R. v. Luong, 2011 ONCA 780

CITATION: R. v. Luong, 2011 ONCA 780

DATE: 20111213

DOCKET: C53825

COURT OF APPEAL FOR ONTARIO

Sharpe and Epstein JJ.A., and Pardu J. (ad hoc)

BETWEEN

Her Majesty the Queen

Appellant/Applicant

and

Cuong Luong

Respondent

Dena Bonnet, for the appellant

Mark Halfyard, for the respondent

Heard: December 7, 2011

On appeal from the sentence imposed by Justice Christopher M. Speyer of the Superior Court of Justice, dated December 9, 2010.

ENDORSEMENT

[1] The Crown applies for leave to appeal, and, if leave is granted, appeals the sentence imposed by Speyer J., on a guilty plea to possession of a loaded restricted firearm and possession of a firearm contrary to a prohibition order.

[2] This was the respondent’s second conviction for possession of a loaded restricted firearm and pursuant to s. 95(2) of the Criminal Code, he was subject to a mandatory minimum sentence of five years.

[3] The sentencing judge accepted the joint submission of a sentence of five years plus a one year period of probation and a weapons prohibition order for life.

[4] The reasons for sentence clearly express his intention to impose a sentence of five years, in accordance with the joint submission and in keeping with the legal minimum. It was agreed that the respondent should be given a credit of 33 months for the 16.5 months he spent in pre-trial custody. To yield a sentence of five years, the sentence would have to be time served plus 27 months. However, Crown counsel made a mathematical error in his submissions and asked for a sentence of time served plus 17 months. As the sentencing judge did not catch the error, he imposed the sentence as requested by the Crown – a sentence that was, as a result, ten months less than he intended and that which was required by law.

[5] Six weeks later, the error was discovered and the Crown brought an application before the sentencing judge to amend the sentence. The application was heard on April 18, 2011. The sentencing judge acknowledged the error as being a mathematical one but held he was functus officio and therefore did not have the jurisdiction to correct it. His view was that an appeal was the only way to set matters straight.

[6] On appeal, the Crown submits that ten months ought to be added to the sentence in order to reflect the intention of the sentencing judge and not be in contravention of s. 95(2)(a)(ii) of the Code.

[7] The respondent, relying on new evidence that was admitted on consent, argues that correcting the error by adding ten months to his sentence would cause him serious prejudice. He has been detained in a provincial facility for nearly one year and the addition of 10 months would require his transfer to a federal penitentiary. The respondent says that, among other things, this would disrupt the steps he has taken toward his rehabilitation, the primary one being the progress his has made toward getting credits toward his high school diploma.

[8] Two things are clear. First, a mistake has occurred that has adversely affected the respondent. Second, the sentence that resulted from the calculation error is illegal and cannot stand.

[9] In our view this unfortunate situation must be resolved by the addition of ten months to the sentence. This not only yields a sentence that reflects the joint submission and the actual sentence the sentencing judge intended to impose but also yields a sentence that that is consistent with the mandatory minimum that the Code requires. We accept that the respondent could be adversely affected by a transfer to the penitentiary at this stage, but, in our view, that prejudice does not permit us to impose a sentence that is less than the legal minimum. We also note that while in the provincial system he has been convicted of a weapons offence. Moreover, counsel agree that in the federal system there is a possibility of his being granted early parole.

[10] Both parties submit that if the sentence is increased by ten months, as we say it must be, the period of probation should be quashed. We agree. Pursuant to s. 731(1)(b), of the Code a probation order is not available where the offender is sentenced to incarceration for a term exceeding two years.

[11] For these reasons, leave to appeal sentence is granted and the appeal is allowed. The sentence imposed is set aside and replaced by a sentence of time served plus 27 months plus a lifetime weapons prohibition order.

“Robert Sharpe J.A.”

“G.J. Epstein J.A.”

“G. Pardu J. (ad hoc)