WARNING
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 (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a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
Justice system participants
(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or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is necessary for the proper administration of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.
Limitation
(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.
CITATION: R. v. Terpstra, 2011 ONCA 500
DATE: 20110707
DOCKET: C52463
COURT OF APPEAL FOR ONTARIO
Moldaver, MacPherson and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Anthony Terpstra
Appellant
J. Scott Cowan, for the appellant
Joanne K. Stuart, for the respondent
Heard and released orally: July 5, 2011
On appeal from the sentence imposed on June 28, 2010, by Justice John F. McGarry of the Superior Court of Justice, sitting with a jury.
ENDORSEMENT
[1] The appellant was convicted of the offences of counselling murder and conspiracy to commit murder. His girlfriend and co-accused, Serrena Benninger, was convicted of the same offences. The offences related to a joint plan to hire a hitman to kill the appellant’s wife. The plan went awry when a man Benninger approached to provide assistance reported the plan to the police. A police officer went undercover, pretending to be a hitman, and met and communicated with both the appellant and Benninger about the plan. Videos, audio recordings, and text messages sealed their fate and a jury found them guilty of the two offences.
[2] The trial judge sentenced the appellant to 6 years’ imprisonment, less six months’ credit for pre-trial custody and stringent bail conditions. He sentenced Benninger to 3.5 years, less 12 months’ credit for pre-trial custody and stringent bail conditions.
[3] The appellant appeals his sentence. He submits that the trial judge erred in finding that he was the “prime mover” behind the offences and that he “used” Benninger as part of his plan to murder his wife. He contends that there should have been parity in the sentences for the two accused, which was the position taken by Crown counsel in his sentencing submissions.
[4] We do not accept these submissions. The appellant was the prime mover in the plan – the intended victim was his wife, the motive was greed (to avoid the financial consequences of a divorce), and the appellant advanced the money for the planned execution. Moreover, the appellant chose to involve his girlfriend, who the trial judge found to be vulnerable, in virtually every aspect of the scheme – i.e. he “used” her. Finally, the fact that the intended victim was the appellant’s wife and the mother of his two children justifies, in itself, a higher sentence than the one imposed on his girlfriend.
[5] Leave to appeal sentence is granted and the appeal from sentence is dismissed.
“M.J. Moldaver J.A.”
“J.C. MacPherson J.A.”
“G.J. Epstein J.A.”