - He based his sentence appeal on fresh evidence (i.e., during the five years he was on bail he had made significant steps towards rehabilitation) - The Ontario Court of Appeal held that the sentence imposed at trial was fit - However, having regard to the "unusual significant strides" the accused made awaiting the hearing of his appeal, the court reduced the custodial portion of the sentence to time served - The sentencing objectives of specific deterrence and rehabilitation emphasized by the trial judge had been satisfied - To return the accused to jail would have the effect of sacrificing the principle of rehabilitation for the principles of punishment and deterrence - See paragraphs 13 to 26.

Criminal Law - Topic 6214

Sentencing - Appeals - Variation of sentence - Considerations - Where sentence of trial court has been fully or partially served - [See Criminal Law - Topic 6212 ].

Criminal Law - Topic 6218

Sentencing - Appeals - Variation of sentence - Evidence on appeal (incl. fresh evidence) - [See Criminal Law - Topic 6201 and Criminal Law - Topic 6212 ].

Cases Noticed:

R. v. Johnson (M.M.) (2006), 213 O.A.C. 395 (C.A.), refd to. [para. 14].

R. v. Sipos (J.P.) (2014), 460 N.R. 1; 320 O.A.C. 76; 2014 SCC 47, refd to. [para. 15].

R. v. Porter; R. v. Short (1980), 26 Nfld. & P.E.I.R. 26; 72 A.P.R. 26, refd to. [para. 24].

R. v. Sinclair (T.) et al. (2012), 280 Man.R.(2d) 31; 548 W.A.C. 31; 2012 MBCA 24, refd to. [para. 24].

Counsel:

Mahmoud Ghadban, in person;

Jill Presser, duty counsel;

John Neander, for the respondent.

This appeal was heard on October 7, 2015, before Sharpe, Hourigan and Benotto, JJ.A., of the Ontario Court of Appeal. The following decision was delivered for the court by Sharpe, J.A., on November 9, 2015.