R. v. Ly and Duong, (1992) 78 Man.R.(2d) 209 (CA)

• Judge: Scott, C.J.M., Twaddle and Lyon, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 29, 1991
• Jurisdiction: Manitoba
• Citations: (1992), 78 Man.R.(2d) 209 (CA)

R. v. Ly (1992), 78 Man.R.(2d) 209 (CA);

    16 W.A.C. 209

MLB headnote and full text

Her Majesty The Queen (respondent) v. Phat Ly and Trung Ky Duong (accused/appellants)

(Suit Nos. 183/90 and 204/90)

Indexed As: R. v. Ly and Duong

Manitoba Court of Appeal

Scott, C.J.M., Twaddle and Lyon, JJ.A.

April 30, 1992.

Summary:

The accused were convicted of second degree murder. They appealed the increased period of parole ineligibility attached to their sentences.

The Manitoba Court of Appeal, Lyon, J.A., dissenting, allowed the appeal and reduced the periods of parole ineligibility.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - Two accused were convicted of second degree murder and sentenced to life imprisonment - The jury recommended a ten year period of ineligibility in each case - The trial judge increased the period of ineligibility to fifteen years and twenty years - The Manitoba Court of Appeal affirmed that the trial judge was not bound by the jury's recommendation and had a discretion to increase the period of ineligi­bility - See paragraphs 22 to 24.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - Ly and Duong were convicted of second degree murder and sentenced to life imprisonment - Both were under 18 when they committed the crime - Neither had a record - Subsequent to the murder, Duong became involved in criminal activity, including break, enter and theft and man­slaughter of a rival gang member - The Manitoba Court of Appeal affirmed that Duong's subsequent criminal activity jus­tified a distinction between the period of parole ineligibility imposed on him and that imposed on Ly.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - Ly and Duong were convicted of second degree murder and sentenced to life imprisonment - Both were under the age of 18 when they committed the murder - They were over 18 at trial in adult court - The Manitoba Court of Appeal affirmed that the age of the accused was a factor to be considered when setting the period of parole ineligibility - See paragraphs 17 to 21.

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibil­ity - Ly and Duong were convicted of second degree murder and sentenced to life imprisonment - Victim, Ly's employer, brutally beaten, stabbed and shot during a robbery - Both were under 18 when the murder was committed - Neither had a prior record, but Duong subsequently became engaged in criminal activity - The trial judge imposed 15 years parole ineli­gibility on Ly and 20 years parole ineligi­bility on Duong - The Manitoba Court of Appeal reduced parole ineligibility to 12 and 15 years respectively.

Cases Noticed:

R. v. Wenarchuk, [1982] 3 W.W.R. 643; 15 Sask.R. 240; 67 C.C.C.(2d) 169 (C.A.), refd to. [paras. 13, 40].

R. v. Wright (1980), 23 Nfld. & P.E.I.R. 118; 61 A.P.R. 118; 52 C.C.C.(2d) 81 (P.E.I.C.A.), refd to. [para. 14, appendix A].

R. v. Gourgon (1981), 58 C.C.C.(2d) 193 (B.C.C.A.), refd to. [para. 14, appendix A].

R. v. Jordan (1983), 7 C.C.C.(3d) 143 (B.C.C.A.), refd to. [paras. 14, 49].

R. v. Joseph (1985), 15 C.C.C.(3d) 314 (B.C.C.A.), refd to. [para. 23].

R. v. Fisher and Waluk (1989), 59 Man.R.(2d) 58 (C.A.), refd to. [para. 27].

R. v. Kulba (1986), 39 Man.R.(2d) 113, refd to. [para. 28].

R. v. Mitchell (1987), 81 N.S.R.(2d) 57; 203 A.P.R. 57, refd to. [para. 39].

R. v. Modin (1989), 94 A.R. 81; 66 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 47].

R. v. Ameeriar (1990), 60 C.C.C.(3d) 431 (Que. C.A.), refd to. [para. 48].

R. v. Campbell (1990), 57 C.C.C.(3d) 200 (Alta. C.A.), refd to. [appendix A].

R. v. Johnston (1977), 1 C.R.(3d) 50 (Que. S.C.), refd to. [appendix A].

R. v. McGill (1986), 18 O.A.C. 81 (C.A.), refd to. [appendix A].

R. v. Mailloux (1989), 99 N.B.R.(2d) 356; 250 A.P.R. 356 (C.A.), refd to. [appen­dix A].

R. v. Laidlaw (1989), 93 N.S.R.(2d) 333; 242 A.P.R. 333 (C.A.), refd to. [appen­dix A].

R. v. Larcenaire (1987), 20 O.A.C. 380 (C.A.), refd to. [appendix A].

R. v. Martin and Gabriel (1981), 49 N.S.R.(2d) 361; 96 A.P.R. 361 (C.A.), refd to. [appendix A].

R. v. McGrath (1980), 25 Nfld. & P.E.I.R. 138; 68 A.P.R. 138 (Nfld. T.D.), refd to. [appendix A].

R. v. LeBlanc, [1989] R.J.Q. 885 (C.S.), refd to. [appendix A].

R. v. McLaren (1989), 94 A.R. 317 (C.A.), refd to. [appendix A].

R. v. Legere (1988), 89 N.B.R.(2d) 361; 226 A.P.R. 361; 43 C.C.C.(3d) 502 (C.A.), refd to. [appen­dix A].

R. v. Quesnel (1991), 71 Man.R.(2d) 1 (C.A.), refd to. [appendix A].

R. v. Brackenbury and Pratt (No. 2) (1982), 70 C.C.C.(2d) 55 (Alta. C.A.), refd to. [appendix A].

R. v. Tait (1978), 5 Sask.R. 193 (C.A.), refd to. [appendix A].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 744 [para. 39]; sect. 745 [para. 50].

Authors and Works Noticed:

Law Reform Commission of Canada, Homicide, Working Paper 33, pp. 79, 116 [para. 51].

Law Reform Commission of Canada, Recodifying Criminal Law, Report 31, [para. 37].

Law Reform Commission of Canada, The Jury, Report 16 (1982), para. 198 [para. 51].

Stuart, Dr. Don, Canadian Criminal Law, A Treatise, p. 229 [para. 50].

Counsel:

B.L. Keyser and M.J. Pollock, for the accused, Phat Ly;

H.E. Wolch, Q.C., for the accused, Trung Ky Duong;

J.G. Dangerfield, Q.C., for the Crown.

These appeals were heard on April 29, 1991, before Scott, C.J.M., Twaddle and Lyon, JJ.A., of the Manitoba Court of Appeal. On April 30, 1992, the decision of the court was delivered and the following opinions were filed.

Twaddle, J.A., Scott, C.J.M., concurring - see paragraphs 1 to 31;

Lyon, J.A., dissenting - see paragraphs 32 to 56.