COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huh, 2015 ONCA 356

DATE: 20150519

DOCKET: C59460

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Huh

Respondent

Katie Doherty, for the appellant

Breana Vandebeek, for the respondent

Heard: May 5, 2015

On appeal from the sentence imposed on September 15, 2014 by Justice Heather E. Perkins-McVey of the Ontario Court of Justice.

By the Court:

[1] The Crown appeals the sentence imposed on the respondent. It is common ground that deference is the guiding principle of appellate review of sentences, and intervention is only permitted if the sentencing judge committed an error in principle, or imposed a sentence that is demonstrably unfit: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90.

[2] The respondent was found guilty of assault causing bodily harm under s. 267(b) of the Criminal Code, R.S.C. 1985, c. C-46. He was 21 years of age when he committed the offence. The sentencing judge imposed a conditional discharge with two years’ probation.

[3] The sentencing judge declined to impose a DNA order under s. 487.051 and a weapons prohibition order under s. 109. The respondent properly concedes that the sentencing judge erred in refusing to make these ancillary orders which, in the circumstances of this case, were mandatory.

[4] The assault committed by the respondent while he was severely intoxicated, was extraordinarily violent. The beating left the victim with facial fractures and post-concussion syndrome. He suffered brain damage with impairment in the higher executive functions. The victim was forced to withdraw from his university courses in finance. He has problems communicating in a fluent manner due to difficulties in organizing his thoughts. He also is fearful for his safety and for his future.

[5] The pre-sentence report about the appellant was not especially positive. He was presented as a multi-substance abuser in denial of his need for rehabilitation. The Crown proposed a “significant” jail sentence within the reformatory range, on the basis that, according to the pre-sentence report, the respondent had no insight into his behaviour and the public ought to be protected from him. However, the Crown did not propose a specific sentence.

[6] The sentencing judge adjourned the proceedings, at least in part in order to give the respondent an opportunity to show her that the public interest would not be offended by the imposition of a discharge.

[7] In the months between the sentencing submissions on June 2, 2014 and the sentencing date of September 15, 2014, the respondent completed 144 hours of community service. He also met with a social worker at the Centre for Addiction and Mental Health and was awaiting placement into a counselling program.

[8] Several additional positive letters of reference were filed, including from Reverend Mathias Kim. As a member of St. Andrew’s Church, the respondent had participated in a mission trip to Mexico and regularly helped organize youth activities. He had also been working at his family’s convenience store.

[9] The sentencing judge relied primarily on the sentencing objectives of individual deterrence and rehabilitation in the circumstances of young first offenders. She was impressed by the respondent’s progress, and noted that he had “gained some maturity, some insight” and demonstrated his recognition of the importance of the matter. She said:

In the circumstances I am going to grant you that conditional discharge because you have earned it, sir. You have done, as indicated, significant amount of community service, you have shown now some insight, and appropriately I am going to grant you that discharge. I’m going to place you on probation for two years, sir, because you do need that continued support and access to treatment.

[10] The respondent submits that the two-year probationary term was carefully crafted to include a curfew term during the first six months, a requirement that the respondent perform an additional 50 hours of community service and a requirement that the respondent provide a letter of apology to the complainant. The fresh evidence shows the respondent remains committed to a counselling program, has taken classes related to drug and alcohol abuse, has completed the additional 50 hours of community service, and is employed full-time. The respondent has expressed remorse for his crime.

[11] The Crown submits that the sentence imposed in this case was manifestly unfit. We agree. The sentence was not proportionate to the gravity of the offence. The conditional discharge did not reflect the degree of violence of the respondent’s assault, the seriousness of the injuries he inflicted on the victim, or the applicable sentencing principles.

[12] We adopt the observation in R. v. Wood (1975), 1975 CanLII 1410 (ON CA), 24 C.C.C. (2d) 79 (C.A.), at para 4: “[i]n cases of violence resulting in injury the requirement of general deterrence to the public militates, in almost every case, against the grant of a conditional discharge, notwithstanding considerations personal to the accused.”

In our view, a conditional discharge does not meet the public interest in this case. While a discharge may have been in the interest of the appellant, in this circumstance, it was not in the public interest. Accordingly, leave to appeal the sentence is granted, and the sentence appeal is allowed. It now falls to this court to impose what we deem to be an appropriate sentence.

[13] The respondent submits that he should not now be incarcerated and that this court should take the route in R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, where, at para. 12, Doherty J.A. endorsed the view of Green C.J.N.L. in R. v. Taylor, 2013 NLCA 42, at para 133:

... there is nothing inconsistent with saying that the sentencing judge, with the record in front of him, should have sentenced the offender to greater incarceration than he did and at the same time saying that, with what the court now knows, the application of the sentencing principles does not now require the offender actually to serve the remainder of the sentence. Unlike the sentencing judge, the court of appeal will be deciding whether the offender should actually serve the rest of his sentence with the benefit of hindsight, a perspective that the sentencing judge did not have. The corrective appellate function of giving guidance as to what the sentencing judge ought to have done can therefore be achieved while at the same time the court can make an appropriate practical disposition, based on current circumstances. [Emphasis by Doherty J.A.]

[14] Our task is to fashion a fit sentence based on current circumstances, not those at the time of sentencing. The respondent is a young offender without a criminal record. He has expressed remorse. He has served his conditional sentence thus far without incident. He has, moreover, shown a commitment to change his life for the good and has continued in that path.

[15] However, we do not agree with the respondent that no incarceration should now be imposed. This was a crime of violence that left the victim with serious and longstanding injuries. The principles of deterrence and denunciation cannot be met without a period of incarceration. The Crown has urged a period of six to eight months’ incarceration, followed by two years of probation. That appears to be at the low end of the appropriate range. Having said that, the fresh evidence shows that the respondent is a very different person today than he was when sentenced. He has taken responsibility for his actions, continued with extensive community work, obtained professional help and is drug-free. In these circumstances, we accept the Crown’s submission as to the range.

DISPOSITION

[16] We therefore set aside the sentence imposed by the sentencing judge, and exercising authority under s. 732 (1) of the Criminal Code, convict the respondent of assault causing bodily harm, and impose a sentence of six months’ incarceration, followed by a two-year term of probation. This sentence pays due regard to the principles of deterrence and denunciation, but also to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the respondent’s commendable efforts at rehabilitation. We also make the mandatory ancillary DNA and weapons prohibition orders.

Released: May 19, 2015 “EEG”

“E.E. Gillese J.A.”

“M. Tulloch J.A.”

“P. Lauwers J.A.”