DATE: 20010516

DOCKET: C26161

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v. LONG VAN MAI (Appellant)

BEFORE: DOHERTY, FELDMAN and SIMMONS JJ.A.

COUNSEL: James C. Fleming for the appellant

Lisa Joyal for the respondent

HEARD: March 28, 2001

On appeal from the conviction imposed by Justice John F. Hamilton dated April 19, 1996 and the sentence imposed on June 17, 1996.

E N D O R S E M E N T

[1] By endorsement dated April 19, 2001, this Court allowed the appellant’s appeal, quashed his attempted murder conviction and acquitted him on that charge. The Court confirmed the appellant’s convictions on charges of maiming and the use of a firearm in the commission of an offence. We invited submissions as to the appropriate sentence in the light of the disposition of the conviction appeal. Counsel have now provided those submissions.

[2] Both counsel acknowledged the seriousness of the offences. They take very different positions as to the appropriate sentence. Counsel for the appellant submits that a sentence of 4 years on the maiming charge and 2 years consecutive on the firearms charge is an appropriate disposition. The Crown submits that a 10-year sentence on the maiming charge and a 2 year consecutive sentence on the firearms charge is the appropriate disposition.

[1] The circumstances surrounding the offences offer very little by way of mitigation. The appellant clearly intended to do serious harm to the victim and had to know that serious injury or death was a probable consequence of his action. The moral blameworthiness of his conduct falls just short of that attributable to a person who fires a weapon intending to kill.

[2] The consequences of the appellant’s actions to the 24-year old victim are tragic in the extreme. He was rendered a paraplegic and must live the rest of his life in constant pain. It is impossible to overstate the harm inflicted on the victim by the appellant.

[3] The offences also occurred in the course of what by all accounts was a somewhat trivial dispute between high school students. Schools must be safe havens. The ready resort to the use of firearms and extreme violence in the school setting is a very disturbing feature of this case. The appellant’s conduct mimics that which is so often seen in the movies and on television. The appellant and other like-minded people must know that such conduct is unacceptable in the real world where, unlike in the movies or television, the harm to the victims is very real. The community relies on the Court to denounce such conduct by the sentences it imposes.

[4] In determining the appropriate sentence, the Court must, however, consider the offender as well as the offence. This part of the sentencing picture is more encouraging. The appellant is 23 years old and does not have a criminal record. He immigrated to Canada from Vietnam and by all accounts has a supportive family. He has achieved some academic success and shows potential in that area. His employment skills are minimal.

[5] The appellant has not shown any remorse. At one level, this is understandable given his contention that he did not shoot the victim. The absence of any empathy for the victim is, however, of concern. It certainly does not assist the appellant on sentencing.

[6] A co-accused who was convicted of aggravated assault and use of a firearm and who has a similar background to the appellant received sentences totalling 10 years. The shots he fired however, while endangering the life of another victim, did no physical harm.

[7] The appellant spent some 20 months in custody prior to sentencing. We see no reason to depart from the practice of giving credit for pre-sentencing custody on about a 2 to 1 ratio.

[8] Bearing in mind the egregious nature of the offence and the terrible consequences to the victim, but also the appellant’s age, his relatively positive antecedents and his pre-trial custody, we conclude that a sentence of 8 years on the maiming charge is appropriate. The 2-year consecutive sentence on the firearms charge stands as does the weapons prohibition. The total sentence is, therefore, 10 years and runs from the date on which sentence was imposed by the trial judge.