Court of Appeal for Ontario

Citation: R. v. Shi, 2015 ONCA 646 Date: 2015-09-24 Docket: C60009

Judges: Feldman, MacPherson and Miller JJ.A.

Between:

Her Majesty the Queen Appellant

and

Fosheng Shi Respondent

Counsel: Kevin Rawluk, for the appellant Ian Smith, for the respondent

Heard: September 11, 2015

On appeal from the sentence imposed by Justice Harvey P. Brownstone of the Ontario Court of Justice, dated January 19, 2015.

Endorsement

[1] The Crown seeks leave to appeal sentence where the sentence imposed at trial was below the statutory minimum. The respondent concedes that the sentence must be set aside. There are two issues on this appeal: what is a fit sentence and, having served the sentence that was imposed, should the respondent now be re-incarcerated?

[2] The respondent was 20 years old when, on June 18, 2013, he drove to a Bank of Montreal branch and, wearing a black ski mask, entered the bank, approached a teller, produced a black pellet gun and demanded $1000. The teller said she would have to access a lock box for that much money. The respondent then jumped over the counter. The teller gave him $2000. The respondent was apprehended a few days later because a bystander saw him pull off his mask in the getaway car and took down the licence plate number.

[3] The respondent spent six days in custody before he was granted judicial interim release on terms of house arrest. He was unable to work for most of the 18 months he spent on house arrest awaiting trial. On the first day of trial, he pled guilty to using an imitation firearm in the commission of an indictable offence. At the conclusion of the sentencing proceedings, the Crown withdrew the other two charges of robbery and disguise with intent.

[4] Prior to sentencing, the appellant’s step-father paid the bank back the $2000. When asked to speak at sentencing, the appellant expressed remorse. He had no criminal record.

[5] The Crown’s position on sentence at trial was 18 months’ imprisonment, while the defence asked for a sentence of 90 days to be served intermittently. While acknowledging that the offence required a mandatory minimum sentence of one year pursuant to s. 85(3) of the Criminal Code, R.S.C. 1985, c. C-46, defence counsel submitted that the minimum sentence could be reduced by crediting time spent on bail. Neither counsel brought this court’s decision in R. v. Panday, 2007 ONCA 598, 87 O.R. (3d) 1, to the attention of the sentencing judge. Panday holds that time spent under strict bail conditions is a mitigating factor on sentence, but it cannot be used to reduce a sentence below the statutory minimum.

[6] The sentencing judge imposed a sentence of 90 days to be served intermittently on weekends so that the appellant could work, to be followed by two years’ probation. He took into account the 6 days of pretrial custody on a 1.5-to-1 basis, as well as the guilty plea, the full restitution, the fact that the respondent’s parents were supportive of him, the 18 months of restrictive bail, his lack of criminal record, his young age, and his expression of remorse. The sentencing judge stated that this very serious offence required jail time, but that otherwise jail was unnecessary for the respondent and could be dangerous for him as a youthful first offender.

[7] The respondent has completed the custodial portion of his sentence.

[8] On this appeal, the respondent concedes that the sentence imposed was illegal. He asks this court to impose the minimum sentence of one year but, in all the circumstances, not to re-incarcerate him.

[9] The Crown appellant says that a fit sentence is 18 months and that the respondent should serve the balance of his time. The Crown submits that the sentencing judge overemphasized the restitution as a mitigating factor and failed to consider the seriousness of a bank robbery with a mask. In our view, the mandatory minimum sentence is the appropriate sentence for this offender in all the circumstances of the case.

[10] On our reading of his reasons, the sentencing judge well recognized the seriousness of such offences and mentioned that three years’ imprisonment may well have been imposed, were it not for the mitigating circumstances. However, the respondent was a youthful first offender. He made restitution, pled guilty, and expressed remorse, recognizing that he had done something seriously wrong. He served a few days in jail as well as 18 months of strict house arrest, which is a mitigating factor that can contribute to reducing a sentence down to the statutory minimum: Panday,at paras. 22-23.

[11] On a s. 85 conviction, the mandatory minimum of one year can be the appropriate sentence: see e.g. R. v. Burnett, 2007 ONCA 478; R. v. Clarke, 2014 ONCA 296. In our view, it was the appropriate sentence in this case.

[12] Having imposed a sentence of one year, the second issue is whether the respondent must be re-incarcerated to serve the balance of the sentence. The respondent asks the court to stay the execution of the sentence.

[13] In R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, this court held that on a Crown appeal against sentence, after correcting the sentence that should have been imposed by the trial judge and thereby giving guidance, “the court can make an appropriate practical disposition, based on current circumstances” (para. 12). The main issue is whether the principles of deterrence and denunciation require re-incarceration: Smickle, at para. 18. The court also considers the impact of re-incarceration on rehabilitation; the potential for injustice if the sentence is served; how much time has elapsed since the respondent was released, including issues of delay; the length of time to be served; and the seriousness of the offence: R. v. H.E., 2015 ONCA 531, at para. 57; and R. v. Dufour, 2015 ONCA 426, at paras. 17, 21-23, 26.

[14] The respondent provided fresh evidence on the appeal. He has fully served his 90-day intermittent sentence and is on probation. He is working and has a strong letter of reference from his employer. He has repaired relationships with his family. He is on the road to a productive life. He is still a very young man. He states that he would be devastated to have to go back to jail now. In our view, the principles of denunciation and general deterrence will be satisfied by the sentence now imposed. The principle of specific deterrence is satisfied by the consequences of the criminal justice process: that is, the 18 months of restrictive bail, the restitution made, the sentence already served, and the respondent’s current circumstances of having demonstrated his reintegration into his family and into productive society.

[15] In all the circumstances, we impose a sentence of 12 months and permanently stay the execution of that sentence.

“K. Feldman J.A.”

“J. C. MacPherson J.A.”

“B. W. Miller J.A.”