R. v. Pewngam

R. v. Pewngam Collection Decisions of the Court of Appeal Date 1998-11-16 Docket numbers C28280 Judges McMurtry, Roy; Catzman, Marvin Adrian; Charron, Louise Vivianne Subject Criminal Decision Content DATE: 1998116 DOCKET: C28280 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) v. KHUMJOHN PEWNGAM (Appellant) BEFORE: McMURTRY C.J.O., CATZMAN and CHARRON JJ.A. COUNSEL: Irwin Koziebrocki, for the appellant Erika Chozika, for the respondent HEARD: November 5, 1998 ENDORSEMENT [1] The appellant was convicted of seven counts of possession of property obtained by crime and was sentenced to a term of imprisonment of eighteen months to be followed by a two-year term of probation. He appeals against conviction and seeks leave to appeal sentence. [2] The appellant raises two issues on his appeal against conviction. First, he argues that, in the circumstances of this case, the trial judge erred in relying on the doctrine of recent possession to infer guilty knowledge. Second, he argues that there was insufficient evidence to support the trial judge's finding that the appellant had control over the property in question. Doctrine of recent possession [3] It is unfortunate that the trial judge did not provide an analysis of the evidence that led her to conclude that the possession in this case was sufficiently recent to bring the doctrine of recent possession into play. In our view, there is some doubt as to the applicability of this doctrine with respect to some of the property. Nonetheless, we are of the view that, even if the trial judge may have erroneously relied on the doctrine of recent possession on some of the counts, this error was of no consequence to the verdict. Irrespective of the doctrine of recent possession, the evidence from which guilty knowledge could be inferred was overwhelming. We are satisfied that, having regard to the totality of the evidence, the only inference which could reasonably be drawn by the trial judge was that the appellant knew that the property in question was stolen. Control [4] In our view, the evidence amply supported the trial judge's finding on the issue of control. We see no reason to interfere. Sentence [5] The appellant submits that the trial judge erred in the following respects: a) she considered the fact that there was a trial as an aggravating factor; b) she interpreted the appellant's consistent denial of guilt as evidence of lack of remorse; and c) she took the view that a conditional sentence was not appropriate for this kind of offence. The appellant seeks an order substituting a conditional sentence for the term of imprisonment. [6] We do not read from the trial judge's reasons that she considered the plea of not guilty as an aggravating factor. She was simply relating this circumstance in the context of her finding that there was no remorse. This latter finding is supported on the evidence, including the pre-sentence report. Finally, the trial judge did not conclude that a conditional sentence would never be appropriate for this type of offence. Rather, she concluded that it would not be appropriate for these offences. [7] In the absence of an error in principle, the trial judge's decision that the term of imprisonment should not be served in the community should be afforded the same deference as the exercise of her discretion on the quantum of sentence. We see no reason to interfere with the sentence. [8] For these reasons, the appeal against conviction is dismissed. Leave to appeal sentence is granted but the appeal is dismissed.