R. v. Moolla
The trial judge properly considered the appellant's Asperger's Syndrome and credibility findings are entitled to deference absent fresh evidence or palpable and overriding error; the sentence of 3.5 years is fit; and, applying ss.686(1)(b)(i) and 686(3) and Kienapple principles, the Court corrected the trial judge's...
Source-derived case information.
- Citation
- 2024 ONCA 327
- Parties
- Respondent: His Majesty the King; Appellant: Mikail Moolla
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 2 May 2024
- Procedural Posture
- Criminal Appeal / Appeal From Conviction and Sentence (court of Appeal)
- Outcome
- Appeal dismissed in part and allowed in part: conviction appeal dismissed; sentence affirmed; trial error corrected under Criminal Code and Kienapple doctrine resulting in quash of conviction on one count and entry of conviction and confirmation of sentence on another count.
- Legal Topics
- Sexual Luring of a Child, Credibility and Mental Condition (asperger's Syndrome), Sentencing, Kienapple Doctrine (conditional Stay), Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
His Majesty the King
Respondent
Mikail Moolla
Appellant
Procedural Posture
Criminal Appeal / Appeal From Conviction and Sentence (court of Appeal)
Legal Issues
- 1 Whether the appellant's Asperger's Syndrome undermined his credibility such that the conviction should be set aside
- 2 Whether the sentence of 3.5 years was unfit or otherwise erroneous
- 3 Application of the Kienapple rule and correct disposition of stayed/convicted counts
Ratio Decidendi
The trial judge properly considered the appellant's Asperger's Syndrome and credibility findings are entitled to deference absent fresh evidence or palpable and overriding error; the sentence of 3.5 years is fit; and, applying ss.686(1)(b)(i) and 686(3) and Kienapple principles, the Court corrected the trial judge's misapplication by quashing conviction on count 3 with a conditional stay, lifting the stay on count 4 and entering a conviction on count 4 and confirming the sentence on that count.
Court Disposition
Appeal dismissed in part and allowed in part: conviction appeal dismissed; sentence affirmed; trial error corrected under Criminal Code and Kienapple doctrine resulting in quash of conviction on one count and entry of conviction and confirmation of sentence on another count.
Orders
- Conviction appeal dismissed
- Sentence appeal dismissed; sentence of 3.5 years confirmed on count 4
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Moolla Collection Decisions of the Court of Appeal Date 2024-05-02 Neutral citation 2024 ONCA 327 Docket numbers COA-22-CR-0227 Judges Benotto, Mary Lou; Coroza, Steve A.; Dawe, Jonathan Subject Criminal Decision Content COURT OF APPEAL FOR ONTARIO CITATION: R. v. Moolla, 2024 ONCA 327 DATE: 20240502 DOCKET: COA-22-CR-0227 Benotto, Coroza and Dawe JJ.A. BETWEEN His Majesty the King Respondent and Mikail Moolla Appellant Mikail Moolla, acting in person Frank Au, for the respondent Heard: April 11, 2024 On appeal from the conviction entered on November 26, 2021 and the sentence imposed on July 29, 2022 by Justice Sandra Martins of the Ontario Court of Justice. REASONS FOR DECISION [1] Mr. Moolla sought to have this hearing adjourned because he wanted additional transcripts. In December 2023, assisted by senior duty counsel, all the transcripts that were requested were ordered to be provided. They were. The matter was set down for an appeal hearing on a peremptory basis. We therefore denied the adjournment and proceeded with the appeal. [2] Mr. Moolla was convicted of 4 counts relating to the sexual luring of a child. He was sentenced to 3.5 years. He appeals his conviction arguing that his Asperger’s Syndrome affected how he gave his evidence. The trial judge was aware of his condition, took it into account and indicated that, as a result, very close attention was paid to his testimony. There is no fresh evidence application, and we have no evidence of anything else that he or anyone else could have added to the testimony. The conviction appeal is therefore dismissed. [3] Regarding the sentence appeal, in our view the sentence is fit, and no error has been raised. Indeed, we have been given no reason to interfere with the length of sentence. [4] The Crown raised an issue about the application of the Kienapple conditional stay. At trial, the parties had agreed that count 3 be stayed. Despite the clear intention of the parties, the trial judge stayed count 4 instead. Pursuant to ss. 686(1)(b)(i) and 686(3) of the Criminal Code, we therefore quash the conviction on count 3 and enter a conditional stay on that count, lift the conditional stay on count 4 and enter a conviction on that count, and confirm the sentence passed by the trial court as the sentence on count 4. “M.L. Benotto J.A.” “S. Coroza J.A.” “J. Dawe J.A.”