C42739
COURT OF APPEAL FOR ONTARIO
RE:
HER MAJESTY THE QUEEN (Respondent) –and- MATTHEW HECHAVARRIA (Appellant)
BEFORE:
LABROSSE, MOLDAVER AND MACFARLAND JJ.A.
COUNSEL:
P. Andras Schreck and Jennifer A.Y. Trehearne
for the appellant
Alison Wheeler
for the respondent
HEARD AND RELEASED ORALLY:
January 20, 2006
On appeal from the conviction entered on November 12, 2004 and the sentence imposed January 13, 2005 by Justice Ronald G. Thomas of the Superior Court of Justice.
E N D O R S E M E N T
1The appellant appeals his conviction on three counts of robbery and two counts of using a firearm while committing the robberies.
2It was alleged that the appellant and his accomplice robbed the three complainants while driving around in search for money and drugs. The case depended entirely on the testimony of the complainants with no confirmatory evidence.
3There were numerous inconsistencies in the evidence of the three complainants. They included inconsistencies about: the description of a knife and its use, the attendance of an ATM machine, a meeting to buy a bicycle, an attempt to escape, assaults on the complainants, the description of the gun used in the robberies, and a drug deal.
4It was clear that the complainants had lied to the police in their descriptions of the robberies.
5The complainants were extensively cross-examined on all issues. The appellant and his accomplice did not testify.
6It was also alleged that there was an opportunity of collusion among the three complainants before and during the trial.
7While not perfect, the reasons address the issues raised in the trial. The reasons demonstrate that the trial judge fully understood the defence position, that the inconsistencies in the complainants’ evidence and the opportunities for collusion among them raised a reasonable doubt. He addressed both aspects of the theory of the defence.
8The trial judge was of the view that the inconsistencies were essentially immaterial on essential matters. In other words, they did not go to the core issues of whether the appellant used a gun and demanded money from the complainants.
9On the issue of potential collusion, the trial judge was not required to refer to every aspect of the evidence that might suggest collusion. He gave some reasons for his conclusion, and he was entitled to believe the complainants’ denials while being clear that he did not accept their evidence globally.
10The trial judge heard the witnesses and was in the best position to make an assessment of their credibility. He was entitled to accept their explanations for their initial lies to the police and to find that, on essential matters, they were telling the truth in their evidence at trial.
11The trial judge’s reasons leave the appellant in no doubt as to why he was convicted and are sufficient to permit meaningful appellate review.
The Sentence Appeal
12The Crown appeals the sentence imposed of one year and ten months’ imprisonment on the basis that the sentence on Count Five was illegal in that it was made concurrent to other sentences imposed, contrary to ss. 85 (3) and (4) of the Criminal Code.
13This is conceded.
14The Crown submitted that the sentence on the robberies was fit and that one year consecutive had to be imposed for each weapon offence for a total of two years and ten months.
15The defence submits that we should consider the totality principle and accordingly impose a total sentence of two years and one month. Having considered the defence argument, we are not persuaded that the sentence on the robberies should be reduced. The result would be to dilute the minimum sentence provided for gun offences.
16Accordingly, the appeal against conviction is dismissed. The appeal against sentence is allowed. The total sentence is two years and ten months.