



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Boughan, 2014 ONCA 360

DATE: 20140505

DOCKET: C55543

Hoy A .C.J.O., MacPherson and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sukhjit Boughan

Appellant

Ravin Pillay for the appellant

Robin Flumerfelt for the respondent

Heard:  May 1, 2014

On appeal from the sentence imposed on May 8, 2012 by
    Justice N. Backhouse of the Superior Court of Justice.

ENDORSEMENT

[1]

Mr. Boughan was convicted by a jury on a charge of aggravated assault. 
    He was subsequently sentenced to 12 months imprisonment. He has abandoned his
    appeal against conviction, but seeks to appeal his sentence.

[2]

The conviction arose out of an incident where a group of five people,
    including the appellant, attacked the victim, Mr. Keer, and left him with
    serious injuries.

[3]

The appellant argues that the sentencing judge erred in finding that he
    was a participant in the assault when the jury had convicted him on the basis
    that he was only a party. The sentencing judge relied on his participation as
    an aggravating factor.

[4]

We do not agree.

[5]

It is true that the appellant was acquitted by the jury on other charges
    that required his direct participation  mischief to Mr. Keers car; weapon
    dangerous (based on the use of a particular bracelet he was wearing); and
    assault of Mr. Keer with a weapon (the bracelet). These were all charges
    where it would have been necessary for the appellant to have been a principal
    to be convicted.  However, it does not follow that the jurors necessarily
    convicted him on the aggravated assault charge in question on the basis that he
    was only a party and not as a participant in the assault.  He could have been
    convicted on either basis.

[6]

A sentencing judge is bound by the express and implied factual findings
    in a jury verdict. Where the factual basis is ambiguous, however, the
    sentencing judge is entitled to arrive at her own independent determination of
    the relevant facts: Criminal Code, s. 724(2);
R v. Brown
(1991), 53
    C.C.C. (3d) 521 (S.C.C.).  Here, that is what the trial judge did and we see no
    basis for interfering with those findings.

[7]

In any event, it doesnt really matter on what basis the jury arrived
    at its decision, in our view, because a sentence of 12 months imprisonment was
    entirely proper in the circumstances.

[8]

While there is a debate about whether the appellant actually
    administered any of the beating sustained by Mr. Keer, there is no doubt that
    he was actively engaged in the preparation for the assault, which the
    sentencing judge found to be a planned and organized attack. Arguably, he was
    the driving force behind it.  The appellant brought the group to Toronto, armed
    with golf clubs, in order to facilitate the attack on Mr. Keer. He had an
    opportunity to call off the confrontation, but declined to do so. Defence
    counsel admitted that he participated in the melee.

[9]

This was a case of group swarming.  Although there had been an earlier
    incidence of violence, instigated by Mr. Keer, Mr. Keer was unarmed and
    defenceless at the time of the attack.  He was seriously injured.

[10]

The
    sentence was well within the range of appropriate sentences for this type of
    offence involving this type of offender. We see no basis for interfering with
    it.

[11]

Leave
    to appeal sentence is granted, but the appeal against sentence is dismissed.

Alexandra
    Hoy A.C.J.O.

J.C.
    MacPherson J.A.

R.A.
    Blair J.A.


