W A R N I N G
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor, a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(2) On application of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection 486.2(5) or of the prosecutor in those proceedings, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of justice.
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall
(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and
(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider
(a) the right to a fair and public hearing;
(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer significant harm if their identity were disclosed;
(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;
(d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;
(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;
(f) the salutary and deleterious effects of the proposed order;
(g) the impact of the proposed order on the freedom of expression of those affected by it; and
(h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way
(a) the contents of an application;
(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or
(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15.
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 205, c. 32, s. 15.
CITATION: R. v. Tan, 2008 ONCA 574
DATE: 20080806
DOCKET: C46463
COURT OF APPEAL FOR ONTARIO
LASKIN, SIMMONS and EPSTEIN JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
and
CHAN TAN
Appellant
Christopher Hicks for the appellant
Joanne Stuart for the respondent
Heard: July 8, 2008
On appeal from the sentence imposed by Justice Antonio Di Zio of the Ontario Court of Justice, on January 31, 2005.
LASKIN J.A.:
A. INTRODUCTION
[1] This is a sentence appeal. The appellant, Chan Seng Tan, pleaded guilty to attempted murder, forcible confinement, robbery and sexual assault. He was sentenced to 15 years in prison (less 13 months’ credit for pre-sentence custody) and ordered that he be ineligible for parole until he had served half his sentence. The sentencing judge also ordered that the appellant provide a blood sample for the DNA bank, that he be registered for life with the National Sex Offender Registry, and that he be prohibited for life from having a weapon. The appellant does not appeal these additional orders; he appeals only the length of his prison term. He says that if we reduce his term of imprisonment we should eliminate the parole ineligibility order.
[2] The appellant was a first offender. He pleaded guilty early in the case, sparing the victim the need to testify. And during the sentencing proceedings, he expressed remorse for his actions to the victim and her family.
[3] Emphasizing these mitigating considerations, the appellant submits that in sentencing him to 15 years, the sentencing judge made two related errors: first, he erred by failing to follow the principle that a first offender should receive the shortest possible sentence consistent with relevant sentencing objectives; and second, he imposed a sentence in excess of the appropriate range. The appellant contends that he ought to have received a sentence of six to nine years’ imprisonment.
[4] I do not agree with the appellant’s submissions. His actions and their effect on the victim justified a 15-year sentence.
B. BACKGROUND
(1) The appellant and the victim
[5] The appellant committed these offences in July 2004. At the time he was 34 years old. He had been unemployed since 2002. He used his own savings and money from his father to support himself.
[6] The victim, a young woman, was going to university. She knew the appellant through a mutual friend. The appellant said that in the past he had done favours for the victim.
(2) The offences
[7] The sentencing judge described the offences as “cruel, brutal, terrorizing and horrific”. That description is accurate.
[8] The day of the offences, July 17, 2004, began innocently enough. The victim asked the appellant to help her move out of her boyfriend’s apartment. He agreed to do so. After they had loaded the victim’s car, the appellant asked her to drive him to his car. She said that she would. However, as they were driving toward the appellant’s car, the appellant asked the victim to pull over. She did so. He then talked to her about breaking up with her boyfriend. He said that he wanted to be her boyfriend. She rejected his advances. And matters turned terribly.
[9] The appellant became enraged. The victim tried to leave the car but the appellant grabbed her by her hair and pulled her back in. He bound her hands and feet and covered her mouth with tape. Then he made her lie down in the car. He brandished a knife. He told her to be quiet or he would kill her.
[10] The appellant drove the victim’s car to where his car was parked. He collected some of his clothing and a tarp to cover the victim. Then he drove for about three hours to a friend’s cottage in Bancroft, Ontario. He went down a seldom-used road off the property. Once there, he cut the tape binding the victim’s feet, walked her away from the car and tried to sexually assault her. But he could not continue with the act.
[11] The appellant then put the victim in a chokehold and told her that he was going to kill her. He slit her throat with his knife. She fell to the ground. He kneeled on her back and stabbed her on the right side, collapsing her right lung.
[12] The appellant asked the victim about her bank accounts and obtained her PIN number. He took all documents that identified her, including her passport.
[13] Then, the appellant covered the victim with the tarp he had brought. She lost consciousness. He dragged her 40 feet into the bush, covered her with dirt, leaves and the tarp, and left her to die. He got back into her car and drove away.
(3) The victim’s injuries
[14] Miraculously, the victim regained consciousness and struggled to the main road, where a passerby stopped to help her. She was airlifted to the Kingston General Hospital.
[15] Although the victim did not die, she suffered severe physical and psychological injuries. She underwent two major operations and a blood transfusion. Because of the stabbing that punctured her lung, she has a scar in that lung that is three centimetres deep. The scar affects her breathing. She can no longer carry or lift anything heavy.
[16] The victim has an eight-centimetre scar across her throat. This scar embarrasses her when she is with other people. It serves as a visible and constant reminder of the appellant’s attack.
[17] Because of that attack, the victim suffers from headaches, back and neck pain, shortness of breath and an irregular heartbeat. Although she has continued her university studies, she has difficulty concentrating. At night she is afraid to go to bed and lives with frequent insomnia.
[18] The overall effect of what the appellant did to her on that July day four years ago has been, in her word, “immeasurable”.
(4) The arrest
[19] The appellant returned to the scene of his crimes the next day. He found the area cordoned off by the police. He returned to his apartment. He was greeted by his girlfriend who told him that the police were looking for him. He turned himself in and was arrested.
(5) The sentencing proceedings
(a) The appellant’s explanation and expression of remorse
[20] In the pre-sentence report filed with the court, the author describes the appellant’s explanation for what he did. The appellant considers himself a useless man with nothing going for him. Because he did not finish his post-secondary education and was unemployed, he felt that he had let his family down. He claimed that he had done favours for the victim in the past, and that she did not appreciate these favours. He felt that she had “used” him.
[21] All of these feelings fuelled the appellant’s anger towards the victim. He admitted that he “wanted her to suffer and wanted to kill her for abusing him in such a way”.
[22] The appellant gave two separate statements of remorse, during submissions on sentencing, and later before the sentencing judge delivered his reasons.
[23] On December 15, 2004, about five months after the offences took place, in an oral statement to the court, the appellant did, in essence, express remorse and said that he had found God.
[24] Then, on January 31, 2005, before he was sentenced, the appellant read to the court a written statement he had prepared, in which he showed at least some understanding of the consequences of his actions. He said that he had become focused on changing his attitudes and behaviours. He was willing to accept responsibility for what he had done.
[25] The appellant said that he had pleaded guilty to spare the victim from testifying. He also said that he was “very sorry” for putting her and her family and friends through this ordeal, and for the injuries he had inflicted on her. He acknowledged that he would have to live with the consequences of his actions.
(b) The positions of the Crown and defence
[26] The Crown sought a 15-year sentence less credit on a two-for-one basis for the six and a half months the appellant had spent in pre-trial custody. The defence (not Mr. Hicks) took no position on the length of the sentence, conceded that the Crown’s proposed sentence was within the court’s discretion to impose, and left the length of the sentence for the sentencing judge to determine.
(c) The sentencing judge’s reasons
[27] The sentencing judge accepted the Crown’s position and imposed a sentence of 15 years’ imprisonment, less 13 months’ credit for pre-trial custody – a sentence of 13 years, 11 months.
[28] The sentencing judge said that “denunciation, deterrence and separation of the accused from society…were the main sentencing principles at work here”. However, he added that “rehabilitating the offender” was also a relevant objective of his sentence.
[29] The sentencing judge considered imposing the maximum sentence for attempted murder – a life sentence – but instead chose a lengthy penitentiary sentence because of “[the appellant’s] guilty plea, his desire to spare the victim the trauma of attending court to testify, his expression of remorse and understanding [of] what he has done and the consequences to the victim”.
C. ANALYSIS
(1) Error in principle?
[30] Error in principle is a familiar basis for appellate review of a sentence. Here the appellant argues that the trial judge erred by failing to apply the principle discussed by my colleague, Rosenberg J.A., that where “the offender has not previously been to [the] penitentiary…the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives”. See R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 172 C.C.C. (3d) 225 at para. 36 and R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 at 296-97. The appellant says that the trial judge did not apply this principle, in part because he gave little or no weight to the objective of rehabilitation.
[31] There are three answers to the appellant’s argument. First, the sentencing judge did take the appellant’s rehabilitation into account, but correctly concluded that for these offences denunciation and deterrence were paramount sentencing goals.
[32] Second, Borde and Priest are distinguishable on their facts. In both Borde and Priest, the offenders were youthful first offenders; the appellant is a first offender but he is not youthful. More important, even for youthful first offenders, in Priest at 294-5, Rosenberg J.A. was careful to exclude “very serious offences and offences involving violence” from the principle that sentences for first offenders should emphasize individual deterrence and rehabilitation. The offences the appellant committed were both very serious, and violent.
[33] Third, more broadly, even accepting that the appellant is entitled to the shortest sentence possible consistent with the relevant sentencing principles, that sentence must still be proportionate to the gravity of his offences. And it must be grounded in the facts, in the individual circumstances of his case. Here, the facts – the appellant’s actions and their effect on the victim – put the six- to nine-year sentence the appellant argues for out of the question.
[34] I turn to the appellant’s core submission: even if the sentencing judge committed no error in principle, 15 years was far too long.
(2) Is a 15-year sentence excessive?
[35] The sentences for attempted murder imposed or upheld by this court have varied widely. At the lower end of the range is R. v. Campbell, 2003 CanLII 48403 (ON CA), [2003] O.J. No. 1352 (C.A.), where this court upheld the sentence of nine years’ imprisonment. Reflecting an even lower sentence is R. v. Boucher (2004), 2004 CanLII 17719 (ON CA), 186 C.C.C. (3d) 479 (Ont. C.A.), where, on a Crown appeal of a sentence of two years less a day (in addition to the 28 months the accused had spent in pre-trial custody), Simmons J.A. said that the appropriate sentence was six years’ imprisonment less credit for time served. As Mr. Boucher had already served the custodial portion of his sentence, the court did not impose the higher sentence because it was not in the interests of justice to reincarcerate him.
[36] At the highest end of the range, this court has upheld life sentences for attempted murder in R. v. Charlebois, [1987] O.J. No. 886 (C.A.); R. v. Lieug, 1995 CanLII 1393 (ON CA), [1995] O.J. No. 2424 (C.A.); and R. v. Mesgun (1997), 1997 CanLII 623 (ON CA), 121 C.C.C. (3d) 439 (Ont. C.A.).
[37] In the middle of the range is the decision of this court in R. v. Spurway, 1996 CanLII 701 (ON CA), [1996] O.J. No. 3160 (C.A.), which the appellant relies on to justify our intervention to lower his sentence. In that case, Mr. Spurway broke into his former wife’s home and brutally attacked her, an attack that was entirely unprovoked. He placed a loaded .22 calibre revolver against her forehead and said “you fucking bitch, you’re going to die”. He then tried to shoot his wife but fortunately the revolver was defective and did not fire.
[38] Mr. Spurway was convicted of attempted murder and break and enter with intent to commit an indictable offence. He was also convicted of other unrelated offences. The trial judge gave him a global sentence of 17 years’ imprisonment, of which 15 years related to the attempted murder and break and enter offences. This court concluded that a 15-year sentence for those offences was excessive and reduced it to 11 years. The panel said at para. 6:
We are of the view that the sentences of 15 years concurrent imposed on the charges of attempted murder and break and enter with intent to commit an indictable offence amount to a marked and substantial departure from the sentences customarily imposed for similar offenders committing similar crimes. While the principles of general and specific deterrence and denunciation must take precedence in cases such as this, the sentence should not be so crushing as to remove any hope on the part of the offender. Without in any way wishing to minimize the gravity of these offences and their impact upon the victim, having regard to recognized principles of sentencing, including totality, we have concluded that a global sentence of 13 years was called for in this case. To give effect to this, we would reduce the sentences on the charges of attempted murder and break and enter with intent to 11 years concurrent.
[39] In some cases, these widely varying sentences for attempted murder reflect the principle of appellate deference. In all cases, the variations reflect the differing circumstances of the offence and offender, and the differing effects on the victim. Indeed, there are many factual differences between Spurway and the present case. For example, although the victim in Spurway was brutally attacked, the panel did not say that she suffered any lasting injuries. Here, in contrast, the victim’s injuries – physical and psychological – were devastating and permanent.
[40] I accept that a 15-year sentence for an offender who pleaded guilty early on, who has no previous criminal record, and who expressed remorse to the victim, is a high sentence. However, the sentence is justified by the following considerations:
• The domestic-like context: This court considers violence in a domestic context to be an aggravating consideration on sentence. Here, the context for these offences, while not strictly domestic, resembled a domestic situation. The appellant’s heinous conduct began when the victim said no to his request to be her boyfriend. As Ms. Stuart for the Crown put it, women ought to be able to say no to a romantic advance without being in fear of their lives unless they acquiesce.
• Specific intent to kill: The appellant acknowledged to his probation officer that he specifically intended to kill the victim.
• Elements of planning and deliberation: The appellant’s actions showed elements of planning and deliberation. He picked up a tarp from his car that he later used to conceal the victim’s body. He then drove to a remote location that he knew about.
• Prolonged duration of the attack: The appellant’s reign of terror lasted for several hours. Although the trial judge made no specific finding on its duration, the drive to Bancroft alone, during which the victim was bound and gagged, lasted three hours.
• The victim’s identity and body concealed: The appellant stole from the victim all of the documents that might identify her and then hid her body so she would not be found.
• The victim left to die: Not only did the appellant stab the victim twice, the appellant then left her to die in a remote area.
• Serious physical and psychological injuries: The appellant’s brutal and callous attack caused the victim serious physical and psychological injuries, injuries that are likely permanent for this young woman. The damage to her lung and resulting shortness of breath, the disfigurement and resulting embarrassment, the fear and resulting insomnia, are not likely to go away.
[41] I would uphold the sentence of 15 years imposed by the sentencing judge.
D. CONCLUSION
[42] Although the appellant pleaded guilty to attempted murder, had no previous criminal record and expressed remorse to the victim, his actions and their effect on the victim justified a sentence of 15 years’ imprisonment. Accordingly, although I would grant leave to appeal sentence, I would dismiss the sentence appeal.
RELEASED: August 6, 2008 “John Laskin J.A.”
“JL” “I agree Janet Simmons J.A.”
“I agree G. Epstein J.A.”