COURT OF APPEAL FOR ONTARIO
DATE: 20000727
DOCKET: C30459
RE: HER MAJESTY THE QUEEN (Respondent) v. MICHAEL YIP
(Appellant)
BEFORE: DOHERTY, ABELLA and MOLDAVER JJ.A.
COUNSEL: Michael S. Mandelcorn
for the appellant
Alison Hurst
for the respondent
HEARD: July 14, 2000
On appeal from the sentence imposed by Hamilton J. dated May 9,
E N D O R S E M E N T
[1] In the tragic circumstances of this case, the protection of
the public through the long-term incarceration of the appellant
was the only option realistically open to the trial judge.
[2] The offence was a very serious one. The appellant has a
major mental disorder and a record for violence. We cannot say
that the sentence imposed (12 years following one year pre-trial
incarceration) reflects an error in principle or is clearly
excessive. In coming to that conclusion, we have taken into
consideration the trial judge’s mistaken belief that a life
sentence was the maximum penalty allowed by law for the offence
of aggravated assault. In fact, 14 years is the maximum.
[3] We also reject the appellant’s contention that the trial
judge failed to give adequate weight to the fact that the
appellant had not received a prior sentence of incarceration.
Prior sentences are always a consideration in determining the
appropriate sentence, but in this case the prior sentence was a
very minor consideration given the other more relevant
circumstances.
[4] Unfortunately, the appellant suffers from a major mental
disorder which manifests itself in extremely violent behaviour.
The record, even as augmented by post-conviction material placed
before us, holds out little present realistic prospect for
rehabilitation. In those circumstances, we cannot say that the
trial judge erred in making an order under s.743.6 delaying the
appellant’s eligibility for parole until he had served half of
his sentence.
[5] Leave to appeal is granted but the appeal is dismissed.
“Doherty J.A.”
“R.S. Abella J.A.”
“M.J. Moldaver J.A.”