2007 BCCA 241 R. v. Gibbs

Before:	The Honourable Madam Justice Rowles
	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Lowry

Oral Reasons for Judgment

C.L. Bauman	Counsel for the Appellant
S.J. Brown	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
20 April 2007
Place and Date of Judgment:	Vancouver, British Columbia
23 April 2007

[1] ROWLES, J.A.: The applicant for leave to appeal sentence pleaded guilty to three separate charges of theft under $5,000, two of which were charged by indictment. The offences took place over a three-week period in July and August 2006. Each offence arose out of an incident of shoplifting when the applicant stole items worth less than $70 from a retail store in Kelowna. On 21 December 2006, he was sentenced to a one-year term of imprisonment on the two offences charged by indictment and a six-month term on the offence charged summarily. All of the sentences were ordered to be served concurrently.

[2] The applicant has a long-standing history of substance abuse and was living on the street at the time of the offences. He has a record of 60 convictions dating back to 1983. The record includes 37convictions for theft, as well as more serious offences such as robbery and breaking and entering and theft. His attempts at rehabilitation have not been successful, but he continues to express hope that his efforts will be fruitful.

[3] At the sentencing hearing, Crown counsel suggested a one-year sentence, but defence counsel urged greater leniency.

[4] Three grounds of appeal have been put forward. The first is that the sentences pronounced by the provincial court judge did not take into account the time the applicant had spent in pre-trial custody. The other two grounds are that the sentences pronounced are grossly disproportionate to the nature of the underlying offences and that the judge erred in “punishing the appellant for past offences” contrary to proper sentencing principles as described in R. v. Poitras (2006), 214 C.C.C. (3d) 366. We called on respondent’s counsel with respect to the first ground only and I will come back to that ground shortly.

[5] In submitting that the judge erred by punishing him for his previous offences, the applicant pointed to the judge’s reference to his being an "habitual criminal" and to the long-repealed provisions of the Criminal Code that authorized holding persons so designated in prison indefinitely. In my view, nothing can be taken from the judge's comments that would support the contention that the judge was “punishing the appellant for past offences”. The judge was simply observing that, at an earlier time, some extreme measures had been taken to protect the public from offenders who had repeatedly committed minor crimes. The judge went on to observe that “[r]ehabilitation is the single best protection for the community from multiple offenders”, but expressed reservation about how that could be accomplished in the case of the applicant.

[6] In his written submissions on the appeal, the applicant acknowledged that his lengthy record “can legitimately be used by the sentencing judge to reach the conclusion that the primary sentencing concern is the protection of the public”, but argued that the sentence imposed of one year “is grossly disproportionate to the relatively minor offence which he committed”. The applicant points out that his most recent convictions for similar shoplifting offences resulted in a three-month custodial sentence. In his submission, the range of sentence for this type of minor shoplifting offence, given his record, is a period of four to six months in custody. He asks that the one-year sentences be reduced to reflect that range.

[7] In the circumstances of this case, I am unable to agree that the one-year sentence is unfit. In R. v. Moore, [1991] B.C.J. No. 2733 (Q.L.), 4 B.C.A.C. 89, a two-year sentence for the theft of a purse and contents with a value of less than $1000 was upheld in the case of an offender who had a record dating back many years which contained more than 50 counts of similar offences. Under the Criminal Code, a sentence of two years was the maximum sentence that could be imposed for the offence in that case. The same maximum sentence applies in this case for those offences charged by indictment.

[8] In upholding the two-year sentence in Moore, Lambert J.A. said:

[8] Where someone has committed more than 50 similar offences over a period of 25 or 30 years and has demonstrated that he is an incorrigible offender it is unrealistic that to think that one more sentence for one more offence will change a life pattern. Of course, the hope always remains that there will be a change but it is unrealistic to make a prospect of rehabilitation a sentencing goal in those cases unless a particular program with demonstrated high prospects of success can be shown to be available.

[9] The protection of the public is not served by short sentences for persistent offenders who are out again and able to resume their demonstrated habit of preying on the public. A good deal must be left to the discretion of the sentencing judge. What I mean by that is that the range of sentences that could be thought to be fitting is a more extensive range for offenders who have shown themselves to be incorrigible than it is for first offenders or for offenders with a comparatively minor record. The sentencing judge is called upon to decide upon a balance between the protection of the public and the appropriateness of the sentence in relation to the offence.

[10] It may well be that a shorter sentence in this case could not be said to have been an unfit sentence but where the offender is an incorrigible offender and where protection of the public is a dominant sentencing principle it is not necessary that the shortest sentence which can reasonably be imposed should be imposed. That is to deny the very existence of the need for protection of the public.

[Emphasis added.]

[9] In this case, the applicant similarly has an extensive record of continuous crime dating back many years. The judge properly recognized the need to impose a sentence that would serve the object of deterrence and best ensure the protection of the public. In my view, the concurrent sentences of one-year imprisonment the judge imposed for the two theft offences charged by indictment in this case could not be regarded as unfit.

[10] I turn now to the first ground of appeal.

[11] During the course of the sentencing hearing, the matter of pre-trial custody was raised and counsel agreed that the applicant had been in custody in relation to these offences since 28 November 2006. The applicant had therefore spent 24 days in custody before he was sentenced.

[12] No mention is made in the reasons for sentencing of credit being given for pre-trial custody. In the concluding paragraph of his reasons, the trial judge said:

[7] But, you know, you are like a 7-Eleven that never shuts down, so I really do not know what to do. But the temptation is to just go bizzerk (sic), of course, and give you some lengthy sentence like eighteen months, but I will not go that far, but I will give you a year concurrent on all your sentences which means you will be out for early release in a few months and I am not going to put you on probation. That is a complete and utter waste of time.

[13] Crown counsel clarified that a one-year concurrent sentence would apply to the two offences charged by indictment and that on the offence charged summarily, a six-month sentence would apply. The judge confirmed the sentences would be as stated by Crown counsel.

[14] The applicant submits that credit ought to have been given for the pre-trial custody and that, applying the customary two-for-one rule, he should have received credit for 48 days. He seeks to have the one-year sentences reduced accordingly.

[15] In opposing this ground of appeal, respondent’s counsel points out that while the judge said nothing about credit for pre-trial custody in his reasons for sentencing, the Record of Proceedings and the Warrants of Committal indicate that the applicant was given two months credit in respect of the offences charged by indictment. However, respondent’s counsel was candid in saying that she was unable to explain what might account for the discrepancy between the judge’s reasons and the two documents to which she referred.

[16] Section 570(5) of the Criminal Code provides for the Warrant of Committal to issue in Form 21:

Where an accused … is convicted, the judge or provincial court judge, as the case may be, shall issue or cause to be issued a warrant of committal in Form 21.…

[17] In its material part, Form 21 reads:

To the peace officers in the territorial division of (name) and to the keeper of a federal penitentiary (or provincial correctional institution for the province of ............, as the case may be)

Whereas (name), hereinafter called the offender was on the ........ day of ........ 19........, convicted by (name of judge and court) of having committed the following offence(s) and it was adjudged that the offender be sentenced as follows:

Offence	Sentence	Remarks

(state offence of which offender was convicted)	(state term of imprisonment for the offence and, in case of imprisonment for default of payment of fine, so indicate together with the amount thereof and costs applicable and whether payable forthwith or within a time fixed)	(state whether the sentence is consecu-tive or concurrent, and specify consecutive or concurrent to/with what other sentence)

1.
2.
3.
4.

You are hereby commanded, in her Majesty’s name, to arrest the offender if it is necessary to do so in order to take the offender into custody, and to take and convey him safely to a federal penitentiary (or provincial correctional institution for the province of ........, as the case may be) and deliver him to the keeper thereof, who is hereby commanded to receive the accused into custody and to imprison him there for the term(s) of his sentence, unless, where a term of imprisonment was imposed only in default of payment of a fine or costs, the said amounts and the costs and charges of the committal and of conveying the offender to the said prison are sooner paid, and this is a sufficient warrant for so doing.

[18] As may be seen from Form 21, there is no requirement for any notation to be made about credit for pre-trial custody and, in view of the purpose of Form 21, it is puzzling why any such notation would be made. On its face, the notation made on Form 21 in this case suggests that the sentence the judge considered appropriate was to be 14 months, rather than one year, and that he had reduced the sentence by two months to take into account pre-trial custody. However, that would clearly be at odds with the judge’s reasons.

[19] The Record of Proceedings on the two theft offences charged by indictment are similarly not of assistance. Respondent’s counsel told us that, on occasion, it is necessary to reassemble the court to deal with a matter that has been overlooked and that is what might have happened here. The Records contain notations of the date and exact time of appearances, but on neither form is there a notation of more than one appearance on 21 December 2006.

[20] In the circumstances, I am of the view that the respondent cannot rely on the Warrants of Committal or the Records of Proceedings to support her contention that the pre-trial custody was taken into account in sentencing when the judge’s reasons clearly indicate otherwise.

[21] The authority to take into account the time an offender has spent in pre-trial custody is found in s. 719(3) of the Criminal Code:

719 (3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence.

[22] While s. 719(3) uses the permissive “may” in authorizing a court to consider time in pre-sentence custody, the jurisprudence provides that, as a general rule, the court must given credit for pre-sentencing custody unless there is a good reason to deny it: R. v. Mills (1999), 133 C.C.C. (3d) 451, 1999 BCCA 159 at para. 30. The reasons for crediting an offender with an amount greater than the time spent in pre-trial custody are set out in a number of cases including R. v. Rezaie (1996), 112 C.C.C. (3d) 97 (Ont. C.A.) at 104; R. v. Mills, supra at para. 42, and R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18 at para. 45 and they need not be repeated here.

[23] In this case, no reason has been put forward to deny application of the usual doubling rule to take account of the time the applicant spent in pre-trial custody.

[24] In the result, I would grant leave and would allow the appeal to the extent of reducing each of the one-year concurrent sentences by 48 days.

[25] PROWSE, J.A.: I agree.

[26] LOWRY, J.A.: I agree.

[27] ROWLES, J.A.: The sentence appeal is allowed accordingly.

“The Honourable Madam Justice Rowles”