COURT OF APPEAL FOR ONTARIO
DATE: 20000530
DOCKET: C32085
RE: HER MAJESTY THE QUEEN (Respondent) v. THAVIPHANH
THONGDARA (Appellant)
BEFORE: FINLAYSON, DOHERTY and O’CONNOR JJ.A.
COUNSEL: Lorne Sabsay
for the appellant
Alex Alvaro
for the respondent
HEARD: May 25, 2000
On appeal from the conviction imposed by Jennings J. on March 16,
1998 and the sentence imposed on April 14, 1999.
E N D O R S E M E N T
[1] The appellant was convicted of several offences arising out
of the invasion of a karaoke bar by a gang led by the appellant.
His conviction appeal is limited to the conviction on the charge
of attempted murder. He contends that the trial judge
misdirected himself on the principles governing the evaluation of
eyewitness identification evidence.
[2] The case for the Crown identifying the appellant as the
“shooter” was very strong and rested on circumstantial evidence
as well as the eyewitness identification of two persons. We see
no error in the trial judge’s approach to the eyewitness
identification evidence. He was alert to its potential
weaknesses but chose to accept it. He was entitled to do so.
[3] The appellant received a total sentence of 18 years. He
also served two years pre-trial custody. Counsel for the
appellant submits that the three-year consecutive sentence
imposed on the extortion charge should have been concurrent to
the other sentences resulting in a total sentence of 15 years and
not 18 years.
[4] It may well be that the extortion sentence should have been
concurrent. We need not come to any conclusion on that issue as
we are satisfied that in any event the total sentence imposed on
the appellant was well within the appropriate range in the
circumstances. It is difficult to imagine a worse case than this
and the offender, despite his youth, approaches the worst
offender status. A total sentence of 18 years, even taking to
account the two years of pre-trial custody, was entirely
appropriate.
[5] The conviction appeal is dismissed. Leave to appeal
sentence is granted, but the appeal is dismissed.