



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Huh, 2015 ONCA 356

DATE: 20150519

DOCKET: C59460

Gillese, Tulloch and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Benjamin Huh

Respondent

Katie Doherty, for the appellant

Breana Vandebeek, for the respondent

Heard:  May 5, 2015

On appeal from the sentence imposed on September 15, 2014
    by Justice Heather E. Perkins-McVey of the Ontario Court of Justice.

By the Court:

[1]

The Crown appeals the sentence imposed on the respondent. It is common
    ground that deference is the guiding principle of appellate review of sentences,
    and intervention is only permitted if the sentencing judge committed an error
    in principle, or imposed a sentence that is demonstrably unfit:
R. v. M. (C.A.)
,
    [1996] 1 S.C.R. 500, at para. 90.

[2]

The respondent was found guilty of
    assault causing bodily harm under s. 267(b) of the
Criminal
    Code
, R.S.C. 1985, c. C-46
. He was 21 years of age when he committed the offence. The
    sentencing judge imposed a conditional discharge with two years probation.

[3]

The sentencing judge declined to impose
    a DNA order under s. 487.051 and a weapons prohibition order under s. 109. The
    respondent properly concedes that the sentencing judge erred in refusing to
    make these ancillary orders which, in the circumstances of this case, were
    mandatory.

[4]

The assault committed by the respondent
    while he was severely intoxicated, was extraordinarily violent. The beating left
    the victim with facial fractures and post-concussion syndrome. He suffered
    brain damage with impairment in the higher executive functions. The victim was
    forced to withdraw from his university courses in finance. He has problems
    communicating in a fluent manner due to difficulties in organizing his
    thoughts.  He also is fearful for his safety and for his future.

[5]

The pre-sentence report about the
    appellant was not especially positive. He was presented as a multi-substance
    abuser in denial of his need for rehabilitation. The Crown proposed a
    significant jail sentence within the reformatory range, on the basis that,
    according to the pre-sentence report, the respondent had no insight into his
    behaviour and the public ought to be protected from him. However, the Crown did
    not propose a specific sentence.

[6]

The sentencing judge adjourned the proceedings, at least in part in
    order to give the respondent an opportunity to show her that the public
    interest would not be offended by the imposition of a discharge.

[7]

In the months between the sentencing
    submissions on June 2, 2014 and the sentencing date of September 15, 2014, the
    respondent completed 144 hours of community service. He also met with a social
    worker at the Centre for Addiction and Mental Health and was awaiting placement
    into a counselling program.

[8]

Several additional positive letters of
    reference were filed, including from Reverend Mathias Kim. As a member of St.
    Andrews Church, the respondent had participated in a mission trip to Mexico
    and regularly helped organize youth activities. He had also been working at his
    familys convenience store.

[9]

The sentencing judge relied primarily on the sentencing
    objectives of individual deterrence and rehabilitation in the circumstances of young
    first offenders.
She was impressed by the respondents
    progress, and noted that he had gained some maturity, some insight and
    demonstrated his recognition of the importance of the matter. She said:

In the circumstances I am going to
    grant you that conditional discharge because you have earned it, sir.  You have
    done, as indicated, significant amount of community service, you have shown now
    some insight, and appropriately I am going to grant you that discharge.  Im
    going to place you on probation for two years, sir, because you do need that
    continued support and access to treatment.

[10]

The
    respondent submits that the two-year probationary term was carefully crafted to
    include a curfew term during the first six months, a requirement that the
    respondent perform an additional 50 hours of community service and a
    requirement that the respondent provide a letter of apology to the complainant.
    The fresh evidence shows the respondent remains committed to a counselling
    program, has taken classes related to drug and alcohol abuse, has completed the
    additional 50 hours of community service, and is employed full-time.
The respondent has expressed remorse for his crime.

[11]

The
    Crown submits that the sentence imposed in this case was manifestly unfit.  We
    agree. The sentence was not proportionate to the gravity of the offence. The
    conditional discharge did not reflect the degree of violence of the
    respondents assault, the seriousness of the injuries he inflicted on the
    victim, or the applicable sentencing principles.

[12]

We
    adopt  the observation in
R. v. Wood

(1975), 24 C.C.C. (2d) 79 (C.A.),
    at para 4: [i]n cases of violence resulting in injury the requirement of
    general deterrence to the public militates, in almost every case, against the
    grant of a conditional discharge, notwithstanding considerations personal to
    the accused.

In our view, a conditional discharge does not meet the
    public interest in this case.  While a discharge may have been in the interest
    of the appellant, in this circumstance, it was not in the public interest.
    Accordingly, leave to appeal the sentence is granted, and the sentence appeal
    is allowed.  It now falls to this court to impose what we deem to be an
    appropriate sentence.

[13]

The
    respondent submits that he should not now be incarcerated and that this court
    should take the route in
R. v. Smickle
, 2014 ONCA 49, 306 C.C.C. (3d)
    351, where, at para. 12, Doherty J.A. endorsed the view of Green C.J.N.L. in
R.
    v. Taylor
, 2013 NLCA 42, at para 133:

... there is nothing inconsistent with saying that the
    sentencing judge, with the record in front of him, should have sentenced the
    offender to greater incarceration than he did and at the same time saying that,
    with what the court now knows, the application of the sentencing principles
    does not now require the offender actually to serve the remainder of the
    sentence.
Unlike the sentencing judge, the court of appeal will be deciding
    whether the offender should actually serve the rest of his sentence with the
    benefit of hindsight, a perspective that the sentencing judge did not have. The
    corrective appellate function of giving guidance as to what the sentencing
    judge ought to have done can therefore be achieved while at the same time the
    court can make an appropriate practical disposition, based on current
    circumstances
. [Emphasis by Doherty J.A.]

[14]

Our
    task is to fashion a fit sentence based on current circumstances, not those at
    the time of sentencing.  The respondent is a young offender without a criminal
    record. He has expressed remorse. He has served his conditional sentence thus
    far without incident. He has, moreover, shown a commitment to change his life
    for the good and has continued in that path.

[15]

However,
    we do not agree with the respondent that no incarceration should now be imposed.
    This was a crime of violence that left the victim with serious and longstanding
    injuries.   The principles of deterrence and denunciation cannot be met without
    a period of incarceration. The Crown has urged a period of six to eight months
    incarceration, followed by two years of probation. That appears to be at the
    low end of the appropriate range.  Having said that, the fresh evidence shows
    that the respondent is a very different person today than he was when
    sentenced.  He has taken responsibility for his actions, continued with
    extensive community work, obtained professional help and is drug-free.  In
    these circumstances, we accept the Crowns submission as to the range.

DISPOSITION


[16]

We
    therefore set aside the sentence imposed by the sentencing judge, and exercising
    authority under s. 732 (1) of the
Criminal Code
, convict the
    respondent of assault causing bodily harm, and impose a sentence of six months
    incarceration, followed by a two-year term of probation. This sentence pays due
    regard to the principles of deterrence and denunciation, but also to the age
    and character of the offender, the nature of the offence and the circumstances
    surrounding its commission, and the respondents commendable efforts at
    rehabilitation. We also make the mandatory ancillary DNA and weapons prohibition
    orders.

Released:  May 19, 2015 EEG

E.E.
    Gillese J.A.

M.
    Tulloch J.A.

P.
    Lauwers J.A.


