COURT OF APPEAL FOR ONTARIO

DATE: 2002-05-10
DOCKET: C27515

RE: Her Majesty the Queen (Respondent) v. Mihn Khuan Mac (Appellant)

BEFORE: Doherty, Charron and MacPherson JJ.A.

COUNSEL:
Greg Lafontaine for the appellant
Susan Magotiaux for the respondent

E N D O R S E M E N T

[1] [1] The appellant was convicted of five counts of possession of instruments adapted and intended to be used to commit forgery, and received a sentence of 11 months followed by one year probation. He appealed conviction and sentence. This court allowed his appeal, directed acquittals on certain counts and ordered a new trial on other counts (2001), 152 C.C.C. (3d) 1. The Supreme Court of Canada granted leave to appeal, reversed the decision of this court and restored the convictions: R. v. Mac, 2002 SCC 24, [2002] S.C.J. No. 26.

[2] [2] This court must now consider the appellant’s sentence appeal.

[3] [3] The appellant had worked in one of several “factories” that mass produced forged credit cards. His exact role in the operation was unclear, although it does not appear that he was in the upper echelons of the organization. He did, however, participate over a protracted period of time in organized criminal activity that involved considerable planning and co-operation among a group of criminals.

[1] [4] The appellant is a first offender, but by no means a youthful offender. The trial judge had relatively little information concerning the appellant’s personal circumstances as the appellant declined to have a pre-sentence report prepared for the assistance of the trial judge. The fresh evidence put before this court offers some limited additional information concerning the appellant’s background.

[2] [5] The trial judge gave careful consideration to the applicable principles of sentencing and other sentences imposed in similar cases. She concluded that a term of imprisonment was necessary. She also concluded that a conditional sentence was not appropriate. In reaching this latter conclusion she relied primarily on the fact that the appellant had breached one of the terms of his bail while awaiting trial.

[3] [6] We can find no error in principle in the sentence imposed by the trial judge. Nor can we say that the sentence was demonstrably unfit.

[4] [7] In the normal course, we would not interfere with the sentence imposed by the trial judge. However, the appellant has been on bail pending appeal for almost five years and has complied with the terms of his release. While those terms cannot be described as arduous, he is entitled to some credit for that prolonged limitation on his liberty. We would vary the period of incarceration from eleven months to six months. We would not interfere with the probation terms.

[5] [8] Consequently, the appeal is allowed and the sentence is varied by reducing the term of incarceration to six months concurrent on each count to be followed by probation for one year. The appellant was not required to surrender into custody pending the determination of his sentence appeal. Arrangements should be made for his surrender forthwith. If necessary, the Crown may seek a warrant for the appellant’s arrest.

“Doherty J.A.”

“Louise Charron J.A.”

“J.C. MacPherson J.A.”