The Queen v. Poon Kai-ming

CACC000391/1983

IN THE COURT OF APPEAL

BETWEEN

Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 25th May 1983

__________

JUDGMENT

__________

Silke, J.A.:

1. The applicant was convicted on his own plea of robbery and now seeks leave to appeal against the sentence of nine years' imprisonment passed upon him.

2. The robbery took place on the 16th September 1982 at the Ottawa Fur Factory. He was with three others. Persons in the factory were threatened with a knife and they were bound, gagged and blindfolded. One of them was seized round the neck. While some violence was offered to him we accept that no actual physical harm was caused.

3. The applicant did plead guilty and he has submitted to us that he was cooperative all along the line both with the police and with the Courts. But he has an appalling record. Every form of sentencing has been tried - he has been placed on bond, he has been on probation, he has been sent to a Boy's Home, he has  been in the Training Centre, he has been in the Drug Addiction Treatment Centre and he has suffered corporal punishment. His record runs from the age of twelve, in 1968, up to a conviction in 1982 for simple possession of dangerous drugs. On that occasion he was sentenced to three months' imprisonment and that sentence was suspended for eighteen months.

4. One does not sentence a man for his record but it is a factor to bear in mind in assessing the proper sentence for the offence for which he appears before the Court.

5. This was a nasty robbery - a man was threatened with a knife held to his throat and there was violence offered to him. There were three persons involved.

6. We see nothing wrong in principle in the sentence which was imposed upon the applicant in the light of his record and in the light of the nature of the actual offence for which he was sentenced.

7. There is however one point. The trial judge directed that the three months' suspended sentence, to which we have referred, be activated and that it should run consecutively to the nine years sentence he imposed for the robbery.

8. Imprisonment may well be the proper sentence upon conviction for the offence of simple possession of a dangerous drug. Alternatively, and depending on the circumstances, the Court may desire to be lenient but we doubt, where the convicted person is a confirmed drug addict and one with a long criminal record, that a suspension of the sentence of imprisonment imposed is the way to show it.

9. We do not say the trial judge was wrong to activate the sentence, or indeed, to make it consecutive to the nine years. But we think that, in all the circumstances of this case and of the nature of the offence committed, it should have been concurrent.

10. We would therefore allow the appeal to this extent: that the order of a consecutive sentence - that is the sentence of three months' imprisonment - be quashed: the sentence do stand but it will run concurrently with the nine years.

Representation:

Applicant in person.

R. Pritchard, Esq. for Crown/Respondent.