





CITATION:
R. v. Cham, 2011
          ONCA 330



DATE: 20110428



DOCKET: C50406



COURT OF APPEAL FOR ONTARIO



Weiler, Blair and Epstein JJ.A.



BETWEEN



Her Majesty the Queen



Respondent



and



Ajoda

Obwodo
Cham



Appellant



Brian H. Greenspan and Jill Makepeace, for the appellant



Susan G.
Ficek
, for the respondent



Heard and released orally:
April 21, 2011



On appeal from the conviction
          entered on April 21, 2008 and the sentence imposed on June 17, 2008 by
          Justice Robert J. Abbey of the Superior Court of Justice, sitting with a
          jury.



ENDORSEMENT



[1]

The appellant appeals his convictions for attempt
    murder, aggravated assault and uttering a death threat.  If granted leave, he also appeals his sentence
    of six years for attempted murder on the basis that the trial judge failed to
    consider the fact that the appellant acted out of fear as a mitigating factor.

[2]

The Crown concedes the appellants appeal of his
    conviction for aggravated assault on the basis of the principle in
R. v.
Kienapple
,
(1974),
    15 C.C.C. (2d) 524 (S.C.C.), the principle that prevents multiple convictions
    for the same wrongful act, and also agrees that, as a result, the sentence of
    three months concurrent to the sentence for aggravated assault should be set
    aside.

[3]

The main issue on the conviction appeal is whether the
    trial judge erred in refusing to leave self defence with the jury.

[4]

In our opinion the trial judges ruling was
    correct.  On the evidence, this was a
    pre-emptive attack by the appellant.  While the victims blood was found on the handle and point of a steak
    knife in the kitchen, there is no evidence to suggest that the victim had the
    knife in his hand prior to being attacked by the appellant.  Quite apart from whether the appellant had a
    subjective belief that met all three elements of self defence, we agree that
    there was no objective air of reality to the defence of self defence,
    particularly in relation to the third element.  That element requires evidence that the appellant could not otherwise
    preserve himself from death or grievous bodily harm. There is no evidence to
    explain why the appellant did not call the police or seek the assistance of Mr.
    Al
Shaibie
, who had successfully intervened in the
    prior dispute between himself and the victim or simply display the machete to
    scare off the victim, particularly in light of the striking disparity between
    the two weapons  a 10 inch steak knife compared to a 23 inch machete with an
    18 inch blade.

[5]

The appeal as to conviction on attempt murder is
    dismissed.

[6]

With respect to the sentence for attempted murder, we
    are of the opinion the trial judge did not err in principle.  The trial judge noted the mitigating factors,
    the appellants youth and lack of prior criminal record, his co-operation with
    the police and the appropriate range of sentence.  The appellants subjective fear of his victim
    is not a mitigating factor.  His sentence
    of six years was not manifestly unfit and we cannot interfere.  Accordingly, leave to appeal sentence is
    granted, but the appeal as to sentence on the count of attempt murder is
    dismissed.

[7]

With respect to the count of aggravated assault, the
    conviction is set aside, a finding of guilt is substituted and a stay is
    imposed. The sentence of three months concurrent is therefore set aside.

[8]

The appeal is otherwise dismissed.

Karen M. Weiler
    J.A.

R.A. Blair J.A.

Gloria Epstein
    J.A.


