Court of Appeal for Ontario

Date: 2018-07-17 Docket: C65297

Judges: Benotto, Trotter and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Phuc Xuan Dinh Appellant

Counsel

Phuc Xuan Dinh, acting in person Vanita Goela, for the respondent Matthew Gourlay, duty counsel

Heard and released orally: July 10, 2018

On appeal from: The conviction entered on January 25, 2018 and the sentence imposed on March 27, 2018 by Justice Kevin Sherwood of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant appeals from his conviction for possession of marijuana for the purpose of trafficking and from his sentence of six months' imprisonment.

The Conviction Appeal

[2] We do not see any merit in the conviction appeal. The appellant testified and effectively admitted that he knew that one of the occupants in the car he was driving was carrying marijuana. He also admitted that he could have asked this person to leave. The appellant eventually testified that he did ask this person to leave, but the trial judge disbelieved him on this point specifically, and on other aspects of his evidence. We see no basis to set aside these credibility findings.

[3] The appeal from conviction is dismissed.

The Sentence Appeal

[4] A sentence must be proportionate to the gravity of the offence and the responsibility of the offender. In our view, the sentence imposed failed to reflect the appellant's peripheral role in this offence, especially given the amount of marijuana involved.

[5] Accordingly, leave to appeal is granted and the sentence is reduced to one of time served. All ancillary orders will remain in place.

"M.L. Benotto J.A."

"Gary T. Trotter J.A."

"David M. Paciocco J.A."