COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Skanthavarothayar, 2012 ONCA 392

DATE: 20120611

DOCKET: C50038 C50039

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pratheepen Skanthavarothayar

Jayanthan Palaguru

Appellants

Apple Newton-Smith, for the appellant Skanthavarothayar

and P. Andras Schreck, for the appellant Palaguru

Susan Magotiaux, for the respondent

Heard: Heard May 23, 2012

On appeal from the convictions entered on September 25, 2008, by Justice Wailan Low of the Superior Court of Justice and on the sentence imposed by Justice Low dated February 20, 2009 for the appellant Palaguru.

ENDORSEMENT

[1] The appellants were among a group of attackers who set upon and beat two men sitting in a parked car. The attack was vicious and pre-meditated and intended to intimidate the victim so that he would not testify at an upcoming murder trial. Following a trial by judge and jury, each appellant was convicted of several offences. At the end of oral argument, we informed counsel that the appeal would be dismissed with brief reasons to follow. Here now are those reasons.

[2] The appellant Mr. Skanthavarthayar was convicted of two counts of assault with a weapon, aggravated assault, and attempting to obstruct justice. He was given a global sentence of four years' imprisonment, less time served in pre-trial custody, credited on a 2:1 basis. His appeal is against conviction only.

[3] The appellant Mr. Palaguru was convicted of assault with a weapon, assault, aggravated assault, attempting to obstruct the course of justice, and failing to comply with a condition of recognizance. He pleaded guilty to the last charge. For these offences, he too received a global sentence of four years' imprisonment less time served in pre-trial custody, credited on a 2:1 basis. He appeals against conviction and sentence.

[4] In the appeal against conviction, the appellants raise one issue: Did the trial judge err in failing to give an adequate Vetrovec warning in her charge to the jury?

[5] The Crown's main witness at trial, Lingathasan Suntharamoorthy, gave a full account of the attacks and threats and identified the appellants as attackers. However, Mr. Suntharamoorthy had a long criminal record that included many violent offences, including manslaughter, and a long history of lying to the police. In the course of his testimony, he was also frequently inconsistent. Everyone agreed that in his case a Vetrovec caution was necessary, to alert the jury that there were good reasons to doubt the witness's veracity.

[6] The Vetrovec warning that the trial judge gave to the jury was consistent with the model set out in Justice Watt's Standard Jury Instructions. However, appellants' counsel submit that the trial judge failed to adequately explain to the jury why Mr. Suntharamoorthy’s evidence required their special scrutiny. They also allege that the trial judge gave the jury misleading instructions on confirmatory evidence, and that, overall, the effect of her Vetrovec caution succeeded only in undermining the theory of the defence.

[7] We disagree. In the context of this case the Vetrovec caution was more than adequate. The jury could not have been under any misunderstanding about how they were to approach the evidence of Mr. Suntharamoorthy, whom the trial judge repeatedly described as unsavoury.

[8] Nor did the trial judge mislead the jury in any way. In saying this, we wish to emphasize that we do not take so narrow a view of the principle of materiality enumerated in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104 as counsel for the appellants have urged upon us.

[9] When looked at in the context of the case as a whole, we consider that the few pieces of confirmatory evidence cited by the trial judge were capable of bolstering relevant aspects of Mr. Suntharamoorthy’s account. In other words, they were capable of strengthening the jury’s belief that Mr. Suntharamoorthy was telling the truth about the appellants’ involvement in the assault upon him. This evidence was therefore not misleading.

[10] While identity was the central issue in the trial, there were other material facts in dispute as well. Moreover, the trial judge explicitly charged the jury that there was "no confirmatory evidence" with respect to the issue of identity, and her charge ended with a lengthy, detailed review of the frailties and inconsistencies in Mr. Suntharamoorthy’s testimony, all going to suggest why he should not be believed.

[11] For these reasons, the appeals against conviction must therefore be dismissed.

[12] As to the sentence appeal, the appellant Mr. Palaguru submits that the trial judge erred by failing to consider mitigating factors, by failing to consider the fact that the appellant had been subject to strict bail conditions before trial, and by placing too-great emphasis on aggravating factors.

[13] In the course of the sentencing hearing, both Crown and defence counsel referred the trial judge to a pre-sentence report on Mr. Palaguru. The pre-sentence report recited some of the details of Mr. Palaguru's childhood in Sri Lanka, a time and place marked by such fear and violence that the family was forced to flee the country for Canada.

[14] In light of this relevant information relating to the circumstances of the offender, we believe that the trial judge erred in stating without qualification that there were “no mitigating factors” and in observing that "[the] Pre-sentence Report discloses unremarkable antecedents."

[15] Still, in our view, the trial judge did not err in finding on the facts of this case that the predominant principles and purposes of sentence were those of denunciation and specific and general deterrence. There was ample evidence to support the trial judge’s finding that the appellant's attack upon the victim was a cowardly, vicious, and pre-meditated act, designed to dissuade the victim from testifying in a murder trial. It was thus open to the trial judge to conclude on the facts of this case, including a lengthy criminal record disclosing 13 convictions going back to 2000, that there were no mitigating factors sufficient to cause her to ameliorate the appellant's sentence.

[16] In his written submissions the appellant also contends that the trial judge's failure to consider his restrictive bail conditions constitutes an error in principle. Although this ground of appeal was not advanced in oral argument, we wish to address it briefly here. While it is true that “a trial judge faced with an offender who has spent time on bail under house arrest should adopt a flexible approach, . . . the amount of credit and the manner in which it is to be taken into account as a mitigating factor is a matter for the trial judge.” R. v. Downes, 2006 3957 (ON CA), [2006] O.J. No. 555 (C.A.) at para. 36. Here, in this case, the trial judge was aware of the appellant's restrictive bail, and equally aware that he had breached his bail conditions three times.

[17] In our view, the global sentence of four years' imprisonment was a fit one in all the circumstances, in the sense that it was not clearly unreasonable. The sentence recognizes the fundamental principle of sentencing, proportionality, as set out in s.718.1 of the Criminal Code. It also honours the principle of parity in that it is similar to the sentence imposed on Mr. Skanthavarothayar for similar offences committed in similar circumstances. We would not therefore intervene to vary the sentence. Accordingly, the appeal against sentence is also dismissed.

“E.E. Gillese J.A.”

“S.E. Pepall, J.A.”

“E. Ducharme J.A.”