Court File and Parties

CITATION: R. v. Situ, 2010 ONCA 683

DATE: 2010-10-19

DOCKET: C45344 and C47475

COURT OF APPEAL FOR ONTARIO

Feldman, Lang and LaForme JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Phillip Situ and Giang Nguyen Appellants

Counsel: John Norris and Brydie CM Bethell, for the appellant, Phillip Situ Kevin Tilley, for the appellant, Giang Nguyen Joanne K. Stuart, for the respondent

Heard: September 24, 2010

On appeal from the convictions entered on March 27, 2006, and the sentences imposed on April 11, 2006, by Justice John F. Hamilton of the Superior Court, sitting without a jury.

Endorsement

By the Court:

[1] The appellants challenge their convictions on the basis that the verdicts against them were unreasonable or, alternatively, the trial judge’s reasons were inadequate. In addition, the appellant, Mr. Nguyen, claims that the trial judge made an error in the application of the law for party liability to the circumstances of his case. The appellants also appeal their 15-year sentences. In our view, both the conviction and sentence appeals must be dismissed.

[2] Both appellants argue that their convictions were unreasonable on the basis that the underlying eyewitness identification evidence was unreliable. However, in our view, it was open to the trial judge to accept the victim’s identification of the appellants, which was supported by other evidence.

[3] The identification of Mr. Nguyen was supported by the fact that Mr. Nguyen was known to the victim and was not a stranger, by the forensic evidence of Mr. Nguyen’s fingerprints on the water bottle at the scene shown on the video, and by the trial judge’s identification of Mr. Nguyen from the video. Based on this evidence, Mr. Nguyen’s counsel conceded at trial and on appeal that Mr. Nguyen was at the gambling establishment at the time of the event.

[4] The evidence supporting the identification of Mr. Situ included the victim’s early statement that his “shooter” was a man referred to as “Phillip”. The victim did not identify the shooter in any of three earlier photo line-ups. In the fourth photo line-up, the victim unhesitatingly identified the appellant Mr. Situ, whose name turned out to be Phillip. Although the appellant, Mr. Situ, argues that this identification is unreliable in part because of the passage of time between the shooting and the fourth photo line-up, in our view, the trial judge was entitled to accept the identification in light of all the other supporting circumstances. We also observe that, at the time of the identification, the victim said that he knew the man in the photograph was the shooter because the shooter looked like a celebrity, Jet Li, as did the man the victim identified.

[5] We also do not accept the appellants’ argument concerning the adequacy of the trial judge’s reasons. Twenty-two of the trial judge’s 28 pages of reasons are dedicated to an analysis of all the evidence regarding the core issue of identification. The trial judge’s reasons also demonstrated that he was very much alive to the frailties inherent in eyewitness identification evidence and were sufficient for their required purposes.

[6] Mr. Nguyen raises an additional ground of appeal that the trial judge erred in convicting him for the offence of attempted murder on the basis of party liability. The trial judge did so on a number of bases, including the evidence that Mr. Nguyen held the victim down while he was shot on the table. In addition, the evidence disclosed that the shooter aimed but did not fire the final shot to the victim’s neck until after Mr. Nguyen said something to him. In our view, considering all the circumstances, including Mr. Nguyen’s role in bringing Mr. Situ and the victim into contact at the billiard/gambling hall, and in addressing Mr. Situ immediately before the final shot was fired, there was ample evidence to allow the trial judge to draw the inference that Mr. Nguyen was “the boss” during the event.

[7] The appellants also appeal their 15-year sentences. In our view, subject to the discussion that follows about a further ground of appeal by Mr. Situ, those sentences were well within the appropriate range in light of the respective roles the two appellants played in this horrific shooting that occurred in a public place and rendered the victim quadriplegic.

[8] The trial judge credited Mr. Situ on a 1:1 basis for his 22 months of pre-trial custody rather than applying the 2:1 credit that was common at the time. In doing so, the trial judge described the credit as a “bonus”. He also referred to the fact that Mr. Situ committed this crime while serving a conditional sentence for aggravated assault with a knife. Even accepting the argument that these references constituted an error in principle, in our view, the global sentence imposed by the trial judge was well within the appropriate range.

[9] Mr. Situ’s conduct in committing a violent crime while serving a conditional sentence for another violent crime is an aggravating factor that the trial judge was entitled to take into consideration in determining an appropriate sentence. Such conduct demonstrates that an accused has limited potential for rehabilitation and may not be a candidate for early release, two foundational reasons for the then norm of enhanced credit for pre-trial custody. Finally, Mr. Situ served the remaining three months of his conditional sentence while in pre-trial custody for this offence. We would not give effect to this ground of appeal.

[10] In the result, the appellants’ appeals are dismissed.

RELEASED: “SEL” Oct. 19, 2010 “K. Feldman J.A.” “S.E. Lang J.A.” “H.S. LaForme J.A.”