R. v. Chen, 2015 ONCA 144

ENDORSEMENT

1The trial judge indicated that the appropriate sentence in relation to Mr. Kwok was 39 months and we agree. He then considered the fact of Mr. Kwok’s co-operation and said a credit of five to six months would be appropriate to reflect that. We see no error.

2The difficulty here is that while the trial judge discussed parity he did not fix any determinate amount to be credited to this appellant. By process of elimination in imposing a sentence of two years less one day, he had to have allowed approximately nine months in this regard.

3In our view, because of Mr. Kwok’s previous criminal antecedents for a similar offence, we are of the view that his situation differs from that of his three co-accused. In the circumstances, on the basis of R. v. Fice, 2005 SCC 32, [2005] 1 SCR 742 a conditional sentence was not available.

4We would allow the appeal, set aside the conditional sentence of two years less one day, impose a sentence of 39 months less six months for co-operation with the authorities and a further 12 months to reflect the time served on the conditional sentence. This leaves a further period of 21 months of incarceration to be served.