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(1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:
- (1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.
(2) For the purpose of subsection (1), the “proper administration of justice” includes ensuring that
(a) the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and
(b) justice system participants who are involved in the proceedings are protected
(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order. R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).
CITATION: R. v. Thai, 2010 ONCA 112
DATE: 20100210
DOCKET: C47398
COURT OF APPEAL FOR ONTARIO
Sharpe, Simmons and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Hen Hai Thai
Appellant
Nicholas Xynnis, for the appellant
Deborah Krick, for the respondent
Heard: January 29, 2010
On appeal from the sentence imposed by Justice M. H. Tulloch of the Superior Court of Justice dated September 11, 2006.
By the Court:
[1] The appellant seeks leave to appeal his sentence of 12 years’ imprisonment following his conviction on four counts of robbery using a firearm. The charges related to a series of home invasion robberies carried out by a gang and organized by the appellant in the Hamilton and Brampton areas. As the charges related to offences committed in different districts, some proceeded in Hamilton and others – those at issue in this appeal – proceeded in Brampton. The appellant attempted to have all the charges dealt with together but was unable to do so as crown counsel were unable to coordinate their involvement to make that happen.
[2] In the Hamilton proceedings, the appellant was convicted of conspiracy and assault with intent to steal and sentenced to 14 years imprisonment on the conspiracy charge and 10 years concurrent on the assault with intent to steal charges.
[3] The appellant was then convicted and sentenced on the charges now before this court. The trial judge expressly made the twelve year sentence, imposed on September 11, 2006, concurrent with the 14 year sentence that had been imposed in the Hamilton proceedings on February 4, 2005. Accordingly, by imposing a 12 year sentence, the trial judge effectively imposed a sentence that did not add to the period of incarceration the appellant would serve as a result of the earlier sentence.
[4] After the appellant was sentenced in this proceeding, his appeal from the sentence imposed in the Hamilton proceedings was heard by this court. We concluded that while a substantial sentence was warranted, the trial judge had erred, inter alia, by finding that the appellant was not amenable to rehabilitation and by failing to give any weight to the appellant’s status as a first offender and we reduced the sentence to 10 years: R. v. Thai 2007 ONCA 240.
[5] Obviously, the trial judge did not know this would happen. Despite the trial judge’s intention not to extend the appellant’s overall sentence beyond the time to be served on the Hamilton sentence, the sentence he imposed would result in total sentence of 13 years and 7 months rather than 10 years.
[6] We agree with the appellant that this offends the totality principle. Although for procedural reasons, the two sets of charges were not dealt with at the same time, the totality principle required that due consideration be given the overall effective sentence being imposed for these closely related charges. The trial judge quite properly endeavoured to respect that principle by imposing a sentence that did not add to the earlier sentence. In our view, we should take the same approach. As the appellant’s sentence on the Hamilton charges was reduced to 10 years, the sentence imposed on the charges now before us should be reduced to 8 years and 4 months so that the time to be served on this sentence will coincide with the time to be served on the Hamilton sentence.
[7] The appellant also argues that the disparity between the sentence he received and the sentence imposed on his co-conspirators, ranging between 3 and 4 years, cannot be justified. We disagree. First, the appellant’s sentence has now been reduced to 8 years and 4 months. Second, a more severe sentence for the appellant was entirely warranted. The appellant was the ring-leader in this string of robberies, and he was convicted of the substantive offence of robbery whereas the co-conspirators were acquitted on the substantive counts and convicted only of conspiracy.
[8] Accordingly, leave to appeal sentence is granted, the appeal is allowed and the sentence is reduced to 8 years and 4 months, concurrent with the other sentence the appellant is serving.
RELEASED: “RJS” Feb. 10, 2010 “Robert J. Sharpe J.A.”
“Janet Simmons J.A.”
“Gloria Epstein J.A.”