COURT OF APPEAL FOR ONTARIO

DATE: 2004-06-14

DOCKET: C39874

RE: HER MAJESTY THE QUEEN (Applicant/Appellant) – and – JOHN ANTHONY SBROLLA and MARK HUYNH (a.k.a. Mark Wong, a.k.a. Hu Van Huynh)

BEFORE: ABELLA, MOLDAVER and BORINS, JJ.A.

COUNSEL: Gregory J. Tweney, for the appellant Brian Greenspan and Peter Copeland, for the respondent John Anthony Sbrolla David E. Harris, for the respondent Mark Huynh

HEARD: June 8, 2004

RELEASED ORALLY: June 8, 2004

On appeal from the sentences imposed by Justice G. Gordon Sedgwick of the Superior Court of Justice, sitting without a jury, dated March 21, 2003.

ENDORSEMENT

[1] With respect to Mark Huynh, having regard to the trial judge’s findings as to his degree of complicity and his personal circumstances, we think it was open to the trial judge to impose the sentence he did.

[2] With respect to John Sbrolla, the issue is whether a reformatory sentence was available. While the case is close to the line, we think it was open to the trial judge to conclude that a maximum term in the reformatory was a viable sentencing option.

[3] That said, having regard to the seriousness of the offence and the respondent’s involvement in it, the sentence should have been custodial. However, given the passage of time and the fact that the extensive community service order has been completed, along with the respondent’s personal circumstances as outlined by the trial judge, we would not interfere at this stage.

[4] With respect to the treatment of the criminal organization charge, these are unique circumstances, especially in light of the joint submission of the parties which essentially invited the trial judge to consider the criminal organization offence as a mere aggravating factor. It follows that we do not see this as an appropriate case for setting out the relevant principles of sentencing regarding that charge.

[5] Accordingly, while leave to appeal the sentences is granted, the appeals are dismissed.

“R.S. Abella J.A.”

“M.J. Moldaver J.A.”

“S. Borins J.A.”