Court of Appeal for Ontario

Citation: R. v. Bhatti, 2013 ONCA 20

Date: 20130116

Docket: C54365

Weiler, Blair and Rouleau JJ.A.

Between

Her Majesty the Queen

Respondent

and

Iftikhar Bhatti

Appellant

Counsel: Mark Halfyard, for the appellant Shawn Porter, for the respondent

Heard and released orally: January 10, 2013

On appeal from the sentence imposed on September 28, 2011 by Justice H.W. Allen of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] Over a period of approximately 3 months, the appellant purchased six tractor trailer loads worth of stolen property (commercial goods) with the intention of re-selling them at a profit. Midway through his trial for possession of stolen property the appellant pled guilty to four of the counts against him. For sentencing purposes, the parties agreed the retail value of the goods was $500,000. All the property was eventually recovered and returned to its rightful owners. The trial judge sentenced the appellant to 12 months’ imprisonment plus three years’ probation.

[2] The appellant seeks leave to appeal his sentence and submits that the trial judge erred in principle in not imposing a conditional sentence. The appellant is 55 years old. He had no prior criminal record, and owned and operated a textile business for 25 years prior to losing his job on account of his conviction. He has five children. Three live with him and a fourth, who lives with her mother, has Downs syndrome. He assists with her care on weekends. The appellant suffers from a number of back and gastro-related medical issues.

[3] The appellant says the trial judge made two errors in principle:

(1) He overemphasized the importance of general deterrence, particularly given the appellant was a first-time offender;

(2) He erred in taking judicial notice of the prevalence of tractor trailer thefts in the community, when it was not even argued by the Crown nor was the defence given an opportunity to respond to this issue, and in relying on it as an aggravating factor.

[4] In the course of exchanges with counsel, the trial judge made it clear that his principle concern was general deterrence. He indicated that with respect to possession of stolen goods of this magnitude and character, general deterrence was very significant. We do not view his comments, respecting the extent of tractor trailer theft and his personal knowledge in that regard, as an indication he used this extent of tractor trailer theft as an aggravating factor. Rather, he used it as an indicator of the need for general deterrence respecting crimes of this nature.

[5] Nor are we of the opinion that he over emphasized general deterrence. Although we acknowledge that there were a number of mitigating factors, the sentencing judge considered them in reaching his conclusion. This was not a crime that arose out of the appellant’s need but out of greed and it involved a crime of significant magnitude over a period of several months. We are of the opinion that the trial judge did not err in principle. The sentence he imposed was within the range and it was open to the trial judge in the circumstances not to accede to the defence request for a conditional sentence. We see no error in this regard.

[6] Accordingly leave to appeal sentence is granted but the appeal as to sentence is dismissed.

“K.M. Weiler J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”