COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
R. v. Gunning, |
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2008 BCCA 22 |
Date: 20080122
Docket: CA034914
Between:
Regina
Respondent
And
Jody James Gunning
Appellant
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Before: |
The Honourable Chief Justice Finch |
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The Honourable Mr. Justice Smith |
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The Honourable Mr. Justice Frankel |
| G. Orris, Q.C. |
Counsel for the Appellant |
| A. Budlovsky, Q.C. |
Counsel for the Respondent |
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Place and Date of Hearing and Judgment: |
Vancouver, British Columbia |
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15 November 2007 |
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Date of Written Reasons: |
22 January 2008 |
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Written Reasons by: |
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| The Honourable Mr. Justice Smith |
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Concurred in by: |
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| The
Honourable Chief Justice Finch |
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Reasons for Judgment of the Honourable Mr. Justice Smith:
[1] At the hearing of this sentence appeal, we granted leave to appeal and allowed the appeal with reasons to follow. The appeal was brought from a sentence of five and one-half years’ imprisonment (after credit of two and one-half years for pre-sentencing custody) imposed on March 22, 2007 by Mr. Justice Parrett in the Supreme Court of British Columbia upon the appellant’s plea of guilty of manslaughter. We set aside the sentence and substituted a sentence of three years’ imprisonment. These are my reasons for that disposition.
[2] The appellant entered his plea with the consent of the Crown after a ruling of Mr. Justice Parrett on a voir dire at the commencement of the appellant’s second trial on an indictment charging him with second degree murder of Chester Charlie, who was shot to death at the appellant’s home in Fraser Lake on May 6, 2000. On October 3, 2001, the appellant was convicted by a jury of second degree murder and was sentenced to life in prison without eligibility for parole for ten years. On September 9, 2003, this Court dismissed his appeal: see 2003 BCCA 477, 186 B.C.A.C. 225. On May 19, 2005, the Supreme Court of Canada allowed his further appeal, set aside his conviction, and ordered a new trial: see [2005] 1 S.C.R. 627, 2005 SCC 27.
[3] I will adopt the summary of the circumstances of the offence set out in the reasons given by the Supreme Court of Canada:
[8] In the early morning hours of May 6, 2000, in Fraser Lake, British Columbia, at the end of a long night of drinking, an altercation between two men left one dead and another in police custody. The evening before, Mr. Gunning had a party at his home, inviting some friends. Although the party did not really get started until later in the day, Mr. Gunning started his drinking in the early afternoon of May 5. His common law spouse left the party some time between 11 p.m. and midnight to have a few drinks with some friends at a local pub. She returned around 3 a.m. and many of the pub occupants followed, none of whom were invited. Among them was Chester Charlie. He did not know Mr. Gunning or his common law spouse.
[9] Shortly before the shooting, Mr. Gunning found Mr. Charlie sitting on the edge of his bed going through the bottom drawer of his night stand. He became angry and asked Mr. Charlie "what the fuck he was doing". He told Mr. Charlie to get out, to which Mr. Charlie responded "get the fuck out". Mr. Gunning told Mr. Charlie that it was his house and that he should get out. Mr. Charlie then laid back on the bed, crossed his feet and said "[m]ake me". When Mr. Gunning went to brush Mr. Charlie's feet off the bed, Mr. Charlie kicked him back up against the door. Mr. Gunning testified that he was scared, wanted Mr. Charlie out of his house, felt he needed to intimidate or scare him and was too drunk to fight.
[10] Mr. Gunning kept a shotgun, unloaded, in a locked storage locker, the keys to which were kept in a toolbox in the basement. Mr. Gunning had no recollection of going to the basement, getting his keys, opening the locker, obtaining and loading the shotgun or returning upstairs. He did remember going back into the bedroom with the shotgun in hand. Mr. Charlie was sitting on his bed. He testified that he did not threaten or point the gun at Mr. Charlie. When he told Mr. Charlie to get out of his house, Mr. Charlie laughed, called him a "real pussy", left the bedroom and started walking down the hall.
[11] Mr. Gunning testified that, relieved Mr. Charlie was leaving, he followed him down the hall. Believing Mr. Charlie had gone, Mr. Gunning began to go down the stairs to the basement when he heard a noise. He went back upstairs and saw Mr. Charlie leaning over a coffee table in the living room. He asked Mr. Charlie what his problem was. Mr. Charlie responded by saying "fuck you" and spat at him. Mr. Gunning "shook his fists" at Mr. Charlie and said "[j]ust get out." In that instant, he saw Mr. Charlie lying on the coffee table in a pool of blood. Mr. Gunning testified that he had been holding the shotgun in one hand, "like you'd hold a pistol". He testified that he ejected the shell from the shotgun, and at that moment "everything closed in on [him]". The time was around 6 a.m.
[12] At approximately 6:10 a.m. Mr. Gunning placed a call to Sgt. Appleton, whom he knew, telling him that he had shot someone and that he had a "shotgun with two shells in it". Mr. Gunning testified that he did not remember any of the conversation. Mr. Gunning was soon after arrested in his basement. The shotgun was found on a couch in the basement holding an additional shell in its chamber. Another live round was found on the couch beside the weapon. A live shell was also found beside the deceased's head, along with a spent shell, fired from the weapon, under his leg.
[4] The appellant was arrested on May 6, 2000 shortly after the homicide. He was granted bail ten days later and remained on bail until his conviction on October 3, 2001. Thereafter, he was released on bail for periods of time pending his appeal to this Court and, after his appeal to the Supreme Court of Canada was allowed, pending his new trial. He was returned to prison when the sentence herein was imposed, where he has remained to date. His sentencing proceeded on the basis that, as of the sentencing date, he had served 886 days of his life sentence for murder and had been on bail and bound by restrictive conditions for 1,567 days.
[5] In accepting the plea of guilty of manslaughter, the Crown acknowledged that the appellant’s consumption of alcohol raised a reasonable doubt as to his intention to kill Mr. Charlie. The Crown submitted that the appropriate range of sentence in the circumstances was eight to 12 years, subject to double credit for the first ten days of custody and to one-for-one credit for the approximately two and one-half years served by the appellant on the murder sentence. The appellant sought credit of three-for-one or two and one-half-for-one for the time served on the basis that he had been wrongly stigmatized as a murderer and that the time served amounted to “very hard time”, which was exacerbated by the restrictive conditions of his bail and the long delay from the inception of criminal proceedings to their final disposition. He sought a sentence of one day which, on his calculation of pre-sentencing credit, would have represented an effective sentence of approximately six to seven and one-half years.
[6] The learned trial judge did not accede to the appellant’s submissions. After concluding that eight years would be a fit sentence, he said,
[52] I have read with interest Mr. Orris's [appellant’s counsel’s] submissions and cases on the submission that this accused should be credited at a rate of 2.5 to one or three to one for the time he has served. While the rule of thumb for pre-trial custody is two to one, it is no hard and fast rule. The extension of that proposition has been a fertile field for defence counsel for some years, and the present case is, I suggest, an innovative approach by counsel.
[53] In my view, such an approach would ignore the entire underlying rationale for the increased credit as it is outlined in the authorities. This accused was released on bail after 10 days pre-trial custody. The balance of time served was on his sentence after his conviction in relation to the present offences albeit for a conviction that has since been set aside. In my view, he had full access to all programs and other benefits of the jail system as any prisoner under sentence would, and the underlying principle and rationales are restricted in their application and should not be extended in the circumstances of this case.
[54] I would credit the accused at a rate of two to one for his pre-trial custody, but only straight time for the balance of the time served. I sentence you, Mr. Gunning, sir, to serve a term of imprisonment of eight years less 2.5 years for the time you have already served.
(His reasons are indexed at 2007 BCSC 505, [2007] B.C.J. No. 750 (QL)).
[7] Before us, the appellant contended that the trial judge had made a number of errors in principle. I find it necessary to deal with only one of these contentions.
[8] I agree with the appellant’s submission that the trial judge erred in principle in paragraph 53 of his reasons, quoted above. The absence of rehabilitative programs is not the “entire rationale for increased credit” for pre-sentencing time served in custody. The trial judge overlooked the companion consideration – pre-sentencing custodial time does not normally count for purposes of parole eligibility and statutory release. Justice Laskin explained the rationale in R. v. Rezaie (1996), 31 O.R. (3d) 713, 112 C.C.C. (3d) 97 (C.A.) at 104:
Section 721(3) [now s. 719(3)] of the Criminal Code provides:
In determining the sentence to be imposed on a person convicted of an offence, a justice, provincial court judge or judge may take into account any time spent in custody by the person as a result of the offence.
Although this section is discretionary, not mandatory, in my view a sentencing judge should ordinarily give credit for pre-trial custody. At least a judge should not deny credit without good reason. To do so offends one's sense of fairness. Incarceration at any stage of the criminal process is a denial of an accused's liberty. Moreover, in two respects, pre-trial custody is even more onerous than post-sentencing custody. First, other than for a sentence of life imprisonment, legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial (or before sentencing). Second, local detention centres ordinarily do not provide educational, retraining or rehabilitation programs to an accused in custody waiting trial. For these reasons, pre-trial custody is commonly referred to as "dead time", and trial judges, in deciding on an appropriate sentence, frequently give credit for double the time an accused has served.
[My emphasis.]
These remarks were adopted by this Court in R. v. Mills, 1999 BCCA 159, 133 C.C.C. (3d) 451, at para. 42 and by the Supreme Court of Canada in R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18, at para. 28.
[9] Here, the 886 days served by the appellant on his life sentence for murder does not count for parole eligibility or statutory release and, by giving one-for-one credit against the eight-year sentence for manslaughter, the trial judge denied him this benefit. The loss of this benefit works unfairly to the appellant in a way that becomes readily apparent when the effect on the manslaughter sentence of his time served under the life sentence is examined. The trial judge gave the appellant two and one-half years’ credit (30 months) against a fit sentence of eight years for manslaughter, and imposed a sentence of five and one-half years (66 months). The appellant will be eligible for parole after serving one-third, or 22 months, of that sentence: Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 120(1). However, given the 30 months he served on the life sentence for murder, he will have served a total of 52 months by his parole eligibility date. Thus, if he is released at the earliest opportunity under the current sentence of five and one-half years, he will have been in custody for 20 months longer than if he had been convicted of manslaughter and sentenced to eight years after his first trial. Looking at the sentence another way, parole eligibility after 52 months would translate to a sentence of 156 months or 13 years. Upon recognizing this unfairness during the hearing of this appeal, Crown counsel conceded that the appellant should be placed in the same position as if he had been convicted of manslaughter and sentenced to eight years after his first trial and that the sentence must therefore be adjusted.
[10] However, it is not possible to superpose a fit sentence on an eight-year sentence notionally imposed after the first trial such that parole eligibility and statutory release coincide perfectly. A sentence focussed entirely on reconciliation of parole eligibility and statutory release dates would not be a fit and just sentence for the appellant’s crime. Rather, it would be a very short sentence in a provincial institution. As well, there would be no subsequent period of supervised parole to assist in the appellant’s reintegration into the community.
[11] Accordingly, in my view, two-for-one credit should be given for the 30 months served on the life sentence rather than the one-for-one credit given by the trial judge. This would reduce the eight years by 60 months and would result in a sentence of three years, which I would substitute for the five and one-half years imposed by the trial judge.
[12] On this basis, the appellant will be eligible for parole after serving one year, that is, on March 23, 2008. His total time served as of his parole eligibility date will be 42 months (the 30 months served on the earlier life sentence plus 12 months served on the current manslaughter sentence). This translates notionally to a sentence of ten and one-half years which, although greater than the eight years considered fit by the trial judge, is not so much greater that it could be said to be demonstrably unfit. Moreover, it is significantly less than the notional sentence of 13 years that the trial judge effectively imposed. In the result, if the appellant should be granted parole at the earliest available date, which seems likely since we are advised he has been a “model prisoner”, the result will be that he will have served ten months more than if he had been sentenced to eight years for manslaughter after his first trial, and ten months less than he would serve under the impugned sentence. As well, he will be subject to supervised parole when he is released. This sentence strikes an appropriate balance in the unusual circumstances of this case between the interest of the appellant in obtaining early release for good behaviour and the interests of society in his serving a fit and just sentence and, as well, in his rehabilitation and orderly reintegration into society as a law-abiding citizen.
[13] It is for those reasons that I concluded that the appeal should be allowed, the sentence of five and one-half years set aside, and a sentence of three years substituted.
“The Honourable Mr. Justice Smith”
I agree:
“The Honourable Chief Justice Finch”
I agree:
“The Honourable Mr. Justice Frankel”