



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ching, 2022 ONCA 183

DATE: 20220302

DOCKET: C69224

Tulloch, Huscroft and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Willy Palmes Ching

Appellant

Jolene Hansell, for the appellant

Benita Wassenaar, for the respondent

Heard: February 25, 2022 by video conference

On appeal from the sentence imposed on January 24, 2020
    by Justice Leonard Ricchetti of the Superior Court of Justice, sitting with a
    jury.

REASONS FOR DECISION

[1]

Following the break-up of his 30-year marriage, the appellant
    formed the intent and plan to kill his ex-wife, Maria Ching. Maria had moved
    out of the matrimonial home and into the home of her uncle, Ernesto Agsaulio.

[2]

On October 24, 2009, the appellant attended at Canadian Tire and
    purchased a hatchet and knife. The next day, October 25, 2009, he rented a car,
    drove to the Agsaulio home, parked a block away, and removed the safety cover
    from the hatchet. On arrival at the home, the appellant was in possession of
    the unsheathed hatchet and the knife. He insisted on seeing his wife. Mr.
    Agsaulio attended at the door and indicated to the appellant that his wife did
    not wish to see him. The appellant then forced his way into the home and attacked
    Mr. Agsaulio in front of his family and children, mortally wounding him. He
    died subsequently from his injuries.

[3]

At trial, the appellant was convicted of first-degree murder, but
    on appeal this court substituted a conviction for second-degree murder and
    remitted the matter to the sentencing judge to set the appropriate parole
    ineligibility period. The sentencing judge set
parole ineligibility
    at 21 years.

[4]

The appellant seeks leave to appeal his sentence. He argues, first, that
    the sentencing judge erred in principle by finding the appellants moral
    blameworthiness for second-degree murder was akin to that of an offender
    convicted of first-degree murder. Second, the appellant argues that the sentencing
    judge made a palpable error in finding the appellants mental illness played no
    contributing role in the murder. The appellant submits that his parole
    ineligibility period should be set at 15 years.

[5]

We do not accept these arguments.

[6]

The sentencing judge found that the appellant killed his ex-wifes uncle
    in the course of carrying out his plan to kill his ex-wife. Counsel agreed that
    there were no similar cases dealing with parole ineligibility in these
    circumstances. The sentencing judge concluded that the range was 10-22 years,
    with 25 years available in rare or exceptional cases.

[7]

The sentencing judge was required to determine the appellants moral
    blameworthiness in determining the appropriate sentence. This courts
    conclusion that a second-degree murder conviction was warranted, rather than a
    first-degree murder conviction, did not fetter the sentencing judges
    discretion.

[8]

In the absence of an error in law or in principle that affected the
    sentence, a sentencing judges decision is entitled to deference unless the
    appellant establishes that it is demonstrably unfit:
R. v. Lacasse
,
2015 SCC 64, [2015] 3 S.C.R. 1089.
We see no such error.

[9]

The sentencing judge considered the relevant factors, including the
    appellants purchase of a hatchet and knife and the rental of a car as part of
    a plan to kill his ex-wife. That plan was made in the context of a history of
    spousal abuse. The appellant forced his way into Mr. Agsaulios home and
    assaulted him with the hatchet and knife when Mr. Agsaulio tried to keep the
    appellant away from his ex-wife. In these circumstances, the sentencing judge
    was entitled to consider that the appellants moral blameworthiness was at the
    high end in second-degree murder cases.

[10]

The
    sentencing judge acknowledged that the appellant need only establish that
    mental illness caused or contributed to the murder in order for mental illness to
    be a mitigating factor. He considered the evidence of two defence psychiatrists
    who gave evidence at trial on the appellants capacity to form the specific
    intention to commit murder. In doing so, the trial judge acknowledged that the
    question of capacity was separate from and not determinative of whether or not
    there was a causal connection of mental illness to the murder.

[11]

The
    sentencing judge found that the psychiatric evidence had several shortcomings,
    including reliance on the appellants false statement that he had gone to the
    Agsaulio home to commit suicide rather than to kill his ex-wife. The sentencing
    judge noted, further, that neither psychiatrist opined on whether the
    appellants depression caused or contributed to the killing. He reviewed Dr. Glancys
    testimony at length, ultimately finding that it was not clear on the relevant
    point. He criticized Dr. Gojers testimony on the basis that he attempted to
    justify his opinion rather than impartially consider the evidence and relied on
    incorrect and incomplete information.

[12]

Ultimately,
    the sentencing judge concluded that the appellant had failed to establish that
    the murder was caused by or contributed to by his depression. That was his call
    to make, and we see no basis to interfere.

[13]

In
    summary, the appellant has not established that the sentencing judge erred in
    law or in principle. Although the sentence is at the high end of the range, in
    all of the circumstances it is not demonstrably unfit.

[14]

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

M. Tulloch J.A.

Grant Huscroft J.A.

Gary Trotter J.A.


