COURT OF APPEAL FOR ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) v. THAVIPHANH THONGDARA (Appellant)
BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.
COUNSEL: Lorne Sabsay for the appellant
Alex Alvaro for the respondent
HEARD: May 25, 2000
On appeal from the conviction imposed by Jennings J. on March 16, 1998 and the sentence imposed on April 14, 1999.
E N D O R S E M E N T
[1] The appellant was convicted of several offences arising out of the invasion of a karaoke bar by a gang led by the appellant. His conviction appeal is limited to the conviction on the charge of attempted murder. He contends that the trial judge misdirected himself on the principles governing the evaluation of eyewitness identification evidence.
[2] The case for the Crown identifying the appellant as the “shooter” was very strong and rested on circumstantial evidence as well as the eyewitness identification of two persons. We see no error in the trial judge’s approach to the eyewitness identification evidence. He was alert to its potential weaknesses but chose to accept it. He was entitled to do so.
[3] The appellant received a total sentence of 18 years. He also served two years pre-trial custody. Counsel for the appellant submits that the three-year consecutive sentence imposed on the extortion charge should have been concurrent to the other sentences resulting in a total sentence of 15 years and not 18 years.
[4] It may well be that the extortion sentence should have been concurrent. We need not come to any conclusion on that issue as we are satisfied that in any event the total sentence imposed on the appellant was well within the appropriate range in the circumstances. It is difficult to imagine a worse case than this and the offender, despite his youth, approaches the worst offender status. A total sentence of 18 years, even taking to account the two years of pre-trial custody, was entirely appropriate.
[5] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the appeal is dismissed.