DATE: 20050704
DOCKETS: C36302 and C36437
COURT OF APPEAL FOR ONTARIO
LASKIN, BLAIR and LANG JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Alexander Hrybinski for the respondent
Respondent
- and -
DALE KIM
Joseph Wilkinson for the appellant
(Applicant) Appellant
Dale Kim
- and -
MICHAEL POCHAY
A. Michael Stein
for the appellant
(Applicant) Appellant
Michael Pochay
Heard: April 6 and 7, 2005
On appeal from the convictions entered on August 16, 2000 by Justice Eugene Ewaschuk of the Superior Court of Justice, sitting with a jury, and from the sentences imposed by Ewaschuk J. on September 26, 2000.
LANG J.A.:
[1] The appellants were tried together by Ewaschuk J., sitting with a jury. They were convicted of multiple offences arising out of a series of robberies. In addition to the two years of pre-trial custody served by each of the appellants, Dale Kim was sentenced to eight years in custody and Michael Pochay to six years. The appellants allege errors in the charge to the jury, errors in the admission of certain evidence, and an error in the pre‑trial refusal to sever Pochay’s trial. They also seek leave to appeal their sentences.
Facts
[2] Both appellants were alleged to have been part of a general conspiracy to rob commercial establishments, including banks and jewellery stores. Felix Parum, who led the planning of the robberies, participated in every robbery along with one or two members of his group, which was said to include both appellants. A farm property they called the “Palace” served as a frequent meeting place for the group. The Palace, which also functioned as a marijuana grow operation, played a role in certain of the charges against Kim.
[3] Originally, Felix and his brother Joseph Parum were to be tried jointly with the appellants. After severance applications were denied, Felix and Joseph Parum pleaded guilty. Kim was convicted on the general conspiracy and for his active participation in the second of two robberies of Humbertown Jewellers, for his participation in counting the proceeds of the Royal Trust robbery, on a charge of threatening and on other related charges. Pochay was acquitted of the Royal Trust robbery, but convicted for his role in conspiring to rob an armoured truck at Pearson International Airport (“Pearson”) and offences related to that planned robbery, a robbery that never occurred.
[4] Maureen Tobin, Felix Parum’s estranged common law spouse, was the main Crown witness. In exchange for her testimony, the Crown withdrew an outstanding charge against Tobin. Ron Norman and Steve Barron, also called by the Crown, were co‑conspirators who provided the police with video statements implicating the appellants. At trial, both recanted their statements to the extent that they implicated the appellants. When the police executed a DNA warrant, they were able to match Kim’s blood with blood found on the inside of the Humbertown getaway car.
[5] Phillip Crocker, who was not part of the robbery conspiracy, lived at the Palace where he tended the marijuana. In Kim’s presence, Crocker announced that he wanted some marijuana to sell, and prepared to take a bag. In response, Kim placed two knives on a table and challenged Crocker to choose one. As a result of this incident, Kim was charged with and convicted of the offences of possession of weapons for a purpose dangerous to the public peace and with uttering threats against Crocker.
[6] The Crown’s theory was that Pochay was the inside man for the proposed, but unexecuted, robbery at Pearson. Pochay, an airplane mechanic, worked for a time at Pearson and afterwards retained his Pearson security pass. The Crown alleged that Pochay participated in preparatory steps for the robbery, including a practice detonation of a crude explosive device against a road grader. Pochay was convicted on the count of general conspiracy to rob, on the specific conspiracy relating to the unexecuted Pearson robbery, and on two counts relating to the practice detonation of explosives.
Issues
[7] The appellants pursued numerous issues on their appeals, including alleged errors in the trial judge’s charge to the jury, and errors with respect to the admission of evidence and pre-trial rulings. The appellants also allege the trial judge erred in the sentences imposed. I will deal first with the errors alleged by Kim, most of which are also alleged by Pochay. I will then consider the balance of Pochay’s appeal.
Analysis
The Charge to the Jury
1. The Standard of Proof and the Presumption of Innocence
[8] Credibility was a central issue at trial. The appellants gave evidence and denied their involvement in the conspiracies. Their evidence was contradicted by Tobin and by the police statements of Norman and Barron.
[9] Both appellants argue that the trial judge instructed the jury to engage in a credibility contest and to engage in a two-step fact-finding process, a process rejected by this court in R. v. Miller (1992), 68 C.C.C. (3d) 317. In addition, the appellants argue that the trial judge did not properly instruct the jury on reasonable doubt because the trial judge did not explicitly tell the jury that they did not have to choose between the defence version of events and the Crown version.
[10] From the instructions given by the trial judge, there is no danger that the jury would have concluded that they simply had to decide which side to believe. The trial judge clearly told the jury that “you are not compelled to choose between the evidence favouring the Crown and the evidence favouring the accused on essential matters”. Further, the “two-fold” approach espoused by the trial judge, when viewed in the context of the entire charge, did not amount to a Miller error; it did not encourage the jury to divide the evidence into two groups – that favouring the Crown and that favouring the accused. Rather, on a number of separate occasions, the trial judge told the jury to consider the evidence as a whole. While it would have been preferable if the trial judge had not added additional remarks to the usual R. v. W.D. instruction, the jury would not have been misled by the instruction as given.
[11] Further, neither appellant objected to this aspect of the charge at trial. While the failure to object is not determinative, it is an indication that counsel did not consider these issues to be matters of significance.
[12] I am satisfied that the trial judge adequately instructed the jury on the standard of proof and the presumption of innocence.
2. The Norman and Barron Statements
[13] Kim and Pochay also submitted that the trial judge should have left room for a “middle ground” where the jury was left with a reasonable doubt about whether the videotaped statements or the trial testimony were true. Norman’s police statement was never introduced into evidence and was not before the jury. Accordingly, I consider this ground only with respect to the Barron statement.
[14] While it would have been preferable if the trial judge had explicitly instructed the jury that they could choose to believe neither of Barron’s statements, the trial judge’s caution was sufficient in the circumstances of this case. In that caution, the trial judge did tell the jury that the witness had perjured himself either in that statement or at trial or in both; that the videotaped police statement was deficient because there had been no opportunity to cross-examine Barron; that the jury should be very cautious before accepting the videotaped police statement and rejecting the trial evidence; and that it would be unsafe to accept the videotaped statement in the absence of confirmatory evidence.
[15] The appellants also argue that the trial judge exacerbated any error by making a derisive comment to the jury after Barron consulted his lawyer in the midst of his cross‑examination. After that consultation, Barron referred to his earlier videotaped statement as “incorrect”, rather than as a lie. The trial judge responded by questioning Barron, asking whether that meant Barron was telling the truth in the statement or he was lying. At the end of the exchange, the trial judge characterized Barron’s testimony that his previous statement was “incorrect” as actually meaning that it was a “deliberate lie”. This, argue the appellants, would have reinforced for the jury that they had the stark option of accepting or rejecting one or other of Barron’s competing versions of events.
[16] The Crown conceded that the trial judge’s interventions with the witness were unnecessary and, I would add, ought not to have been made. However, they did not affect the substance of Barron’s evidence. Barron took the position throughout his trial testimony that he lied in his videotaped police statement in order to give the police what they wanted. In this circumstance, I would not give effect to this ground of appeal.
3. The Charge on the Co-Conspirators’ Guilty Pleas
[17] Evidence was led at trial that the Parum brothers, Norman and Barron all pleaded guilty to charges arising from the robberies. The trial judge failed to give the jury a “clear and sharp” limiting instruction to disregard that evidence in arriving at its verdicts. See R. v. Paquet (1999), 140 C.C.C. (3d) 283 (N.B.C.A.); R. v. Caron (1971), 9 C.C.C. (2d) 447 (Ont. C.A.).
[18] The failure to provide such a limiting instruction is not fatal, however, if it is shown there is no prejudice to the accused: see R. v. Simpson and Ochs (1988), 38 C.C.C. (3d) 481 at 492-94 (S.C.C.). In this case, the co-conspirators’ guilty pleas were in no way inconsistent with the appellants’ defence. Indeed, the appellants acknowledged that Felix Parum was part of a conspiracy to rob, but disclaimed their own involvement so that, on the facts of this case, the jury would not have imputed guilt to the appellants from the guilty pleas of their co-conspirators.
[19] Further, the appellants did not seek this particular instruction in the pre-charge conference and did not object to its absence from the charge. I would not give effect to this ground of appeal.
4. Co-Conspirators’ Exception to the Hearsay Rule
[20] Maureen Tobin testified that after the Humbertown robbery, in Kim’s presence, she heard Felix Parum say that Kim hurt his hand trying to smash a jewellery display case. She said this statement was made while Parum, Kim, and others, were sorting through the jewellery stolen in that robbery. Kim argues that this significant piece of evidence, if accepted, potentially implicated him in both the conspiracy and the robbery, and that the trial judge erred in failing to tell the jury that mere narrative statements by co-conspirators were not admissible against the appellant even if the statements were made during the continuance of the conspiracy.
[21] The admissibility of this particular statement will be dealt with under the next ground of appeal. Generally, with respect to this ground, the trial judge explicitly told the jury, “the admissions of the alleged co-conspirators made after a particular robbery are not admissible to prove the existence of the conspiracy. They are not admissible. That’s important.”
[22] Further, while it is not determinative, the appellant did not object to the trial judge’s jury instruction on this point. I would not give effect to this ground of appeal.
5. Adoption by Silence
[23] This issue relates to the same statement made by Felix Parum about Kim’s alleged post-Humbertown injury and its cause. The trial judge instructed the jury:
Where a statement is made in the presence of a person about the person it is open to you to infer that the person adopts the truth of what was said about him in the absence of denial as to its truth. It is not necessary for you to draw this conclusion, but it is open for you to do so.
[24] Mere silence, with nothing more, is not admissible to incriminate the person in whose presence it was made. Thus, this instruction, taken in isolation, is in error because the trial judge did not go on to tell the jury that Felix Parum’s statement would be admissible for its truth only if the appellant remained silent in circumstances where a denial would be reasonably expected if the appellant were not responsible. R. v. Warner (1994), 94 C.C.C. (3d) 540 at 549 (Ont. C.A.); R. v. Baron (1976), 31 C.C.C. (2d) 525 (Ont. C.A.) 539-540.
[25] In the particular circumstances of this case, however, I am not satisfied that the trial judge’s instruction to the jury amounted to an error. I say this for two reasons. First, the trial judge was clearly correct when he told the jury that it was up to them, in the circumstances, as to whether they would infer that the appellant adopted the statement. While it would have been preferable had the trial judge continued this instruction to tell the jury to consider whether the appellant would reasonably be expected to have responded to the statement, the jury would have been aware that they were to apply common sense and consider the statement in all the circumstances. Since the appellant denied that he was present at any time during an examination of the proceeds of the robbery, and hence denied any such statement, the jury would have been well aware that the appellant denied adopting the statement.
[26] Second, the significant issue in this case was not so much the statement itself, but the circumstances in which it was said to have been made. Those circumstances involved the appellant and a co-conspirator allegedly sorting through jewellery taken during the Humbertown robbery that day. If the jury accepted Tobin’s evidence that Kim was sorting through the proceeds of the robbery, the statement about the cause of the appellant’s injury was no more than a small part of that incriminating scenario. The real issue for the jury was whether this meeting occurred.
[27] In either event, in the circumstances of this case, Kim would not have been prejudiced by the trial judge’s instruction on this issue.
6. Vetrovec Caution
[28] Both appellants argue that the trial judge failed to give a Vetrovec caution with regard to Tobin where one was clearly called for because she had reason to lie, had a history of lying, and had participated in helping Felix Parum to avoid detection.
[29] However, in the pre-charge conference, the trial judge canvassed with the defence his intention to give a co-accomplice warning rather than a Vetrovec caution with respect to Maureen Tobin’s evidence. The appellants did not object either then or after the charge to the jury. The decision not to object may have been a strategic choice on the part of the appellants.
[30] Further, the trial judge did caution the jury about Tobin’s motivation to lie, and instructed the jury to be cautious with respect to her evidence and to look for other confirmatory evidence. The charge on this point was appropriate, proper, and within the trial judge’s discretion.
7. Kim’s Criminal Record
[31] Kim argues that, although the trial judge disallowed cross-examination on his convictions of wearing a disguise with intent and use of a firearm, he erred in permitting the Crown to cross-examine him on two prior robbery convictions. During the Corbett application, the trial judge noted that the appellant had attacked the character of more than one of the witnesses. In that circumstance, and given the fact that robbery is considered an offence of dishonesty, the appellant’s primary interest in excluding the firearm and disguise convictions, the limiting instruction given on the limited use to be made of the robbery convictions, and the broad discretion of the trial judge on this issue, there is no reversible error.
8. The Stabbing Evidence
[32] The appellant, Kim, argues that the trial judge erred in allowing Philip Crocker to testify that Kim told him that he had stabbed someone in the past. This statement was admissible to establish Kim’s intention when he allegedly placed two knives in front of Crocker and told him to pick up one. Crocker testified that, having heard from Kim in an earlier conversation that he had stabbed another man, Crocker understood Kim’s conduct to be threatening. He further testified that Kim was very serious and was staring right at him with no emotion. When Kim took this action, Crocker left the bag and went to his room. The Crown argued that, if the jury accepted Crocker’s testimony as to what Kim said, then they were entitled to draw the reasonable inference that Kim was prepared to use the knives against Crocker that day.
[33] In the course of the voir dire on the admissibility of this evidence, the trial judge indicated that the evidence not only had to be probative of an issue at trial, but also that its probative value had to exceed its prejudicial effect. During submissions on this issue, Kim’s lawyer appeared to concede that the evidence had probative value, but argued that this value was outweighed by its prejudicial effect.
[34] At the time the trial judge gave his ruling, he was apparently under the impression that Kim was charged with assaulting Crocker, as opposed to threatening Crocker. This mistaken impression was apparently shared by both Crown and defence counsel.
[35] While the trial judge characterized the admissibility of the evidence as relevant to Crocker’s state of mind, Crocker’s state of mind was not relevant on the threatening charge. However, Kim’s state of mind was relevant as to his intention when he put the knives before Crocker. Accordingly, the evidence was admissible for the purpose of establishing that Kim intended to threaten Crocker. Further, by the time of the jury charge, the trial judge and counsel understood that this count related to a threat, and not to an assault. The trial judge then gave the jury an appropriate limiting instruction with respect to this evidence.
[36] In the end, the trial judge did not err in admitting Kim’s statement to Crocker.
9. The DNA Warrant
[37] During pre-trial proceedings, Kim applied to quash the DNA search warrant for a sample of his blood on the basis that there were no reasonable grounds linking him to the blood in the car or providing grounds to believe that a sample of his blood would provide evidence either exculpating or incriminating him.
[38] The trial judge was satisfied that it was open to the issuing judge to conclude that there were reasonable grounds to draw the inference that Kim bled from his swollen hand and, thus, that he was a reasonable potential donor of the blood found in the car. While Tobin’s statement did not explicitly say that everyone had been cut, including Kim, the trial judge noted that conclusion was implicit in her response, particularly when taken together with her evidence that Kim injured his hand trying to smash a glass display case. The trial judge applied the correct standard in his review of the DNA warrant.
10. Kim’s Sentence Appeal
[39] The appellant argues that the trial judge erred in imposing an eight-year sentence in addition to Kim’s two years of pre-trial custody. In determining sentence, the trial judge made no error in principle, and the sentence was within the appropriate range given, among other circumstances, that the offences were extremely serious and Kim had prior convictions for robberies, which involved the same co-conspirator, Felix Parum. Although I would grant leave to appeal sentence, I would dismiss Kim’s appeal on that issue. I will address Pochay’s sentence appeal separately.
[40] I turn now to consider Pochay’s additional grounds of appeal.
11. Pochay’s Right to Counsel
[41] This issue arose because the evidence of Pochay and that of the police was diametrically opposed. Pochay acknowledged that the police officers gave him his right to counsel on three separate occasions, but also testified that the police denied him the opportunity to exercise that right. Five police officers with whom Pochay came into contact that night testified that Pochay declined to exercise his right to counsel.
[42] In support of his argument, Pochay submits that the trial judge failed to discuss in his reasons the “disappearance” of the original Record of Arrest, which would have referenced whether he was given his right to counsel. However, the computer copy of the arrest record was introduced and made an exhibit during the testimony of one of the police officers. Moreover, during the evidence of another officer, Pochay’s trial counsel said that he would speak with Crown counsel about the location of the original record. At no time was the issue of the original record again raised before the trial judge. In those circumstances, the appellant cannot take issue with the trial judge’s failure to avert to that record in his ruling.
[43] Further, during submissions on this issue, the trial judge noted that Pochay testified that signs at the police station stated that he was being video and audiotaped, while two staff police sergeants testified that the booking area was not then equipped with videotape machines. Also, the trial judge noted that Pochay gave no specifics about his allegedly frustrated attempt to exercise his right to counsel.
[44] On the evidence given on this issue, it was open to the trial judge to reject Pochay’s evidence and to accept the evidence of the police officers. Pochay did not meet the onus on him to prove a violation of his s. 10(b) Charter right on a balance of probabilities.
[45] I see no reason to interfere with the trial judge’s findings on this issue.
12. The Admissibility of Pochay’s Statements
[46] Pochay argues that the Crown failed to establish beyond a reasonable doubt that the statement he allegedly gave at the police station was voluntary. Unfortunately, the police officers did not tape any of their interactions with Pochay at the police station. They say Pochay refused to allow any taping. It would have been prudent for the police officers to have encouraged the taping of the statement or, at least, to have taped Pochay’s refusal to agree to taping. In the absence of such a taping, the evidence about the events in the interview room requires careful consideration because there was a credibility contest between Pochay and the police officers.
[47] Pochay testified that the officers’ version of his statement was fabricated and that the investigating officer, Detective Yarenko, assaulted him as soon as he entered the interview room. He further testified that the assault continued over the next two to six hours with four police officers striking him at least twenty, and perhaps as many as 100, times. Pochay sustained injuries that night, including a punctured left eardrum, a bruised eye, and several bruises to his arms and in the area above his pelvis. Pochay also raised concerns about the police Use of Force report, who made it, and the date it was filed.
[48] Detectives Yarenko and Lacey testified as to the causes of those injuries and the circumstances of the Use of Force report. They said that, subsequent to taking Pochay’s statement, they re-entered the interview room to ask him further questions. They said that, shortly afterwards, Pochay charged Lacey. Yarenko and Lacey each gave somewhat different versions of the altercation that followed. Two other officers, Quan and Monaghan, testified that when they heard the altercation, they pushed into the interview room and found Yarenko applying force to Pochay to remove him from Lacey. Quan and Monaghan testified that they helped in the ensuing efforts to handcuff Pochay.
[49] The appellant argues that the trial judge provided insufficient reasons for accepting the police officers’ version of events over that of the appellant and in failing to reconcile the numerous inconsistencies between the officers’ statements. See R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.).
[50] In his ruling, the trial judge correctly set out the applicable test, including the onus on the Crown to prove the voluntariness of the statement beyond a reasonable doubt. The trial judge recognized that it was not open to him to find the statement voluntary unless he rejected the appellant’s version of the events; he found the appellant’s version did not raise a reasonable doubt as to voluntariness; and he found the police version to be credible and reliable.
[51] The trial judge then reviewed Pochay’s evidence and rejected it as untrue, characterizing Pochay’s version of the altercation as one of continuous assault on and off over several hours, involving twenty to 100 blows. In rejecting the appellant’s evidence and accepting that of the police, the trial judge found the appellant’s evidence to be incredible for three reasons. First, he found it “most unlikely” that Det. Yarenko would begin an interview by assaulting a suspect whom he believed to be cooperative. Second, the trial judge found that, from the appellant’s description of the assault, the appellant would have been left “a beaten pulp” instead of receiving the injuries described. Third, the trial judge found the discrepancies in the information given to two of the officers to be “minor” and the accused “prone to prevarication and hyperbole”. Finally, the trial judge concluded that the appellant was an unreliable witness who testified falsely. With respect to the police evidence, the trial judge said that he found that evidence to be “credible and reliable”.
[52] The trial judge did not analyze the discrepancies between the evidence of Detectives Yarenko and Lacey. At the end of the day, however, those discrepancies were not significant. They related only to details regarding the positions of the combatants during the altercation, when Pochay was on his feet and when he was not, and whether Pochay made one or two aggressive charges against Lacey. On the main points, the evidence of the two detectives was consistent: Pochay initiated the assault; he kicked Lacey and knocked him and his chair; Yarenko tried to remove Pochay from Lacey and hit him hard several times on the left side of his face while doing so. The trial judge reviewed the evidence of Quan and Monaghan, which confirmed the brevity of the altercation and the essentials of the versions given by Yarenko and Lacey.
[53] While it would have been helpful if the trial judge had said why he considered the discrepancies in the officers’ evidence to be immaterial, it was not incumbent on him to review every piece of evidence. Reading his ruling as a whole, it is clear that the trial judge was alive to the different versions of the altercation and not only rejected the appellant’s version, but accepted that of the officers.
[54] The appellant’s counsel referred us to other case law about the same officers and the same allegation by an accused: see R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (S.C.C.). Although superficially troubling, these references can have no evidentiary value on appeal unless the subject of a fresh evidence application and there was none here.
[55] The trial judge applied the correct test and was entitled to come to the conclusion that the Crown had satisfied the onus on it to prove the voluntariness of the statement. There are no grounds for interfering with his conclusion.
13. The Specific Conspiracy Foundation for the General Conspiracy
[56] Pochay argues that the trial judge erred because he effectively instructed the jury that a determination of guilt on the “specific” Pearson robbery was sufficient to ground a finding of guilt on the “general” conspiracy to commit robberies without giving the jury sufficient detail of the general conspiracy.
[57] In his charge to the jury, the trial judge made it clear that it was a precondition to convictions on both the general and specific conspiracies for the jury to find there were two separate agreements, each with a different object. As well, the trial judge was entitled to tell the jury that the evidence common to both conspiracies could be used to inform the charges on both conspiracies.
[58] In his charge on the general conspiracy, the trial judge said:
In other words, so long as one individual implicitly agreed to assist Felix Parum in the commission of a robbery in count 1 knowing of the general nature of the broad conspiracy that Felix Parum was in the business of committing armed robberies, not alone but with others. . . , in that case it is open to you to be satisfied that the conspiracy charged in count 1 has been proven beyond a reasonable doubt.
[59] The trial judge then charged the jury separately on the requirements for a conviction on the specific Pearson conspiracy. The trial judge did not err in also telling the jury that they could use evidence of the specific conspiracy as evidence also going to Pochay’s involvement in the general conspiracy.
[60] Apart from the specific conspiracy, there was evidence upon which a jury could convict this appellant on the general conspiracy. That evidence included the appellant’s association with Felix Parum, his presence at the Palace, evidence about his assistance to Felix Parum in obtaining guns, and his “scoping” locations for other potential robberies.
[61] I see no reversible error in the trial judge’s instruction on this issue.
14. Severance
[62] Only Pochay pursued the appeal on the issue of severance. Before trial, the trial judge dismissed the application of both the appellants and Joseph Parum to sever their trials from that of Felix Parum on the basis that the accused had “not established that it is in the best interest of justice to sever any of them from the other accused.”
[63] In accordance with the right given by the trial judge to renew their application, the accused informally sought severance at the conclusion of the Crown’s case.
[64] While the trial judge gave no separate reasons to dismiss the severance motion at that point, his reasons can be discerned from his exchanges with counsel. Counsel for Pochay joined in Kim’s application, but made no submissions. While Kim’s trial counsel acknowledged there was no animosity between Kim and Pochay, he also argued there were no direct connections between the two. He raised a concern about cumulative prejudice resulting from evidence that did not bear on one or the other of the accused. The Crown submitted that both appellants were connected to the general conspiracy through Felix Parum and that there was substantial overlap in the evidence against the two appellants.
[65] The trial judge recognized that, normally, co-conspirators are tried together. It is clear from reading the record as a whole that he found sufficient connection between the two accused to try them together. That decision is entitled to deference.
[66] There is no basis on which to conclude that a miscarriage of justice resulted from the trial judge’s decision not to grant a severance: see R. v. McNamara (1981), 56 C.C.C. (2d) 193 at 265 (Ont. C.A.).
15. The Pochay Sentence Appeal
[67] Pochay was sentenced to eight years and seven years for the two conspiracies to commit robbery, and a further two years for the weapons offences and detonating the homemade pipe bomb. After credit for two years of pre-trial custody (equivalent to four), this resulted in a total sentence of imprisonment of six years. This reflected a global sentence of ten years.
[68] While these offences were very serious and would have been dangerous in execution, Pochay was a first time offender without a criminal record and with good prospects of rehabilitation. His personal circumstances and involvement were quite different from other co-conspirators, and from Kim, who was a repeat offender with a lengthy criminal record and a reduced prospect of rehabilitation. Thus, I conclude that the global sentence of ten years was outside the range. I would grant leave to appeal sentence and would vary Pochay’s sentence to six years concurrent on the general conspiracy and specific conspiracy counts, less four years credit for time served. This results in a global sentence of eight years. I would not otherwise interfere with the sentence.
Conclusion
[69] In the result, I would dismiss the conviction appeals, give leave to appeal both sentences, and dismiss Kim’s sentence appeal, but would allow Pochay’s sentence appeal by reducing his sentence from six years to four years imprisonment on the conspiracies.
Released: July 4, 2005
JIL
Signed: “S.E.Lang J.A.”
“I agree: J.I. Laskin J.A.”
“I agree: R.A. Blair”