COURT OF APPEAL FOR ONTARIO

DATE: 2002-12-09 DOCKET: C35788, C36125

RE: HER MAJESTY THE QUEEN (Respondent) –and– TROY METROPOLIT and LAWRENCE DA SILVA (Appellants)

BEFORE: LABROSSE, MOLDAVER and FELDMAN JJ.A.

COUNSEL: Keith E. Wright, for the appellant, Troy Metropolit Christopher Hicks, for the appellant, Lawrence Da Silva Lucy Cecchetto, for the respondent

HEARD: December 4, 2002 RELEASED ORALLY: December 4, 2002

The appellant, Troy Metropolit, appeals against the sentence imposed by Justice Hugh Locke of the Superior Court of Justice, sitting without a jury, dated February 17, 2000.

The appellant, Lawrence Da Silva, appeals against the sentence imposed by Justice Hugh Locke of the Superior Court of Justice, sitting without a jury, dated February 17, 2000.

ENDORSEMENT

[1] The appellants were convicted of numerous offences as a result of the car jacking, kidnapping, assault, extortion and robbery of two innocent victims. The horrendous night of terror that followed the car jacking lasted 11 ½ hours. The victims were abducted, unlawfully confined both in their car and in the trunk of the car, and then in an apartment, severely assaulted repeatedly, robbed, threatened with a firearm, and forced to supply their home access code so that the appellants could enter and burglarize their home. Their confinement would have continued to unknown results but for their fortuitous escape from a co-accused of the appellants who was left to guard them while the appellants were away from the apartment.

[2] The offences have had, and continue to have, a lasting and profound psychological effect on the two victims and a physical effect on one victim who sustained serious injuries during the vicious assaults.

[3] The appellant Da Silva, who was 22 years old at the time of sentencing, was sentenced to 18 years imprisonment. A parole ineligibility order was made requiring that he serve one-half of his sentence. The appellant Metropolit, who was 23 years old at sentencing, was sentenced to 16 years imprisonment and a similar parole ineligibility order was made.

[4] We see no error on the part of the trial judge in essentially treating the appellants on an equal basis. This is not a case where the focus should be on the individual actions of each appellant. The facts demonstrate that this was a joint venture throughout and each accused was equally culpable for the offences for which they were jointly charged. Identical sentences were warranted. Metropolit was an active participant in the events and the sadistic cruelty perpetrated on the victims. Da Silva was charged with additional offences and received two extra years for the robbery with a firearm. He also received a five year concurrent sentence for administering a noxious substance.

[5] The trial judge found that the appellants were career criminals who had intentionally embarked upon a violent criminal path of life and had treated jail and the criminal justice system as mere occupational hazards. Both appellants had amassed significant criminal records which began as young offenders and carried into adulthood. Their records include serious crimes of violence.

[6] The trial judge categorized these offences as one of those few examples of a crime that goes beyond pure horror. The nature of the offences, coupled with the offenders’ motive, fall within that category of criminal conduct requiring the strongest form of denunciation. It is wrong to compare cases in search of some comparable level of horror as the appellants appear to do. In the words of Laskin J.A., speaking for this court in R. v. Olsen and Podniewicz (1999), 131 C.C.C. 355, this case fits the description of a “worst group of offences and a worst group of offenders”.

[7] The trial judge considered all the relevant factors in arriving at a global sentence. He was justified in imposing a sentence that reflected the gravity of the offences, reinforced the principles of denunciation and general deterrence, and maintained public respect for the administration of justice. The appellants have failed to show that the sentences are demonstrably unfit or that they represent a substantial and marked departure from sentences in similar circumstances so as to justify the intervention of this court.

[8] With respect to Da Silva, the Crown concedes that the trial judge erred in proceeding under s. 85 of the Criminal Code in imposing two one-year terms for robbery with a firearm. He should have proceeded under s. 344 of the Code which requires a minimum punishment of four years. In order to maintain the global sentence that the trial judge wanted to impose, with the consent of the parties, we would stay count 9 as against Da Silva, and impose a sentence of 9 years on each of counts 18 and 19, consecutive to each other, but concurrent to the other sentences imposed.

[9] The trial judge was aware of the period of the approximately one year of pre-trial custody that the appellants spent in prison. He rejected the Crown’s submission that no weight should be attached to the pre-trial custody and stated that he did not intend to ignore it. However, when imposing sentence, the trial judge made no reference to pre-trial custody and did not refer to any credit in determining the actual sentences. We cannot be certain that he gave the appellants credit as he intended to do, and we see no reason credit should not be given to the appellants at the customary two-for-one rate. Accordingly, the global sentences of 18 and 16 years for Da Silva and Metropolit are respectively reduced to 16 and 14 years. The two year reduction with respect to Da Silva is to be applied to count 19 and the two year reduction for Metropolit is to be applied to count 1. The sentence with respect to count 2 for Metropolit is reduced to 14 years concurrent.

[10] The trial judge expressly recognized that parole ineligibility orders should be used sparingly and only in circumstances where the Crown has led clear evidence of justification. He further recognized that the reasons for imposing such an order must extend beyond those which led to the imposition of the sentence in the first place. The trial judge gave cogent reasons for concluding that a parole ineligibility order was warranted in this case. We see no error on the part of the trial judge on this issue. The ineligibility order stands against each appellant and applies to the reduced sentences.

[11] Except as provided above, the appeals are dismissed.

Signed: “J.M. Labrosse J.A.” “M.J. Moldaver J.A.” “K. Feldman J.A.”