



COURT OF APPEAL
    FOR ONTARIO

CITATION:
R. v. Skanthavarothayar, 2012
    ONCA 392

DATE: 20120611

DOCKET: C50038  C50039

Gillese, Pepall and Ducharme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Pratheepen Skanthavarothayar

Jayanthan Palaguru

Appellants

Apple Newton-Smith, for the appellant Skanthavarothayar

and P. Andras Schreck, for the appellant Palaguru

Susan Magotiaux, for the respondent

Heard:  Heard May 23, 2012

On appeal from the convictions entered on September 25,
    2008, by Justice Wailan Low of the Superior Court of Justice and on the
    sentence imposed by Justice Low dated February 20, 2009 for the appellant
    Palaguru.

ENDORSEMENT

[1]

The appellants were among a group
    of attackers who set upon and beat two men sitting in a parked car.
The attack was vicious and
    pre-meditated and intended to intimidate the victim so that he would not
    testify at an upcoming murder trial.
Following
    a trial by judge and jury, each appellant was convicted of several offences.
At the end of oral argument, we informed counsel that
    the appeal would be dismissed with brief reasons to follow. Here now are those
    reasons.

[2]

The appellant Mr. Skanthavarthayar
    was convicted of two counts of assault with a weapon, aggravated assault, and
    attempting to obstruct justice. He was given a global sentence of four years'
    imprisonment, less time served in pre-trial custody, credited on a 2:1 basis.
    His appeal is against conviction only.

[3]

The appellant Mr. Palaguru was
    convicted of assault with a weapon, assault, aggravated assault, attempting to
    obstruct the course of justice, and failing to comply with a condition of
    recognizance. He pleaded guilty to the last charge. For these offences, he too
    received a global sentence of four years' imprisonment less time served in
    pre-trial custody, credited on a 2:1 basis. He appeals against conviction and
    sentence.

[4]

In the appeal against conviction,
    the appellants raise one issue: Did the trial judge err in failing to give an
    adequate
Vetrovec
warning in her charge to the jury?

[5]

The Crown's main witness at trial,
    Lingathasan Suntharamoorthy, gave a full account of the attacks and threats and
    identified the appellants as attackers. However, Mr. Suntharamoorthy had a long
    criminal record that included many violent offences, including manslaughter,
    and a long history of lying to the police. In the course of his testimony, he
    was also frequently inconsistent. Everyone agreed that in his case a
Vetrovec
caution was necessary, to alert the jury that there were good reasons to doubt
    the witness's veracity.

[6]

The
Vetrovec
warning that
    the trial judge gave to the jury was consistent with the model set out in
    Justice Watt's Standard Jury Instructions. However, appellants' counsel submit
    that the trial judge failed to adequately explain to the jury why Mr.
    Suntharamoorthys evidence required their special scrutiny. They also allege
    that the trial judge gave the jury misleading instructions on confirmatory evidence,
    and that, overall, the effect of her
Vetrovec
caution succeeded only in
    undermining the theory of the defence.

[7]

We disagree. In the context of
    this case the
Vetrovec
caution was more than adequate. The jury could
    not have been under any misunderstanding about how they were to approach the
    evidence of Mr. Suntharamoorthy, whom the trial judge repeatedly described as
    unsavoury.

[8]

Nor did the trial judge mislead
    the jury in any way. In saying this, we wish to emphasize that we do not take
    so narrow a view of the principle of materiality enumerated in
R. v. Khela
,
    [2009] 1 S.C.R. 104 as counsel for the appellants have urged upon us.

[9]

When looked at in the context of
    the case as a whole, we consider that the few pieces of confirmatory evidence
    cited by the trial judge were capable of bolstering relevant aspects of Mr.
    Suntharamoorthys account. In other words, they were capable of strengthening
    the jurys belief that Mr. Suntharamoorthy was telling the truth about the
    appellants involvement in the assault upon him. This evidence was therefore
    not misleading.

[10]

While identity was the central
    issue in the trial, there were other material facts in dispute as well.
    Moreover, the trial judge explicitly charged the jury that there was "no
    confirmatory evidence" with respect to the issue of identity, and her
    charge ended with a lengthy, detailed review of the frailties and
    inconsistencies in Mr. Suntharamoorthys testimony, all going to suggest why he
    should not be believed.

[11]

For these reasons, the appeals
    against conviction must therefore be dismissed.

[12]

As to the sentence appeal, the
    appellant Mr. Palaguru submits that the trial judge erred by failing to
    consider mitigating factors, by failing to consider the fact that the appellant
    had been subject to strict bail conditions before trial, and by placing
    too-great emphasis on aggravating factors.

[13]

In the course of the sentencing
    hearing, both Crown and defence counsel referred the trial judge to a
    pre-sentence report on Mr. Palaguru. The pre-sentence report recited some of
    the details of Mr. Palaguru's childhood in Sri Lanka, a time and place marked
    by such fear and violence that the family was forced to flee the country for
    Canada.

[14]

In light of this relevant
    information relating to the circumstances of the offender, we believe that the
    trial judge erred in stating without qualification that there were no
    mitigating factors and in observing that "[the] Pre-sentence Report
    discloses unremarkable antecedents."

[15]

Still, in our view, the trial
    judge did not err in finding on the facts of this case that the predominant
    principles and purposes of sentence were those of denunciation and specific and
    general deterrence. There was ample evidence to support the trial judges
    finding that the appellant's attack upon the victim was a cowardly, vicious,
    and pre-meditated act, designed to dissuade the victim from testifying in a
    murder trial. It was thus open to the trial judge to conclude on the facts of
    this case, including a lengthy criminal record disclosing 13 convictions going
    back to 2000, that there were no mitigating factors sufficient to cause her to
    ameliorate the appellant's sentence.

[16]

In his written submissions the
    appellant also contends that the trial judge's failure to consider his
    restrictive bail conditions constitutes an error in principle. Although this
    ground of appeal was not advanced in oral argument, we wish to address it
    briefly here. While it is true that a trial judge faced with an offender who
    has spent time on bail under house arrest should adopt a flexible approach, . .
    . the amount of credit and the manner in which it is to be taken into account
    as a mitigating factor is a matter for the trial judge.
R. v. Downes
,
    [2006] O.J. No. 555 (C.A.) at para. 36. Here, in this case, the trial judge was
    aware of the appellant's restrictive bail, and equally aware that he had
    breached his bail conditions three times.

[17]

In our view, the global sentence
    of four years' imprisonment was a fit one in all the circumstances, in the
    sense that it was not clearly unreasonable. The sentence recognizes the
    fundamental principle of sentencing, proportionality, as set out in s.718.1 of
    the
Criminal Code
. It also honours the principle of parity in that it is
    similar to the sentence imposed on Mr. Skanthavarothayar for similar offences
    committed in similar circumstances. We would not therefore intervene to vary
    the sentence. Accordingly, the appeal against sentence is also dismissed.

E.E. Gillese J.A.

S.E. Pepall, J.A.

E. Ducharme J.A.


