



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Bhatti, 2013
    ONCA 20

DATE: 20130116

DOCKET: C54365

Weiler, Blair and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Iftikhar Bhatti

Appellant

Mark Halfyard, for the appellant

Shawn Porter, for the respondent

Heard and released orally: January 10, 2013

On appeal from the sentence imposed on September 28, 2011
    by Justice H.W. Allen of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

Over a period of approximately 3 months, the appellant purchased six
    tractor trailer loads worth of stolen property (commercial goods) with the
    intention of re-selling them at a profit. Midway through his trial for
    possession of stolen property the appellant pled guilty to four of the counts
    against him. For sentencing purposes, the parties agreed the retail value of
    the goods was $500,000. All the property was eventually recovered and returned
    to its rightful owners. The trial judge sentenced the appellant to 12 months
    imprisonment plus three years probation.

[2]

The appellant seeks leave to appeal his sentence and submits that the
    trial judge erred in principle in not imposing a conditional sentence. The
    appellant is 55 years old. He had no prior criminal record, and owned and
    operated a textile business for 25 years prior to losing his job on account of
    his conviction. He has five children. Three live with him and a fourth, who
    lives with her mother, has Downs syndrome. He assists with her care on
    weekends.  The appellant suffers from a number of back and gastro-related
    medical issues.

[3]

The appellant says the trial judge made two errors in principle:

(1)     He overemphasized the importance of general
    deterrence, particularly given the appellant was a first-time offender;

(2)

He erred in taking judicial notice of the prevalence of tractor trailer
    thefts in the community, when it was not even argued by the Crown nor was the
    defence given an opportunity to respond to this issue, and in relying on it as
    an aggravating factor.

[4]

In the course of exchanges with counsel, the trial judge made it clear
    that his principle concern was general deterrence.  He indicated that with
    respect to possession of stolen goods of this magnitude and character, general
    deterrence was very significant.  We do not view his comments, respecting the
    extent of tractor trailer theft and his personal knowledge in that regard, as an
    indication he used this extent of tractor trailer theft as an aggravating
    factor.  Rather, he used it as an indicator of the need for general deterrence
    respecting crimes of this nature.

[5]

Nor are we of the opinion that he over emphasized general deterrence.
    Although we acknowledge that there were a number of mitigating factors, the
    sentencing judge considered them in reaching his conclusion. This was not a
    crime that arose out of the appellants need but out of greed and it involved a
    crime of significant magnitude over a period of several months. We are of the
    opinion that the trial judge did not err in principle.  The sentence he imposed
    was within the range and it was open to the trial judge in the circumstances
    not to accede to the defence request for a conditional sentence. We see no
    error in this regard.

[6]

Accordingly leave to appeal sentence is granted but the appeal as to
    sentence is dismissed.

K.M. Weiler J.A.

R.A. Blair J.A.

Paul Rouleau J.A.


