R. v. Thai

R. v. Thai Collection Decisions of the Court of Appeal Date 2007-04-02 Neutral citation 2007 ONCA 240 Docket numbers C43331 Judges Sharpe, Robert J.; Simmons, Janet M.; Cronk, Eleanore Ann Subject Criminal Decision Content CITATION: R. v. Thai, 2007 ONCA 240 DATE: 20070402 DOCKET: C43331 COURT OF APPEAL FOR ONTARIO RE: HEN HAI THAI (Appellant) and HER MAJESTY THE QUEEN (Respondent) BEFORE: SHARPE, SIMMONS and CRONK JJ.A. COUNSEL: Irwin Koziebrocki for the appellant Amanda Rubaszek and Michelle Campbell for the respondent HEARD: March 23, 2007 On appeal from convictions entered by Justice N. Borkovich of the Superior Court of Justice, sitting with a jury, on November 30, 2004 and the sentence imposed on February 4, 2005. ENDORSEMENT [1] Following a jury trial before Borkovich J., the appellant was convicted of one count of conspiracy to break and enter dwelling houses and of two counts of assault with intent to steal. He was sentenced to 14 years imprisonment in addition to one year of credit for time served on the conspiracy count and to 10 years imprisonment concurrent on each of the assault with intent to steal charges. Pursuant to s. 743.6(1) of the Criminal Code, the trial judge ordered that the appellant would not be eligible for parole until he has served one half of his sentence. The appellant raises two grounds of appeal against conviction and seeks leave to appeal sentence. The Conviction Appeal i) The Vetrovec[1] Instruction [2] We do not accept the appellant’s submissions concerning the adequacy of the trial judge’s Vetrovec instruction in relation to K. D. In a preceding instruction concerning assessing the credibility of witnesses generally, the trial judge alerted the jury to the need to consider a witness’s potential interest in the outcome of the case and of “the distressing but real possibility” that a witness could fabricate evidence for personal reasons. Subsequently, within the body of the Vetrovec instruction, the trial judge twice referred to “the circumstances [in] which [D.] testified”. In addition, we note that counsel for the appellant confined his cross-examination of D. to the plea bargain issue. In these circumstances, it could not have escaped the jury’s attention that one of the concerns in relation to D.’s evidence was the possibility that he implicated the appellant in order to obtain favourable treatment for himself. [3] Further, as part of the Vetrovec caution, the trial judge told the jury explicitly that D. and the other unsavoury witness, D.R., had both acknowledged that they engage in robberies more or less as an occupation. In our view, taken as a whole, the trial judge’s instructions were adequate to alert the jury to the reasons why special scrutiny of D.’s evidence was necessary. [4] On our review of the record, there was at least some evidence at trial capable of supporting D.’s evidence. For example, D.R. testified that the appellant told him that he (the appellant) sent Mitch Orra to British Columbia because Orra was being investigated and the appellant was concerned that Orra might say something about him. Orra was one of the individuals D. implicated in the Wood Road home invasion. Further, D.R. indicated he had gotten to know D., Orra and some of the other alleged participants in the Wood Road incident through the appellant. In addition, there was some evidence confirming a significant volume of telephone traffic between D. and the appellant in 2002. [5] Given this evidence, we conclude that the trial judge did not err by telling the jury that it was for them to determine whether there was any confirmatory evidence. Moreover, we conclude that the trial judge’s statement to the jury that, in his view, there was no other evidence to confirm D.’s evidence inured to the appellant’s benefit. [6] In our view, this is not one of those exceptional cases in which we should hold that the trial judge’s exercise of discretion in crafting the form of Vetrovec instruction was unreasonable. Read as a whole, the caution that was given in this case was quite strong. The trial judge told the jury that common sense indicated there was good reason to examine the unsavoury witnesses’ evidence “with the greatest care and caution.” [Emphasis added.] He also said, “You should look for some confirmation of their evidence from somebody or something else other than what each of them has to say before you rely upon their testimony….” [Emphasis added.] [7] Further, as we have said, on our review of the record, there was some evidence capable of supporting D.’s testimony. Significantly, defence counsel at trial did not object to the form of instruction that was given. While we agree that the trial judge could have cautioned the jury in stronger terms, we are not persuaded that he committed reversible error by instructing the jury as he did. [8] We would not give effect to this ground of appeal. ii) The Trial Judge’s Review of the Evidence [9] While we agree that the trial judge could have summarized the evidence relating to the defence position at trial more thoroughly, this case turned essentially on credibility and the trial judge’s instructions set out the essence of the appellant’s position, namely that he denied any involvement in a conspiracy and in the incidents in question. Notably, defence counsel at trial did not raise the objection that is being raised on appeal. In all the circumstances, we would not give effect to this ground of appeal. [10] The conviction appeal is therefore dismissed. The Sentence Appeal [11] The Crown concedes and we agree that the trial judge erred in principle by finding that the appellant’s testimony at trial was an aggravating factor on sentencing, that the appellant was not amenable to rehabilitation as a result and therefore that the objectives of denunciation and deterrence required delaying the appellant’s parole eligibility. In our view, the trial judge also erred in failing to give any weight to the appellant’s status as a first offender. Finally, while we agree that the appellant’s role in the offences for which he was convicted justified a significantly higher sentence than the sentences given to the other participants, taking account of the foregoing factors, in our view, the disparity in the sentences imposed was too great. [12] In all of the circumstances, leave to appeal sentence is granted, the sentence imposed by the trial judge is set aside and a sentence of ten years imprisonment in addition to one year time served on the conspiracy count and eight years concurrent on each of the assault with intent to steal counts is substituted. We make no order under s. 743.6(1) of the Criminal Code. “Robert J. Sharpe J.A.” “Janet Simmons J.A.” “E.A. Cronk J.A.” [1] R. v. Vetrovec, [1982] 1 S.C.R. 811.