DATE: 20060206

DOCKET: C43057

C42739

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) –and- MATTHEW HECHAVARRIA (Appellant)

BEFORE:

LABROSSE, MOLDAVER AND MACFARLAND JJ.A.

COUNSEL:

P. Andras Schreck and Jennifer A.Y. Trehearne

for the appellant

Alison Wheeler

for the respondent

HEARD AND RELEASED ORALLY:

January 20, 2006

On appeal from the conviction entered on November 12, 2004 and the sentence imposed January 13, 2005 by Justice Ronald G. Thomas of the Superior Court of Justice.

E N D O R S E M E N T

[1] The appellant appeals his conviction on three counts of robbery and two counts of using a firearm while committing the robberies.

[2] It was alleged that the appellant and his accomplice robbed the three complainants while driving around in search for money and drugs. The case depended entirely on the testimony of the complainants with no confirmatory evidence.

[3] There were numerous inconsistencies in the evidence of the three complainants. They included inconsistencies about: the description of a knife and its use, the attendance of an ATM machine, a meeting to buy a bicycle, an attempt to escape, assaults on the complainants, the description of the gun used in the robberies, and a drug deal.

[4] It was clear that the complainants had lied to the police in their descriptions of the robberies.

[5] The complainants were extensively cross-examined on all issues. The appellant and his accomplice did not testify.

[6] It was also alleged that there was an opportunity of collusion among the three complainants before and during the trial.

[7] While not perfect, the reasons address the issues raised in the trial. The reasons demonstrate that the trial judge fully understood the defence position, that the inconsistencies in the complainants’ evidence and the opportunities for collusion among them raised a reasonable doubt. He addressed both aspects of the theory of the defence.

[8] The trial judge was of the view that the inconsistencies were essentially immaterial on essential matters. In other words, they did not go to the core issues of whether the appellant used a gun and demanded money from the complainants.

[9] On the issue of potential collusion, the trial judge was not required to refer to every aspect of the evidence that might suggest collusion. He gave some reasons for his conclusion, and he was entitled to believe the complainants’ denials while being clear that he did not accept their evidence globally.

[10] The trial judge heard the witnesses and was in the best position to make an assessment of their credibility. He was entitled to accept their explanations for their initial lies to the police and to find that, on essential matters, they were telling the truth in their evidence at trial.

[11] The trial judge’s reasons leave the appellant in no doubt as to why he was convicted and are sufficient to permit meaningful appellate review.

The Sentence Appeal

[12] The Crown appeals the sentence imposed of one year and ten months’ imprisonment on the basis that the sentence on Count Five was illegal in that it was made concurrent to other sentences imposed, contrary to ss. 85 (3) and (4) of the Criminal Code.

[13] This is conceded.

[14] The Crown submitted that the sentence on the robberies was fit and that one year consecutive had to be imposed for each weapon offence for a total of two years and ten months.

[15] The defence submits that we should consider the totality principle and accordingly impose a total sentence of two years and one month. Having considered the defence argument, we are not persuaded that the sentence on the robberies should be reduced. The result would be to dilute the minimum sentence provided for gun offences.

[16] Accordingly, the appeal against conviction is dismissed. The appeal against sentence is allowed. The total sentence is two years and ten months.