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Docket: |
CA029502 |
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Registry: Vancouver |
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COURT OF APPEAL FOR BRITISH COLUMBIA |
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BETWEEN: |
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REGINA |
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RESPONDENT (PLAINTIFF) |
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AND: |
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JEFFREY ALLAN DIGIACOMO |
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APPELLANT (DEFENDANT) |
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Before: |
The Honourable Madam Justice Newbury |
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The Honourable Madam Justice Levine |
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The Honourable Mr. Justice Thackray |
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E. Warren |
Counsel for the Appellant |
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W. Rubin |
Counsel for the Respondent |
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Place and Date of Hearing: |
Vancouver, British Columbia |
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July 16, 2002 |
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Place and Date of Judgment: |
Vancouver, British Columbia |
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August 2, 2002 |
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Written Reasons by:
The Honourable Mr. Justice Thackray
Concurred in by:
The Honourable Madam Justice Newbury
The Honourable Madam Justice Levine
Reasons for Judgment of the Honourable Mr. Justice Thackray:
[1] The appellant, Jeffrey Allan Digiacomo, was sentenced on 15 October 2001 in Provincial Court on one count of fraudulently obtaining goods with a value in excess of $5,000. He and a Mr. D.J. Paton were represented by the same counsel at the hearing. Both had pleaded guilty on 12 July 2001. Bail was granted and a pre-sentence report was ordered. The case was adjourned to 6 September 2001.
[2] Mr. Paton obtained an adjournment of his sentencing until 15 October 2001 and on 6 September Mr. Digiacomo applied for and obtained an adjournment to the same date. On 15 October 2001 Mr. Digiacomo failed to appear. Mr. Paton, who had pled guilty to two charges, was sentenced to “one year on each of the counts concurrent, one with the other and a period of three years probation behind that.” As well, the trial judge made a “stand alone order in favour of Amanda Jewellers in the amount of $22,000.”
[3] Following Mr. Paton’s sentencing the trial judge immediately said that the had “heard about Mr. Digiacomo’s involvement in this particular matter” and that from “indirect information” defence counsel did not anticipate that Mr. Digiacomo would be attending. Without hearing further from counsel, the trial judge held that Mr. Digiacomo’s failure to attend was “as a result of attempting to not be sentenced” that day. He said he was “going to impose a sentence of one year on Mr. Digiacomo as well."
[4] Mr. Warren asked “for the record” if the sentencing was to be “without hearing any submissions.” The trial judge replied that there was “not much to submit if he’s not here” and that he “thought [submissions] were made at the outset when I asked whether he was likely to be here or not.” That concluded the hearing.
[5] Mr. Digiacomo was arrested on 11 February 2002. He deposed for this Court that on the following day he was informed by Mr. Warren that his sentencing had proceeded in his absence. He asked Mr. Warren to appeal.
[6] On 16 July 2002 in this Court, Mr. Digiacomo was granted an extension of time to appeal his sentence. The oral reasons for granting the extension have been separately published. However, I will summarize that hearing so as to make understandable the basis upon which this sentence appeal proceeded.
[7] Section 650 of the Criminal Code of Canada provides that, subject to situations wherein the accused can be represented by counsel without appearing in person or where he appears by some form of audio-visual technology, he “shall be present in court during the whole of [his] trial.”
[8] Section 475 of the Criminal Code permits a trial to proceed in the absence of an accused who absconded during the course of his trial. Section 475(1) reads as follows:
475.(1) Notwithstanding any other provision of this Act, where an accused, whether or not he is charged jointly with another, absconds during the course of his trial,
(a) he shall be deemed to have waived his right to be present at his trial, and
(b) the court may
(i) continue the trial and proceed to a judgment or verdict and, if it finds the accused guilty, impose a sentence on him in his absence, or
(ii) if a warrant in Form 7 is issued for the arrest of the accused, adjourn the trial to await his appearance, but where the trial is adjourned pursuant to subparagraph (b)(ii), the court may, at any time, continue the trial if it is satisfied that it is no longer in the interests of justice to await the appearance of the accused.
[9] That section applies to an accused who “absconds”, not simply to an accused who was not present. The determination as to whether the missing accused has absconded is not to be made from the mere fact that the accused was absent. The court must be satisfied that the accused voluntarily absented himself from his trial for the purpose of impeding or frustrating the trial, or with the intention of avoiding its consequences. (See R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont.C.A.), rev’d on other grounds [1990] 2 S.C.R. 1421.)
[10] The Crown does not accept that the trial judge determined merely from Mr. Digiacomo’s absence that he had absconded. It submits that there was no error by the trial judge in finding that the appellant had absconded. That being the case, the Crown submitted that the Provincial Court had jurisdiction to proceed with sentencing. If the trial judge did err in this regard it may be that the Provincial Court was deprived of jurisdiction to proceed with sentencing. However, in view of concessions by the Crown it is unnecessary for this Court to decide that point.
[11] The Crown concedes that the trial judge erred in not allowing counsel to make submissions on sentence pursuant to s.723(1) of the Criminal Code. That section provides that before a sentence is imposed “a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.”
[12] Defence counsel accepted the Crown’s concession and this appeal therefore proceeded on the basis that the Provincial Court had not lost jurisdiction to sentence Mr. Digiacomo either because of a failure to decide whether Mr. Digiacomo had absconded or because he did not allow counsel to make sumbissions. Thus the hearing as to sentence is by way of an appeal to this Court pursuant to the provisions of s.687 of the Criminal Code. This Court may either vary the sentence or dismiss the appeal.
[13] In R. v. Gates, 2002 BCCA 128, it was held that s.687 “is broad enough to permit a review by way of hearing de novo before this court with whatever evidence counsel see fit to place before us.” That is the procedure that was followed and leaves for determination the fitness of the sentence given to Mr. Digiacomo.
[14] Mr. Digiacomo and Mr. Paton were charged with obtaining goods by deceit, falsehood or other fraudulent means from Amanda Jewellers, of a value in excess of $5,000, between 7 June 2001 and 6 July 2001. Mr. Paton was charged separately with the same type of offence involving a different retailer between 20 March 2001 and 30 March 2001.
[15] On 12 July 2001 at a bail hearing, Mr. Warren informed the court that “they plead guilty to all counts on the Information.” Crown counsel then informed that court that those matters involved “a credit card scam” wherein Mr. Paton would contact stores by telephone and make a purchase with a credit card number. He said that Mr. Paton “had a lot of them”, meaning credit card numbers.
[16] At the sentence hearing on 15 October 2001 the Crown detailed the various incidents and gave the dates as 8 June 2001, 11 June 2001, 15 June 2001, 29 June 2001, 4 July 2001 and 5 July 2001. The Crown acknowledges on this appeal that it is “only alleging the last of several transactions encompassed in count 1 as against” Mr. Digiacomo. As to the events of 5 July 2001, the Crown informed the Provincial Court judge as follows:
[On] July 5th, 2001, Mr Johansen arranged for a purchase of about $7000 worth of jewellery and the Delta Police set up surveillance of the residence at 11850-96th Avenue. When the couriers arrived, the driver was advised of the situation and joined by Cst. Sandhu of the Delta Police Department. A number of calls were made to inquire where the package was from the residents.
On the date in question, Cst. Dunn was observing the residence at 96th Avenue. He saw a car in the driveway with two occupants. One person was described as a heavyset male with a goatee, short born hair and a black t-shirt, who is believed to be Mr. Paton. The vehicle left the driveway and a blue Camaro arrived. The passenger of the Camaro got out, looked into the vehicle, looked frustrated and left, apparently finding nothing there.
Later at about 4:00 p.m., Mr. Paton arrives in the blue Chevy, exits the passenger side, goes to the rear of the house, returns to the vehicle and leaves. At about – sorry. That was at about six. About 20 minutes later, Mr. Digiacomo arrives in the blue Chevy, goes to the vehicle where the package has been delivered, enters the vehicle, retrieves the package, returns to a blue Camaro and the vehicle leaves. Delta Police follow the vehicle, top it and arrest the occupants, Mr. Digiacomo, who admits picking up the package from Mr. Paton and says that he’s paid for his actions. He tells the police that he’s done this on at least two previous occasions where he’s been paid 200 to 500, depending on the value of the jewellery.
When interviewed by the police, Mr. Paton states that he did call Amanda Jewellery on July 5th and ordered a Rolex watch. He provided a credit card number to pay for the watch and contacted a courier to arrange delivery. He stated that Mr. Digiacomo picked up the package. Mr. Paton said that he and Digiacomo obtained credit card numbers used in various purchases from the Esso gas station garbage can at 64th Avenue and Scott Road. He said – told the police that he would pay Digiacomo cash for his part and that he had burned the paper earlier containing all the false credit card numbers. He admitted to being involved in previous purchases from the jewellery store between June 8th and June 30th, ordering jewellery using these credit card numbers. ...
[17] The Crown submits that the admissions by Mr. Digiacomo to having “done this on at least two previous occasions” show that he was involved in more than the one incident. That is, that he was intimately involved in the credit card scams. Defence counsel say that this should be taken as being simply steps within the 5 July 2001 transaction.
[18] I find it difficult to interpret it that way. However, in that the Crown agreed that the guilty plea would apply to only one incident, this admission cannot do more than reflect upon Mr. Digiacomo’s life-style. His life-style is better illustrated through his criminal record, which contains several previous fraud offences. His record also includes possession of stolen property, theft, break and enter, mischief and uttering threats.
[19] A pre-sentence report on Mr. Digiacomo details his unfortunate upbringing. An abusive family setting, foster homes, limited education and questionable friends have added to his woes. He has a history of alcohol and drug abuse and, not surprisingly, his employment history is weak. Mr. Digiacomo has not been compliant with probation orders or community supervision.
[20] Mr. Paton had a criminal record containing several previous fraud offences dating from 1994. His longest sentence of incarceration was fifteen months. The sentencing judge did not consider that sentence had been any deterrent to Mr. Paton. The trial judge indicated that he felt specific and general deterrence were the paramount considerations. He said that they outweighed rehabilitation which, in Mr. Paton’s case, was “motivated solely by a desire not to go to jail.” He was there referring to Mr. Paton’s enrolment in Kwantlen College.
[21] The learned judge said that the offence was “jailable” and not suitable for a conditional sentence. He imposed a sentence of one year on each count to be served concurrently plus three years probation.
[22] I am satisfied that if counsel had been allowed to make submissions, the trial judge would have imposed a sentence of one year’s incarceration upon Mr. Digiacomo. There was little that could be said for Mr. Digiacomo to make his case distinguishable from that of Mr. Paton. As was said in R. v. Mafi (2000), 142 C.C.C. (3d) 449 (B.C.C.A.), similar sentences should be imposed on similar offenders for similar offences in similar circumstances.
[23] This court has had the advantage of submissions. Defence counsel suggested that six months would be appropriate while the Crown urged a one year sentence. I am of the opinion that specific deterrence is the most significant sentencing principle in this case. On the basis of Mr. Digiacomo’s criminal record, his background as contained in the pre-sentence report, and in consideration of sentences imposed in the cases to which we were referred, I am of the opinion that a sentence of twelve months incarceration is appropriate.
[24] I would dismiss the appeal.
“The Honourable Mr. Justice Thackray”
I AGREE:
“The Honourable Madam Justice Newbury”
I AGREE:
“The Honourable Madam Justice Levine”