Her Majesty the Queen v. Kanthasamy et al.

[Indexed as: R. v. Kanthasamy]

84 O.R. (3d) 664

Court of Appeal for Ontario,

Sharpe, Simmons JJ.A. and Pardu J. (ad hoc)

February 13, 2007

Criminal law -- Sentencing -- Pre-trial custody -- Adverse conditions in detention centre -- Accused adducing general evidence regarding institutional conditions but failing to call evidence regarding particular hardships experienced by accused -- Trial judge not erring in failing to give accused enhanced credit for pre-trial custody -- Appeal from sentence dismissed.

Criminal law -- Sentencing -- Youthful offenders -- Violent offences committed by young adult offenders with either no or very minor criminal record -- Two accused attacking apparently randomly selected victim with machetes inflicting serious permanent physical and psychological injuries -- Principle that youthful offenders should not receive jail sentences or the shortest possible custodial sentence of attenuated weight when committing offences involving serious violence -- Sentence of seven and one-half years' imprisonment at high end of range for aggravated assault and other offences but not unfit -- Accused's appeal from sentence dismissed.

The two accused, who were 20 years old at the time of the offence and 22 years old at the time of sentencing, were convicted of aggravated assault, assault with a weapon and breach of recognizance after taking part in an apparently unmotivated machete attack on a randomly selected victim. The accused inflicted at least 20 blows with machetes, resulting in the victim suffering serious, life altering physical and psychological injuries. One accused was a first offender, and the other had a minor and unrelated record. Both accused had good employment records and had the support of family and friends. The trial judge sentenced each accused to seven years and six months' imprisonment. After credit for 24[cents] months of pre-trial custody on a two-for-one basis, the sentence amounted to 41 months. The accused appealed.

Held, the appeal should be dismissed.

The weight to be given to the principle that youthful offenders should not be sentenced to imprisonment if some other sentence could be imposed, or should receive the shortest possible sentence if jail is required, is attenuated in the case of serious violent crimes. While the trial judge could have imposed a sentence that would have kept the accused in the provincial correctional system and allowed for a lengthy period of probation after their release, the sentence imposed was not demonstrably unfit although it was close to the upper range of sentences imposed for this kind of offence. [page665]

The trial judge did not err in refusing to give the accused enhanced credit for periods of pre-trial custody during which the institution suffered from overcrowding, several lockdowns and reduced programs. While there was evidence about the general conditions in the institution during the time the accused were there, there was no evidence about the particular situation of the accused.

APPEAL by the accused from convictions entered on April 2, 2005 and sentences imposed on June 28, 2005 by Cumming J. of the Superior Court of Justice, sitting with a jury, [2005] O.J. No. 2708, [2005] O.T.C. 557 (S.C.J.).

Cases referred to R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 194 N.R. 321, 105 C.C.C. (3d) 327, 46 C.R. (4th) 269; R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 129 D.L.R. (4th) 657, 188 N.R. 284, 102 C.C.C. (3d) 193, 43 C.R. (4th) 269

John Corelli, for respondent. Peter J. Connelly, for appellant Muralitharan Kanthasamy. Paul Calarco, for appellant Sivanasan Sivarajah.

Judgment

The judgment of the court was delivered by

[1] PARDU J. (ad hoc): -- The appeals against convictions were abandoned.

[2] The appellants seek leave to appeal their sentences of seven years, six months for aggravated assault, assault with a weapon, and failure to comply with a recognizance.

[3] They argue that the trial judge did not give sufficient weight to their status as youthful offenders. After credit for 24[cents] months of pre-sentence custody on a two-for-one basis, the sentence amounted to 41 months. The appellants argue that ten to 23 additional months, perhaps accompanied by probation for the maximum of three years, would have been sufficient.

[4] The appellants and one other attacked the victim with machetes, for no apparent reason. The victim, who appears to have been selected at random, was standing with friends near his high school. He tried to flee into the school but the doors were locked. He was knocked to the ground and while prone and helpless, was slashed some 21 times with the machetes, leaving him with serious, life-altering physical and psychological injuries. The jury acquitted the appellants of attempted murder, but convicted them of aggravated assault.

[5] The sentence imposed was close to the upper range of sentences imposed for this kind of offence. The appellants argue that sentences in the highest range have been imposed where the victim has been left in a vegetative state or wholly dependant on others and that this is not that kind of case. That the victim in this case did not suffer even more catastrophic injuries is not [page666] attributable to any restraint or care on the part of the offenders and does not materially reduce the culpability of their actions.

[6] The appellants were both 20 years old at the time of the offence and 22 years old at the date of sentencing. They had good employment records and had the support of family and friends. They argue that the sentencing judge did not pay sufficient heed to the long-standing principle that youthful offenders should not be sentenced to imprisonment if some other sentence could be imposed, and that if jail is required, it should be as short as possible. The weight given to this factor is attenuated in serious violent crimes. It is reasonable to infer that an offender who violently attacks another, for no apparent reason, and commits that offence in concert with two other persons, all armed with machetes, constitutes a danger to the community.

[7] The reasons of the trial judge were thorough and do not reflect any failure to consider a relevant principle. He noted, at paras. 63-65:

The circumstances of this case make rehabilitation of youthful first-time (leaving aside the relatively minor previous theft conviction of Mr. Kanthasamy) offenders, together with denunciation of the offenders' unlawful conduct, specific deterrence and general deterrence, primary objectives of the sentence to be imposed.

The mitigating factor is the young age of the offenders. They are reasonably well educated, have work histories and can be productive members of society.

The objectives of denunciation of unlawful conduct, and specific and general deterrence must be balanced with the objective of rehabilitation.

[8] As noted in R. v. Shropshire, [1995] 4 S.C.R. 227, [1995] S.C.J. No. 52, 102 C.C.C. (3d) 193, at para. 46:

An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge had the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the Court of Appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable.

At para. 50:

Unreasonableness in the sentencing process involves the sentencing order falling outside the "acceptable range" of orders; . . .

[9] Similarly in R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, 105 C.C.C. (3d) 327, at paras. 90 and 91:

Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is [page667] demonstrably unfit. Parliament explicitly vested sentencing judges with a discretion to determine the appropriate degree and kind of punishment under the Criminal Code. As s. 717(1) reads:

717(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts the person who commits the offence.

This deferential standard of review has profound functional justifications. As Iacobucci J. explained in Shropshire, at para. 46, where the sentencing judge has had the benefit of presiding over the trial of the offender, he or she will have had the comparative advantage of having seen and heard the witnesses to the crime. But in the absence of a full trial, where the offender has pleaded guilty to an offence and the sentencing judge has only enjoyed the benefit of oral and written sentencing submissions (as was the case in both Shropshire and this instance), the argument in favour of deference remains compelling. A sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of both the Crown and the offender. A sentencing judge also possesses the unique qualifications of experience and judgment from having served on the front lines of our criminal justice system. Perhaps most importantly, the sentencing judge will normally preside near or within the community which has suffered the consequences of the offender's crime. As such, the sentencing judge will have a strong sense of the particular blend of sentencing goals that will be "just and appropriate" for the protection of that community. The determination of a just and appropriate sentence is a delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community. The discretion of a sentencing judge should thus not be interfered with lightly.

[Emphasis in the original]

[10] In this case, we are not satisfied that the sentence imposed was "demonstrably unfit" nor that the sentence imposed was a "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes".

[11] While the trial judge could have imposed a sentence which would have kept the appellants in the provincial correctional system and allowed for a lengthy period of probation after their release, we are not persuaded that he erred in the blend of sentencing goals he viewed as just and appropriate for the protection of the community.

[12] It is also argued that the trial judge erred in failing to give a three for one credit for two periods of pre-trial custody totalling five months during which the institution suffered overcrowding, several lockdowns and reduced programs. The trial judge did not err in refusing enhanced credit for this time. While there was evidence about the general conditions in the institution during the time the appellants were there, there was no evidence about the [page668] particular situation of the appellants. The trial judge reviewed the relevant authorities and refused to exercise his discretion in favour of a greater credit. He did not err in assessing the pre-trial custody on a global basis, and determining that a two for one credit on the entire period of pre-trial custody was adequate.

[13] Accordingly, leave to appeal sentence is granted but the appeals are dismissed.

Appeal dismissed.