COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Sanghera,

 

2012 BCCA 459

Date: 20121108

Docket: CA040030

Between:

Regina

Respondent

And

Navdip Sanghera

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Garson

The Honourable Madam Justice A. MacKenzie

On appeal from: Supreme Court of British Columbia, May 29, 2012
(R. v. Sanghera, 2012 BCSC 901, Vancouver Registry 25797)

Oral Reasons for Judgment

Counsel for the Appellant:

I. Donaldson, Q.C.

Counsel for the Respondent:

J. Oulton

Place and Date of Hearing:

Vancouver, British Columbia

November 8, 2012

Place and Date of Judgment:

Vancouver, British Columbia

November 8, 2012


 

[1]             FINCH C.J.B.C.:  The appellant seeks leave to appeal and, if leave is granted, appeals from sentences imposed on him in the Supreme Court of British Columbia on 30 May 2012 for his convictions on three counts of possessing a loaded prohibited or restricted firearm, contrary to s. 95(1), one count of being in a vehicle knowing it contained a firearm contrary to s. 94(1), and one count of possessing a firearm while prohibited from doing so contrary to s. 117.01(1).

[2]             On each of the first four counts the judge sentenced the appellant to seven years’ imprisonment, to be served concurrently.  The judge credited the appellant with double time for the three years and one month spent in pretrial custody, resulting in an additional 10-month sentence on each of the first four offences, all to be served concurrently.

[3]             On count five, possessing a firearm while prohibited, the judge sentenced the appellant to two years’ imprisonment to be served consecutively to the ten months sentences on the first four counts.

[4]             The Crown’s position before the sentencing judge was that a global sentence of seven years would be appropriate.  The defence argued for a six-year sentence.

[5]             On this appeal, the appellant contends the learned sentencing judge erred in failing to give sufficient weight to the Crown’s position, and in failing to advise counsel she was considering a sentence greater than that sought by the Crown.  The appellant also submits that the sentence is harsh and excessive and was not appropriate in its totality.

[6]             The appellant applies for leave to adduce fresh evidence touching on his prospects for rehabilitation.  The appellant was sentenced together with his brother, a cousin, and other accused.  The judge set out the appellant’s personal circumstances and his criminal record.  She described the circumstances of the offences in detail at 2012 BCSC 733, and summarized them briefly at sentencing.

[7]             The appellant admitted that he was subject to a firearms prohibition at the time of these offences.

[8]             The judge found that all three guns of which the appellant had possession were loaded and ready for immediate use.  She summarized the aggravating circumstances of the appellant’s offences as follows:

[25]      ...

5.         Navdip Sanghera’s criminal record includes a recent similar conviction for possessing a prohibited firearm.

6.         He committed his present offences less than six months after being released from custody for that conviction.

7.         He committed these offences also while subject to a ten-year firearms prohibition order, imposed on him as part of his sentence for the previous offence.  While his violation of this court order is the subject of the separate offence of possessing a firearm while prohibited from doing so (contrary to s. 117.01(1)), it also aggravates the firearms possession offences.  Care must be taken, however, not to effectively sentence him twice for this conduct.

8.         Navdip Sanghera’s offence of possessing a firearm while prohibited from doing so is aggravated by the fact that the firearms he possessed were prohibited or restricted firearms and were three in number.  Care must again be taken not to double-sentence him in relation to this factor.

[9]             She also considered the relevant mitigating circumstances.

[10]         Her reasons for sentence included this:

[47]      Boby and Navdip Sanghera’s additional offences in my view require consecutive sentences, subject to the totality principle, because they represent different and serious attacks on the rule of law and society’s institutions for the maintenance of order and a peaceful community.  Initially released on bail on the November 8, 2008 charges, Boby Sanghera paid no heed at all to the no-contact condition which must have been fundamental to the release he was granted.  Navdip Sanghera was sentenced not much more than a year before November 8, 2008 for a similar offence in relation to a loaded semi-automatic pistol in the village at Whistler, B.C., and was prohibited from possessing firearms.  Nonetheless, he committed these offences less than six months after his release from jail on the previous offence.

[48]      Both of these additional offences are serious, but Navdip Sanghera’s is more so as its maximum penalty of ten years’ imprisonment indicates, while, as I noted earlier, Boby Sanghera’s offence of failing to comply with a condition of his recognizance of bail carries a much lower maximum sentence of two years’ imprisonment.  I note, however, that because some of the conduct and the harm involved in Navdip Sanghera’s offence of violating the firearms prohibition order is also reflected in his other offences (possession of loaded restricted or prohibited firearms), the sentence I will impose for this offence will be lower than it would otherwise be.

[49]      I do not agree with Ms. Elden’s submission that, with double credit for pre-sentencing custody, Savdip Sanghera has served more than a fit sentence would require.  However, I agree with the Crown that he has served a period equivalent to a fit sentence.

[50]      In determining the sentences I am about to impose, I have carefully considered counsels’ submissions and, in particular, the Crown’s position that Boby Sanghera’s sentence should involve no further imprisonment, and that Navdip Sanghera’s sentence should involve only a further ten months’ imprisonment.  I do not lightly depart from the submission of experienced and capable counsel.  However, in my view departure is necessary to achieve sentences that respond properly to the gravity of the offences and the threats they pose to society and social order.

[51]      Boby Sanghera and Savdip Sanghera are first-time offenders in this type of offence.  Navdip Sanghera is not a first-time offender; however, he is a relatively young offender.  The rehabilitation of the offenders is therefore an important objective in relation to all three.  In all the circumstances, I conclude that this process requires very close supervision of the offenders, whether in the community or in a custodial setting.

[11]         She concluded by imposing the sentences described above.

[12]         In my respectful view, and despite counsels’ able submissions, I am not persuaded that the judge made any error of law or principle, or that the global sentence was unfit.

[13]         The vehicle in which the appellant and the other occupants and weapons were found on 8 November 2008 was stopped by the police after they had followed it for some time.  The serial number on one of the weapons was obliterated, and on a second weapon was partially obliterated.  The appellant’s DNA was found on two of the weapons.

[14]         The appellant had a recent conviction for a similar offence, and he committed these offences while subject to a 10-year firearms prohibition.  He committed these offences less than six months after his release from jail on the previous offence.

[15]         In my view, the sentences imposed are within the range for similar offences with offenders in similar circumstances.

[16]         Counsel in this case did not make a joint submission on sentence.  The judge carefully considered counsels’ submissions, but she was not bound to accept the Crown’s position.

[17]         In my respectful view, the application to adduce fresh evidence does not meet the well-known criteria.  The proffered evidence could have been adduced in the court below.  As well, the trial judge clearly directed her mind to the appellant’s relatively young age and the prospects for his rehabilitation.

[18]         I would dismiss the application to adduce fresh evidence.

[19]         In all the circumstances, it cannot in my view be said that a further custodial sentence of two years and 10 months was unfit.

[20]         I would grant leave to appeal, but would dismiss the appeal.

[21]         GARSON J.A.:  I agree.

[22]         A. MACKENZIE J.A.:  I agree.

[23]         FINCH C.J.B.C.:  Leave is granted and the appeal is dismissed.

“The Honourable Chief Justice Finch”