R. v. Pham, 2008 ONCA 421

CITATION: R. v. Pham, 2008 ONCA 421

DATE: 20080528

DOCKET: C44882

COURT OF APPEAL FOR ONTARIO

FELDMAN, SHARPE and ARMSTRONG JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

and

THE HUNG PHAM

Appellant

David Wilson for the appellant

Moiz Rahman for the respondent

Heard: May 2, 2008

On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice dated November 18, 2005 and from the sentence imposed by Justice Molloy dated January 17, 2006.

ENDORSEMENT

[1] The appellant appeals both conviction and sentence. He was convicted after a trial of 4 offences, possession for the purpose of trafficking, conspiracy to traffic, trafficking and possession of proceeds of crime. He was sentenced to 6 years.

[2] The basis of the conviction appeal is that the Vietnamese interpreter did not fully and accurately translate the testimony of the appellant or the questions that were asked of him and that the cumulative effect of the errors deprived the appellant of his Charter right to make full answer and defence.

[3] For the purposes of the appeal, the appellant retained another Vietnamese interpreter to review the recording of the evidence and to provide another translation. He provided the court with the excerpts where the second interpreter says that errors were made. We have reviewed those excerpts in light of the reasons for judgment and are satisfied that whether viewed individually or cumulatively, the errors are minor in nature and would not have affected the verdict or the appellant’s ability to make full answer and defence.

[4] We therefore dismiss the conviction appeal.

[5] The sentence appeal is based on the submission that the trial judge erred in her application of the parity principle to the sentences imposed on the appellant and his co-accused.

[6] The co-accused pled guilty to one count of possession for the purpose of trafficking in front of another judge following a preliminary hearing and received a sentence of 4 years. Both men were involved in a conspiracy to distribute large quantities of marijuana that they received from British Columbia. They were observed receiving the drugs and transporting them in smaller quantities and were found in possession of over one million dollars. The trial judge found that both men were equally culpable in the enterprise. She concluded that the correct range of sentence for the offences is between 5 and 8 years, and that the appropriate sentence for the appellant is 6 years. She referred to the principle of parity and concluded that the principle was respected in this case because the co-accused pled guilty.

[7] In our view, the effective discount for pleading guilty in this case of two years on a six year sentence is certainly at the high end, especially where the plea was not made at the earliest opportunity and the Crown’s case was very strong. However, we cannot say that the trial judge made an error that would allow this court to interfere with a sentence, a matter on which this court accords substantial deference to trial judges. We also note that the appellant received a sentence of 4 years on the possession for the purpose count, while the 6 year sentence was imposed for the conspiracy.

[8] In the result, leave to appeal sentence is granted but the appeal is dismissed.

Signature: “K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”