CITATION: R. v. Carty, 2015 ONSC 8144
Court File No. 11-09099
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ERIC CARTY
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE M. FUERST
on December 7, 2015, at NEWMARKET, Ontario
APPEARANCES:
M. Rumble
Counsel for the Crown
J. Halajian
Counsel for the Crown
C. Bottomley
Counsel for Eric Carty
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE
1
Transcript Ordered:
April 13, 2016
Transcript Completed:
April 14, 2016
Ordering Party Notified:
April 14, 2016
R E A S O N S F O R S E N T E N C E
FUERST, J. (Orally):
Background
Eric Carty originally stood trial for the first degree murder of Bich Ha Pan and the attempted murder of Hann Pan. Part way through a trial with multiple co-accused, and after many weeks of evidence, Mr. Carty’s lawyer fell seriously ill. When the lawyer could no longer carry on as counsel, a mistrial was ordered in respect of the charges against Mr. Carty.
Now, months after the mistrial and with new counsel in place, Mr. Carty resolved the charges against him by a plea of guilty to the offence of conspiracy to commit the murders of Mr. and Mrs. Pan.
The issue is the appropriate sentence for that offence.
The Circumstances of the Offence
In the late summer to early fall of 2010, Jennifer Pan determined to have her parents, Bich Ha Pan and Hann Pan, murdered. She contacted Lenford Crawford, who was an associate of her boyfriend, Daniel Wong. Mr. Crawford agreed to help her. He in turn contacted his friend, Eric Carty.
On October 27th, 2010 Mr. Carty agreed to help carry out the plan. Specifically, he would recruit the persons to enter the Pans’ Markham home, he would provide a vehicle, and he would attend at the house.
Mr. Carty began, almost immediately, to make inquiries about a car rental. Within a few days, he contacted a close friend, David Mylvaganam. He told Mr. Mylvaganam that they would be paid $10,000 for murdering Mr. and Mrs. Pan, and that Mr. Mylvaganam would receive the entire amount if he committed both murders himself. Mr. Mylvaganam agreed.
Mr. Carty and Mr. Crawford had several conversations about the plan. Initially, the murders were to occur on November 3rd, 2010. Mr. Carty told Mr. Crawford that he wanted $2,000 to be provided upon entry into the Pan house. When Mr. Crawford was unable to reach Mr. Carty on the evening of November 3rd, Ms. Pan cancelled the plan for that night.
Two days later, Mr. Mylvaganam told Mr. Carty that he needed a cheap new firearm. Mr. Carty and Mr. Crawford had further discussion about the plan.
On November 8th, 2010, Mr. Carty and Mr. Crawford decided that the plan would be carried out that night. Mr. Crawford communicated this to Ms. Pan. Early that evening, Mr. Carty advised Mr. Mylvaganam. He then drove from Mississauga to Rexdale to meet with Mr. Mylvaganam.
Shortly after nine o’clock p.m., Mr. Carty drove Mr. Mylvaganam and at least one other man to the Pan home. Mr. Carty called Ms. Pan en route to ensure that the front door of the house was unlocked.
The men arrived in the area of the Pan home at 10:05 p.m. Mr. Carty contacted Ms. Pan to tell her that they were there, then parked in the laneway behind the Pan home. Less than three minutes later, three men, each armed with a firearm, entered the front door of the Pan home. There is no direct evidence that Mr. Carty was one of the men.
One of the men came out of the house at 10:30 p.m. and returned to the vehicle. The other two men followed two minutes later. Mr. Carty then drove the vehicle back to Rexdale.
While the men were in the house, one of them shot Ms. Pan three times, once in the back of her head, once at the base of her neck, and once at the top of her shoulder, and shot Mr. Pan twice, once in the shoulder and once in the face. Mrs. Pan died. Mr. Pan survived.
Victim Impact Information
In his Victim Impact Statement, Mr. Pan expresses that he feels that he too is dead. He misses his wife of almost 30 years. He is sad and lonely all the time. He has constant nightmares about what happened, and has been unable to return to the house. He is in pain because of the injuries he suffered. He is unable to work. He finds no joy in his old hobbies.
The Pans’ son, Felix Pan, wrote in his Victim Impact Statement that he suffered the loss of his mother, who was his emotional foundation. He also suffered the loss of friends who could not cope with his situation. While he has tried to keep moving forward, he is stalked by social media information about the case. He has found it difficult to build a new life.
The Circumstances of Mr. Carty
Mr. Carty is 35 years old. His father was killed in a traffic accident when Mr. Carty was 15. Mr. Carty then dropped out of high school in grade 10. While still a youth, he embarked on a life of crime.
In 1999, Mr. Carty was convicted, as an adult, of possession of a prohibited weapon and discharging a firearm with intent to endanger life. He was sentenced to five years in the penitentiary. Ten years later, in January 2009, he was convicted of carrying a concealed weapon, possession of a prohibited or restricted firearm with ammunition, and unauthorized possession of a firearm in a motor vehicle. After credit for 25 months of pre-sentence custody, he received a sentence of a further nine months in jail, with a firearms prohibition order. That sentence expired in October 2009.
Clearly, neither the jail sentences nor the firearms prohibition order had any impact on Mr. Carty. In December 2009, he committed a first degree murder in Toronto. Although the murder occurred on December 6, 2009, Mr. Carty was not arrested until January 27, 2011. He was found guilty by a jury on November 22nd, 2013, a verdict that he is appealing. He was sentenced on January 23rd, 2014, to life imprisonment with no eligibility for parole for 25 years. His parole eligibility date is January 28, 2036.
There is no dispute that Mr. Carty became involved in the conspiracy to murder Mr. and Mrs. Pan after he committed the Toronto murder, but before his arrest for it.
He was arrested in respect of the Pan shootings on April 25th, 2011.
The Positions of the Parties
Crown and defence counsel jointly submit that Mr. Carty should receive a sentence of 18 years in jail. On behalf of Mr. Carty, Mr. Bottomley takes no issue with Crown counsel’s request for a lifetime s. 109 order, a DNA order, and a non-communication order.
On behalf of the Crown, Ms. Rumble contends that Mr. Carty should receive no pre-sentencing custody credit, because that custody has been attributed to his life sentence for the Toronto murder. She also submits that denunciation and deterrence necessitate that his parole eligibility be delayed until he has served one half his sentence.
On behalf of Mr. Carty, Mr. Bottomley submits that but for the sentence for murder, Mr. Carty could receive credit of 1.5:1 for his pre-sentencing custody in respect of this offence. Accepting that the sentence for the Toronto murder began to run on the day of his arrest for it, there is a remaining factor of .5:1 that should be applied to the sentence for the conspiracy offence.
Mr. Bottomley opposes the Crown’s request for delayed parole eligibility. He argues that the Parole Board will be in the best position to assess Mr. Carty’s suitability for release.
Analysis
The objectives of sentencing long recognized at common law have been codified in s. 718 of the Criminal Code. They are the denunciation of unlawful conduct, deterrence both general and specific, the separation of the offender from society where necessary, rehabilitation, reparation for harm done to the victims or the community, and promotion of a sense of responsibility in offenders and acknowledgement of the harm done.
Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances. It also requires that a sentence be similar to those imposed on similar offenders in similar circumstances.
Sentencing decisions for the offence of conspiracy to commit murder are not numerous. Those that do exist establish a wide range of sentence for this offence. Previous decisions have emphasized that deterrence and denunciation are the primary considerations in sentencing, at least in part because a conspiracy to commit murder is not something done in the heat of passion, but rather involves planning and deliberation. See R. v. Brown, [1984] O.J. No. 1148 (Ont. H.C.J.); R. v. Chase (1979), 10 C.R. (3d) S-1 (Ont. H.C.J.).
In determining the appropriate sentence for Mr. Carty, I accord primacy to the objectives of denunciation and deterrence, both general and specific. The need to separate Mr. Carty from society is also a consideration.
The aggravating factors in this case are substantial. They include:
Mr. Carty’s participation in the conspiracy was not brief or fleeting, but rather extended over a period of about two weeks. His participation was calculated and determined.
Mr. Carty played a pivotal role in the plot to commit the murders. He recruited Mr. Mylvaganam, who was one of the three armed men who entered the house. Mr. Carty agreed to and did drive at least two of the men to the Pan home, where he waited while they shot Mr. and Mrs. Pan. He then facilitated their escape by driving them from the scene.
The carrying out of the conspiracy had devastating consequences. Mrs. Pan was killed in the safety of her own home. She was lost forever to her husband and son. Mr. Pan suffered life-altering injuries. He is but a shell of his former self.
Mr. Carty is a violent offender. His previous criminal record features multiple firearms offences. He is serving a sentence for first-degree murder. His criminal background raises substantial concern about specific deterrence.
Mr. Carty entered into this conspiracy after he committed a first degree murder in Toronto, and while he was still at liberty from arrest for that offence.
There is little that can be said in mitigation, other than that Mr. Carty’s plea of guilty is a sign of remorse and acceptance of responsibility for his actions. It is by no means an early guilty plea. That said, his guilty plea spares Mr. Pan and his son from having to testify again. It also avoids a trial that I am confident would be long and costly for the administration of justice.
The plot hatched by Jennifer Pan to have her parents murdered is the epitome of evil. The fact that she was able to find other persons prepared to become involved in and carry out the plot shocks the conscience of any right-thinking member of the community. Given Mr. Carty’s role in the conspiracy and his personal circumstances, I agree with Crown and defence counsel that a sentence of 18 years in jail is entirely appropriate. Indeed, in the absence of a guilty plea, this offence of conspiracy could have attracted a sentence of life imprisonment for Mr. Carty.
Mr. Bottomley argues that Mr. Carty is entitled to a reduction of the sentence for time in pre-trial custody factored on the basis of .5:1. I am unable to accept that submission. Mr. Carty received full credit against his life sentence for the Toronto murder for every day he was in custody since his arrest for that offence, in accordance with s. 746 of the Criminal Code. That statutory provision provides a specific allocation of time spent in custody in the case of an offender sentenced to life imprisonment. Any time in pre-sentence custody for the conspiracy offence is overlapping, and has already been allocated to the sentence for the murder by operation of s. 746. It is not available to be allocated a second time, in whole or by some factor.
Even if I am wrong about this, s. 719(3) provides that credit for pre-sentence custody shall be limited to “one to one”. S. 719(3.1) permits a court to enhance that credit to 1.5:1, but only if “the circumstances justify it”. The circumstances of this particular case do not justify the award of any enhanced credit in respect of the conspiracy offence. Mr. Carty has a previous criminal record for multiple firearms offences. He committed the conspiracy offence at a time when he was in the community only because he had yet to be arrested for a murder of which he has since been convicted. By the time of his arrest for the conspiracy offence, he was already in custody awaiting trial in respect of the Toronto murder. His particular circumstances do not give rise to the concern about disproportionality identified by the Supreme Court of Canada in R. v. Summers, 2014 SCC 26. Rather, the circumstances of this case are the very kind that would risk bringing the administration of justice into disrepute if enhanced pre-sentencing custody credit was awarded.
I turn next to the issue of delayed parole eligibility. S. 743.6(1) of the Criminal Code empowers a court to order that an offender serve one half of his or her sentence or 10 years, whichever is less, before being eligible for parole, if the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires. Subsection 2 provides that the paramount principles which are to guide the court are denunciation and specific or general deterrence, with rehabilitation of the offender being subordinate.
In R. v. Zinck, 2003 SCC 6, the Supreme Court of Canada held that the power to delay parole should not be applied in a routine manner. The decision to delay parole remains out of the ordinary. The Crown bears the burden of demonstrating that this additional punishment is required.
As I have already articulated, this conspiracy was one to carry out the murders of two people in their own home at night. Mr. Carty’s involvement extended over a period of almost two weeks. He played an integral role in the conspiracy. The conspiracy culminated in execution-style shootings that left one of the targets of the conspiracy dead and another seriously injured. The shootings devastated the Pan family. Mr. Carty has a prior criminal record for firearms offences, and he participated in the conspiracy while he was at liberty from arrest for a murder he committed earlier in Toronto.
Having given priority to general and specific deterrence and denunciation, and having considered all the criteria and principles relevant to sentencing, based on the Agreed Statement of Fact as to the circumstances of the commission of the offence and the additional information provided about the character and circumstances of Mr. Carty, I am satisfied that an order delaying Mr. Carty’s parole eligibility until he has served one half the sentence is necessary, both to express society’s denunciation of the offence, and to meet the objectives of denunciation, and specific and general deterrence.
Conclusion
Mr. Carty, please stand. I sentence you to 18 years in jail concurrent to the sentence being served with no credit for pre-sentence custody. Under s. 736(1) of the Criminal Code, I order that your eligibility for parole be delayed until you have served one half of your sentence.
There is a s. 109 order for life, and a DNA order. Under s. 743.21 I order that while you are in custody you have no contact with Hann Pan, Felix Pan, Jennifer Pan, Daniel Wong, Lenford Crawford, or David Mylvaganam.
I recommend that the correctional authorities give consideration to your request to serve your sentence in British Columbia or Nova Scotia. You may be seated.
Is there anything that needs to be clarified or modified?
MR. BOTTOMLEY: No, thank you, Your Honour.
MS. RUMBLE: No, thank you, Your Honour.
THE COURT: I have endorsed that Mr. Carty is sentenced to 18 years in jail. There is no credit for pre-sentence custody. Under s. 736(1) of the Criminal Code, eligibility for parole is delayed until one half the sentence has been served. There is a s. 109 order for life and a DNA order. There is a s. 743.21 non-communication order with the persons named on the record.
MS. HALAJIAN: Your Honour, if we could vacate [indiscernible] Crown motions [indiscernible].
THE COURT: All right. First I will add a recommendation to serve the sentence in British Columbia or Nova Scotia, and that should be added to the warrant, please, Madam Registrar. All right. So there is a list of dates that need to be vacated, then.
MS. HALAJIAN: Yes. I believe it’s the weeks of March 7th, April 4, April 11, and May 9.
THE COURT: Sorry, March 7, April 4.
MS. HALAJIAN: April 11 and May 9. And then we were to start jury selection on September 12.
THE COURT: All right. So I have added that there is a recommendation to serve the sentence in British Columbia or Nova Scotia, and the following dates are vacated: March 7th, 2016 week; April 4th week; April 11th week; May 9th week; and September 12, 2006 [sic] onward. Does that cover it? Anything further?
MR. BOTTOMLEY: No, Your Honour. I thank my friends for their consideration in this matter.
THE COURT: All right. I would like to thank all of you, because I know a great deal of effort went into this resolution and a lot of time was spent in discussions between counsel in a most professional way. So thank you all very much.