



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shi,
    2015 ONCA 646

DATE: 20150924

DOCKET: C60009

Feldman, MacPherson and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Fosheng Shi

Respondent

Kevin Rawluk, for the appellant

Ian Smith, for the respondent

Heard: September 11, 2015

On appeal from the sentence imposed by Justice Harvey P.
    Brownstone of the Ontario Court of Justice, dated January 19, 2015.

ENDORSEMENT

[1]

The Crown seeks leave to appeal sentence where the sentence imposed at
    trial was below the statutory minimum. The respondent concedes that the
    sentence must be set aside. There are two issues on this appeal: what is a fit
    sentence and, having served the sentence that was imposed, should the respondent
    now be re-incarcerated?

[2]

The respondent was 20 years old when, on June 18, 2013, he drove to a
    Bank of Montreal branch and, wearing a black ski mask, entered the bank,
    approached a teller, produced a black pellet gun and demanded $1000. The teller
    said she would have to access a lock box for that much money. The respondent
    then jumped over the counter. The teller gave him $2000. The respondent was
    apprehended a few days later because a bystander saw him pull off his mask in
    the getaway car and took down the licence plate number.

[3]

The respondent spent six days in custody before he was granted judicial
    interim release on terms of house arrest. He was unable to work for most of the
    18 months he spent on house arrest awaiting trial. On the first day of trial,
    he pled guilty to using an imitation firearm in the commission of an indictable
    offence. At the conclusion of the sentencing proceedings, the Crown withdrew
    the other two charges of robbery and disguise with intent.

[4]

Prior to sentencing, the appellants step-father
    paid the bank back the $2000. When asked to speak at sentencing, the appellant
    expressed remorse. He had no criminal record.

[5]

The Crowns position on sentence at
    trial was 18 months imprisonment, while the defence asked for a sentence of 90
    days to be served intermittently. While acknowledging that the offence required
    a mandatory minimum sentence of one year pursuant to s. 85(3) of the
Criminal
    Code
, R.S.C. 1985, c. C-46, defence counsel
    submitted that the minimum sentence could be reduced by crediting time spent on
    bail. Neither counsel brought this courts decision in
R. v. Panday,
2007 ONCA 598,
87 O.R. (3d) 1,
to the attention of the sentencing judge.
Panday
holds that time spent under strict bail conditions is a
    mitigating factor on sentence, but it cannot be used to reduce a sentence below
    the statutory minimum.

[6]

The sentencing judge imposed a sentence
    of 90 days to be served intermittently on weekends so that the appellant could work,
    to be followed by two years probation. He took into account the 6 days of
    pretrial custody on a 1.5-to-1 basis, as well as the guilty plea, the full
    restitution, the fact that the respondents parents were supportive of him, the
    18 months of restrictive bail, his lack of criminal record, his young age, and his
    expression of remorse. The sentencing judge stated that this very serious
    offence required jail time, but that otherwise jail was unnecessary for the
    respondent and could be dangerous for him as a youthful first offender.

[7]

The respondent has completed the
    custodial portion of his sentence.

[8]

On this appeal, the respondent concedes
    that the sentence imposed was illegal. He asks this court to impose the minimum
    sentence of one year but, in all the circumstances, not to re-incarcerate him.

[9]

The Crown appellant says that a fit
    sentence is 18 months and that the respondent should serve the balance of his
    time. The Crown submits that the sentencing judge overemphasized the
    restitution as a mitigating factor and failed to consider the seriousness of a
    bank robbery with a mask. In our view, the mandatory minimum sentence is the
    appropriate sentence for this offender in all the circumstances of the case.

[10]

On our reading of his reasons, the sentencing
    judge well recognized the seriousness of such offences and mentioned that three
    years imprisonment may well have been imposed, were it not for the mitigating
    circumstances. However, the respondent was a youthful first offender. He made
    restitution, pled guilty, and expressed remorse, recognizing that he had done
    something seriously wrong. He served a few days in jail as well as 18 months of
    strict house arrest, which is a mitigating factor that can contribute to reducing
    a sentence down to the statutory minimum:

Panday
,

at
    paras. 22-23.


[11]

On a s. 85 conviction, the mandatory
    minimum of one year can be the appropriate sentence: see e.g.
R. v.
    Burnett
, 2007 ONCA 478;
R. v. Clarke
, 2014 ONCA 296. In our view, it was the appropriate
    sentence in this case.

[12]

Having imposed a sentence of one year,
    the second issue is whether the respondent must be re-incarcerated to serve the
    balance of the sentence. The respondent asks the court to stay the execution of
    the sentence.

[13]

In
R. v. Smickle
, 2014 ONCA 49,
306 C.C.C. (3d) 351,
this court held that on a Crown appeal against sentence,
    after correcting the sentence that should have been imposed by the trial judge
    and thereby giving guidance, the court can make an appropriate practical
    disposition, based on current circumstances (para. 12). The main issue is
    whether the principles of deterrence and denunciation require re-incarceration:
Smickle
, at para. 18. The court also
    considers the impact of re-incarceration on rehabilitation; the potential for
    injustice if the sentence is served; how much time has elapsed since the
    respondent was released, including issues of delay; the length of time to be
    served; and the seriousness of the offence:
R. v. H.E.
, 2015 ONCA 531, at para. 57; and
R. v. Dufour
, 2015 ONCA 426, at paras. 17, 21-23, 26.

[14]

The respondent provided fresh evidence
    on the appeal. He has fully served his 90-day intermittent sentence and is on
    probation. He is working and has a strong letter of reference from his
    employer. He has repaired relationships with his family. He is on the road to a
    productive life. He is still a very young man. He states that he would be
    devastated to have to go back to jail now. In our view, the principles of
    denunciation and general deterrence will be satisfied by the sentence now
    imposed. The principle of specific deterrence is satisfied by the consequences
    of the criminal justice process: that is, the 18 months of restrictive bail, the
    restitution made, the sentence already served, and the respondents current circumstances
    of having demonstrated his reintegration into his family and into productive
    society.

[15]

In all the circumstances,
we
    impose a sentence of 12 months and permanently stay the execution of that
    sentence
.

K. Feldman J.A.

J. C. MacPherson J.A.

B. W. Miller J.A.


