Criminal Law

Offender turns life around, OCA grants sentence appeal

In a case Toronto criminal lawyer Jill Presser argued pro bono as duty counsel, the Ontario Court of Appeal has reduced the custodial portion of a man’s prison sentence for robbery to time served because he made significant progress towards rehabilitation.

In writing for the court, Justice Robert J. Sharpe said R. v. Ghadban, 2015 ONCA 760, is “a very unusual case” involving an offender who has taken “steps to turn his life around” and that ignoring the efforts of the appellant “would run contrary to sound sentencing policy and the interests of justice.”

Mahmoud Ghadban 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.

While he had initially appealed both the conviction and sentence, he abandoned his conviction appeal at the outset of oral argument for the appeal matter, indicating he wished to accept responsibility for the offence and to express his remorse, say the court files.

His sentence appeal was based upon fresh evidence showing how Ghadban has made significant progress towards rehabilitation since the sentence was imposed in April 2012. He argued the sentence imposed by the trial judge was no longer fit and should be reduced or stayed because of the fresh evidence.

The trial judge found Ghadban was a party to a home invasion robbery whereby he knew the intended victim, an alleged drug dealer. Ghadban went to the victim’s apartment in the company of two other men who are described in the court files as the “Jamaicans.” Ghadban knocked on the victim’s door, identified himself and thereby induced the victim to open the door. As soon as the victim did so, the Jamaicans forced their way into the apartment.

At that point, Ghadban left and the Jamaicans ransacked the apartment for money. Ghadban was arrested as he waited by the car used by the perpetrators.

The trial judge noted that there was no expression of remorse at the time and that the sentence must be structured to emphasize specific deterrence, that is, to tell the appellant that he must accept responsibility for his actions.

Ghadban was incarcerated at Millhaven Institution for seven weeks and two days following his conviction. At the time, Millhaven was transitioning from an assessment centre to a maximum-security institution so Ghadban was placed in confinement 23 hours per day.

The court extended his bail on April 19, 2013, pending the outcome of his appeal. The matter eventually proceeded as an inmate appeal on Oct. 7 of this year.

Since he was sentenced, Ghadban has the support of his parents and siblings; has become the father of two children, one aged two years and another nine months; and he is also parenting his wife’s older child. He is employed and is the sole financial support of his wife and children. His employer says he is a trusted and productive employee. He has also volunteered for a political campaign and for the United Way, say the court files.

He has accepted responsibility for his crime and hasn’t committed any further offences in the five years since the robbery.

The Court of Appeal noted that it isn’t disputed that the sentence was fit when it was imposed; the question now is whether that sentence should be reduced or stayed.

The court pointed to how it’s well established that if there is fresh evidence to show a change in circumstances after a fit sentence is imposed, an appellate court has discretion to act on it "pursuant to the obligation to assess the fitness of the sentence at the time when the appeal is heard.”

The court emphasized that the robbery is a serious offence that ordinarily would call for more than seven weeks' imprisonment.

“On the other hand, we are dealing with a case in which, however inadvertently, the criminal process and the sanction that was imposed have actually worked. The two sentencing objectives emphasized by the trial judge, specific deterrence and rehabilitation, have now been satisfied,” Sharpe wrote.

“The only justification for requiring this offender to return to prison at this point would be to satisfy the need for general deterrence and denunciation. In my view, any gain in general deterrence would be minimal and would be offset by the negative effect on the appellant’s ongoing rehabilitation.”

The court granted the appeal and reduced the custodial portion of the sentence to time served.

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