



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huang, 2020 ONCA 341

DATE: 20200602

DOCKET: C67911

Rouleau, Zarnett and Jamal JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Zi-Yue Huang

Appellant

Marianne Salih, for the appellant

Nicolas de Montigny, for the respondent

Heard: In-writing

On appeal from the sentence imposed on October
    3, 2019 by Justice Frank D. Crewe of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to three counts of
    robbery from two gas stations at night while wearing a mask and brandishing a
    knife. At the time of the offences, the appellant was a 28-year-old first
    offender with serious mental health issues. He was sentenced to 12 months
    imprisonment, followed by three years of probation. He now appeals against his sentence.

[2]

The appellant asserts that the sentencing judge
    erred by: (1) giving him no credit for his pre-sentence custody or time spent
    under house arrest; and (2) relying on his mental health condition as an
    aggravating sentencing factor. He claims that both errors impacted the sentence
    imposed. He submits that the appropriate sentence was 6 months, with a further
    reduction of 113 days for his pre-sentence custody.

[3]

For the reasons that follow, we agree with the
    first ground of appeal as it relates to the treatment of the pre-sentence
    custody but we do not agree with the second ground.
We
    substitute a sentence of 12 months, less credit for 75 days pre-sentence custody
    at a rate of 1.5 to 1, or 113 days credit, resulting in a sentence of 252
    days.

Analysis

(1)

The sentencing judge erred by giving no credit
    for the appellants pre-sentence custody

[4]

The appellants first ground of appeal asserts
    that the sentencing judge erred in law by giving him no credit for his pre-sentence
    custody (about 75 days) or the time he spent under house arrest (about 27
    months). He says this error impacted the sentence imposed.

[5]

The appellant says this ground is supported by
    an exchange between defence counsel, Mr. Motevalli, and the sentencing judge right
    after he imposed a sentence of 12 months imprisonment. Mr. Motevalli had asked
    whether the sentencing judge would provide the appellant credit for his pre-sentence
    custody. The sentencing judge repeated that the sentence was one year and stated
    that he would not address the issue of pre-sentence custody:

MR. MOTEVALLI: Your Honour, if I may, I think
    the only thing left is just the credit for the custody.

THE COURT: It is one year.

MR. MOTEVALLI: One year.

THE COURT: That is the sentence. Yes, that is
    the sentence.

CLERK REGISTRAR: Is there any pre-trial
    custody time.



THE COURT:  I am not addressing the issue of
    pre-trial custody, Madam Registrar.

[6]

The appellant claims that this exchange confirms
    the sentencing judge erred in law by failing to give credit for either the pre-sentence
    custody or the strict bail conditions and that this error impacted the sentence
    imposed.

[7]

The respondent concedes that the sentencing
    judge erred in not providing reasons for refusing to address pre-sentence
    custody, but asserts that this error did not impact the sentence imposed and that
    the sentence remains fit. The respondent also asserts that even if the
    sentencing judge failed to consider the appellants bail conditions, the
    sentence remains fit and should not be disturbed.

[8]

We agree that the sentencing judge erred in law by
    failing to address credit for the appellants pre-sentence custody.

[9]

Section 719(3) of the
Criminal Code
,
    R.S.C. 1985, c. C-46, gives a court discretion to consider pre-sentence custody
    in determining the sentence. Section 719(3.2) requires the court to give
    reasons for any credit granted for pre-sentence custody, while s. 719(3.3)
    requires the court to state the amount of time spent in custody, the term of
    imprisonment that would have been imposed before any credit was granted, the
    amount of time credited, if any, and the sentence imposed. The Supreme Court
    has stated that this is not a particularly onerous requirement, but plays an
    important role in explaining the nature of the sentencing process, and the
    reasons for giving credit, to the public:
R. v. Summers
, 2014 SCC 26,
    [2014] 1 S.C.R. 575, at para. 74. This same obligation to give reasons applies
    when the sentencing judge refuses to give credit for pre-sentence custody: see
R.
    v. Evans
, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 290.

[10]

Here, the sentencing judge refused, without giving reasons, to address the
    issue of pre-sentence custody. Other than repeating that the sentence imposed was
    one year and saying, 
I am not addressing the issue
    of pre-trial custody, he did not comply with ss. 719(3.2) or 719(3.3) of the
Criminal
    Code
. This was an error of law.

[11]

This error, on its own, however, does not
    justify this court interfering with the sentence. An appellate court can
    interfere with a sentence in only two situations: (1) where the sentence
    imposed by the sentencing judge is demonstrably unfit; or (2) where the
    sentencing judge commits an error in principle, fails to consider a relevant
    factor, or erroneously considers an aggravating or mitigating factor,
and
such an error impacts the sentence imposed:
R. v. Lacasse
, 2015 SCC
    64, [2015] 3 S.C.R 1089, at paras. 11, 44;
R. v. Suter
, 2018 SCC 34,
    [2018] 2 S.C.R. 496, at para. 24. In both situations, the appellate court can set
    aside the sentence and itself determine the fit sentence in the circumstances.

[12]

The respondent says that the sentencing judges error did not impact
    the sentence imposed. The respondent argues in its factum that [w]hile the
    sentence may have been arrived at through an error in principle, the sentence
    imposed was the one
intended
by the sentencing judge, because the
    quantum of sentence was arrived at with pre-sentence custody in mind (emphasis
    in original). The respondent notes that pre-sentence custody was raised during
    sentencing submissions and again right after the sentencing judge imposed the sentence,
    when the sentencing judge confirmed the sentence of one year and stated he would
    not address the issue of pre-sentence custody.

[13]

In our view, there are three possible interpretations of how the
    sentencing judge treated the pre-sentence custody:

1.

The sentencing judge took the pre-sentence
    custody into account, but did not explain the calculation.

2.

The sentencing judge intended to give no credit
    for the pre-sentence custody.

3.

The sentencing judge failed to take the pre-sentence
    custody into account after determining the fit sentence.

[14]

The respondent argues for the first interpretation; the appellant
    argues for the third interpretation.

[15]

There is no doubt force in the respondents interpretation. The
    sentencing judge knew the appellant had served some time in pre-sentence
    custody, but still imposed a 12-month sentence even when the issue of credit
    for pre-sentence custody was raised with him.

[16]

We have concluded, however, that this is not the correct interpretation
    of the sentencing judges comments, when viewed in the context of the record,
    the issues, and the submissions of counsel. As we will explain, the third
    interpretation  that the
sentencing judge erred by not
    taking the pre-sentence custody into account after determining the fit sentence
     is the only plausible interpretation.

[17]

In essence, the sentencing judge intended to adopt the respondents
    sentencing recommendation of a fit sentence of 12 months,
before
providing credit for pre-sentence custody. Most of the pre-sentence custody
    occurred
after
the Crown first recommended 12 months, a recommendation
    that the Crown later maintained even while the appellant was in custody. The submissions
    of counsel and the sentencing judges comments suggest that the credit for pre-sentence
    custody would be calculated later. But this never happened. The sentencing
    judge simply failed to consider the pre-sentence custody after determining the
    fit sentence.

[18]

The relevant context is as follows.

[19]

The appellant pleaded guilty on September 18, 2018 but sentencing
    submissions did not begin until May 15, 2019. The reason for the delay was that
    defence counsel wanted a psychiatric assessment of the appellant. The Crown
    agreed this would be useful to make a sentence recommendation, since it
    appeared that the appellants mental health issues partly informed his criminal
    behaviour.

[20]

When the parties returned on May 15, 2019, the Crown acknowledged the
    appellants mental health issues
warrant[ed] a more
    merciful sentence than might otherwise be mandated by his offences.
While
    the appellants diagnosis was unclear it was ultimately believed to be
either marijuana-induced schizophrenia or, more likely, bipolar 1
    disorder fueled by marijuana.
The Crown therefore
    suggested a sentence range of 12 to 18 months incarceration, but closer to
    12 than to 18, and then finally recommended something in the area of 12
    months. The defence sought a 90-day sentence to be served intermittently
    followed by probation. The sentencing judge stated that if he was going to consider
    imposing a sentence in line with the defence proposal, he wanted to know if the
    appellant was going to continue to see mental health professionals before he
    passed sentence. He added that the sentencing is too early and that he was
    certainly willing to consider a sentence that is less than that which [the
    Crown] has recommended, provided I can see that there have been results. The
    sentencing hearing was therefore adjourned.

[21]

In the summer of 2019, the appellants bail was revoked, and he was in
    custody for most of the summer and into the early fall. It was during this
    period that the appellant accumulated most of his pre-sentence custody  that
    is,
after
the Crown had recommended a 12-month sentence on May 15, 2019.

[22]

Sentencing submissions resumed on September 20, 2019. Defence counsel
    advised the court that the appellant was now in custody and submitted that his
    environment at home had not been supportive and had stopped him from getting
    the mental health help he needed. The sentencing judge asked defence counsel, How
    long has he been in custody now? Defence counsel at first ball parked around 135
    real days in custody, but then added an exact calculation will need to be
    made. The sentencing judge responded, We can sort that out. Even so, before
    the sentence was imposed there was no further discussion of the actual number
    of days of pre-sentence custody. Counsel on appeal agree that the actual number
    was between 75 and 77 days.

[23]

The sentencing judge then asked defence counsel for his position on
    sentence. Defence counsel now proposed less than 90 days to be served
    intermittently, so that the time that he spent in custody would be marked down
    in a certain manner. The Crowns position remained 12 months.

[24]

The sentencing judge concluded that he was not in a position at this point
    to determine a fit sentence. He stated:

I dont think it is advisable at this stage for
    me to simply say, Okay, Im going to choose a number between that sought by
    the Crown and that sought by the defence and impose that number and minus off
    the dead time.

[25]

He therefore adjourned the sentencing again to allow for the
    preparation of a pre-sentence report. The appellant remained in custody.

[26]

On October 3, 2019, the sentencing submissions continued. Once again, the
    defence sought a 90-day sentence to be served intermittently, mentioning the
    appellants pre-sentence custody without specifying the number of days. The
    sentencing judge advised that this proposal was [n]ot in the cards. He
    explained:

[Crown counsel] had considered a sentence in the
    area of 12 to 18 months, but in view of Mr. Huangs circumstances in the mental
    health issues that were at play, that perhaps I ought to consider a sentence in
    the nature of about 12 months in view of his circumstances, which is a very
    lenient sentence, 12 months. And he hasnt served anywhere approaching that .

[27]

The sentencing judge later added:

But [the appellant has] inched his way back up to
    the bottom of that range that [the Crown recommended]  looking at something in
    the nature of a year, a one-year sentence, but one that could be served in an
    institution where hes going to get some help like Ontario Correctional
    Institute, for instance.

[28]

Following this, the sentencing judge briefly retired, returned, and imposed
    the 12-month sentence.

[29]

In our view, the record as a whole establishes the following:

·

The Crown recommended a 12-month sentence as a fit
    sentence
before
the appellant served most of his pre-sentence custody and
    maintained this recommendation even
after
the appellant was in custody.

·

While the sentencing judge was initially prepared
    to consider a sentence much lower than the Crown proposed, he concluded that
    the appellant had inched his way up to the Crowns recommendation of 12
    months as a fit sentence. He found the Crowns recommendation was very lenient
    and was prepared to adopt it.

·

The sentencing judges reasons never suggested that
    he was imposing a sentence
higher
than the Crowns recommendation of 12
    months, from which he then deducted the pre-sentence custody (a number he was
    not provided) to arrive at a sentence of 12 months after credit.

·

The Crown never urged the court to give the
    appellant no credit for pre-sentence custody. The submissions of counsel and
    the sentencing judges comments suggest that the pre-sentence custody credit
    would be calculated later. But this was never done. Nothing in the record
    suggests the sentencing judge knew or calculated the amount of pre-sentence custody.

[30]

Returning to the three possible interpretations of the sentencing
    judges treatment of the pre-sentence custody in light of the record as a
    whole, we conclude that the only plausible interpretation is that the
    sentencing judge did not take the pre-sentence custody into account.

[31]

This first interpretation  that the sentencing
    judge took pre-sentence custody into account, but did not explain the
    calculation  is not plausible, for two reasons. First, it involves the sentencing
    judge imposing a sentence several months higher than either party proposed, and
    then deducting credit for pre-sentence custody to arrive at 12 months. There
    was no indication the sentencing judge intended to impose a sentence higher
    than what the Crown had proposed on May 15, 2019, before most of the
    pre-sentence custody was served. Second, there was no indication the sentencing
    judge even knew the correct length of the appellants pre-sentence custody.

[32]

The second interpretation  that the sentencing
    judge intended to give no credit for pre-sentence custody  is also not
    plausible, for three reasons. First, the Crown never sought no credit for pre-sentence
    custody. Second, the exchange between defence counsel and the sentencing judge on
    September 20, 2019 suggested that an exact calculation of pre-sentence custody
    would be made and considered later. Third, there was, in any event, no
    principled basis for denying credit in this case.

[33]

As a result, the only explanation that remains
    plausible is the third interpretation  that the sentencing judge simply failed
    to consider the pre-sentence custody when he fixed the sentence at 12 months.

[34]

The sentencing judges failure to consider the pre-sentence custody impacted
    the sentence imposed because the sentence otherwise would have been lower after
    crediting the pre-sentence custody.

[35]

This court can therefore
set aside the sentence
    and determine the fit sentence in the circumstances. In sentencing afresh, this
    court will defer to the sentencing judges findings of fact or identification
    of aggravating and mitigating factors, to the extent that they are not affected
    by an error in principle:
R. v. Friesen
, 2020 SCC 9, at para. 28.

[36]

In determining the fit sentence for the appellant, we recognize that
    this court has upheld significant sentences for convenience store robberies and
    has underscored that [a]rmed robbery of a neighbourhood convenience store is
    an extremely serious offence, and one which is of great concern to the
    community. The merchants who are operating these stores on a basis of long
    hours require protection:
R. v. Brown
, [1982] O.J. No. 74 (C.A.), at
    paras. 8-9 (four-year sentence for two counts of robbery of convenience
    stores);
R. v. Boyle
(1985), 7 O.A.C. 342 (C.A.), [1985] O.J. No. 33,
    at para. 6 (four-year sentences served consecutively on each of two counts of
    robbery of convenience stores) (the operators of convenience stores are
    vulnerable to the offence of robbery and they must be protected by the
    imposition of appropriate sentences).

[37]

Here, however, the Crown acknowledged that the appellant has serious
    mental health issues, and therefore recommended a 12-month sentence. As Crown
    counsel stated at first instance, with which we agree, this case
warrants a more merciful sentence than might otherwise be mandated by
    the appellants offences. We see no basis to depart from the Crowns
    recommendation, a recommendation accepted by the sentencing judge.

[38]

As for the time the appellant spent under house arrest, we acknowledge
    that it can be considered a mitigating sentencing factor (see
R. v. Adamson
, 2018 ONCA 678, at para.
    106). This said, it is apparent to us that the parties recommended sentences
    and the sentencing judges 12-month sentence all took into account the
    predisposition bail conditions. In any event, we consider the 12-month sentence
    to be very lenient and a further reduction on that basis is not warranted.

[39]

We therefore conclude that a sentence of 12
    months was fit but a credit for pre-sentence custody should have been applied.

(2)

The sentencing judge did not view the
    appellants mental illness as an aggravating sentencing factor

[40]

The appellants second ground of appeal is that
    the sentencing judge erred by relying on the appellants mental health
    condition as an aggravating sentencing factor.

[41]

The appellant impugns these comments of the sentencing
    judge:

[I]t is clear that Mr. Huang has mental health
    issues that remain undiagnosed, and to a large extent untreated. He continues
    to use marijuana and he expresses to me the opinion that it has no impact on
    his mental health issues.

I understand the level of frustration that his
    family must feel. He expressed to me that he thinks he can get this situation
    under control if he is released from custody. I am deeply concerned about his
    mental wellbeing. I take the view that he is in desperate need of a sound
    diagnosis and a plan of treatment.

Also I have to consider at this point the
    appropriate sentence for the robberies that he committed, and as a part of that
    I have to consider the safety of the public and whether it is safe to release
    him into the public. In my view, it is not.

In my view, he has to serve a sentence for the
    robberies he committed and, in my view, the appropriate sentence is the lower
    end of the range suggested by [Crown counsel], that of 12 months. That is the
    sentence.

[42]

We do not read these comments as treating the
    appellants mental health condition as an aggravating sentencing factor. The sentencing
    judge was simply concerned for the appellants mental well-being and underscored
    that he needed treatment. There was nothing inappropriate in that.

Disposition

[43]

For these reasons, we grant leave to appeal the
    sentence and allow the sentence appeal. We substitute a sentence of 12 months,
    with credit for 75 days of pre-sentence custody at a rate of 1.5 to 1, or 113
    days credit, thereby reducing the sentence to 252 days. The other conditions
    of the sentence imposed by the sentencing judge remain unchanged.

Paul
    Rouleau J.A.

B.
    Zarnett J.A.

M.
    Jamal J.A.


