



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Rupchand,






2006 
          BCCA 11



Date: 20060106





Docket: CA033392

Between:

Regina

Appellant

And

Piers 
    Rupchand

Respondent








Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Smith



Oral Reasons for Judgment




P. 
          Riley


Counsel for the (Crown) Appellant






Respondent appearing In Person




Place 
          and Date:


Vancouver, British Columbia




6 January 2006



[1]

SMITH, J.A.
: The Crown seeks leave to appeal and, if 
    leave be granted, appeals against the sentence imposed on the respondent by 
    Mr. Justice Williams on 9 September 2005 following his trial and conviction 
    on a charge of possession of cocaine for the purpose of trafficking contrary 
    to s. 5(2) of the
Controlled Drugs and Substances Act
.

[2]

Mr. Justice Williams concluded that a fit sentence would be eight months 
    imprisonment.  He gave the respondent credit for five and one-half months 
    for time spent in custody before sentencing and imposed a sentence of 75 days 
    to be serve concurrently to a sentence of three months imposed on the respondent 
    earlier the same day by Mr. Justice Wilson for one count of possession of 
    cocaine for the purpose of trafficking and one count of possession of heroin 
    for the purpose of trafficking, both on 11 April 2003.  These offences all 
    arose out of what are known as dial-a-dope transactions.

[3]

The Crown submits that the sentence is unfit for two reasons.  First, 
    it contends that Mr. Justice Williams incorrectly gave credit of five months 
    for two and one-half months pre-sentencing custody when credit for that time 
    had already been given by Mr. Justice Wilson in the sentence imposed earlier 
    that day.  Secondly, the Crown submits that the effect of ordering the sentence 
    to be served concurrently to the sentence imposed by Mr. Justice Wilson had 
    the effect that it amounted to no punishment at all.  In the Crown submission 
    the sentence should have been made consecutive to the earlier sentence.

[4]

The chronology of relevant events is as follows.  On 23 November 2002 
    the respondent was arrested and charged with possession of cocaine for the 
    purposes of trafficking.  I will refer to this as the first offence.  After 
    a few days he was released on bail on the first offence.  On 11 April 2003 
    he was arrested and charged with possession of cocaine and possession of heroin, 
    both for the purposes of trafficking.  I will refer to this as the second 
    offence.  After a short period he was released on bail on the second offence.  
    On 24 November 2004 he was convicted by Mr. Justice Wilson on the second offence.  
    On 30 March 2005 he was convicted by Mr. Justice Williams on the first offence.  
    On 3 June 2005 he failed to appear for sentencing by Mr. Justice Wilson on 
    the second offence.  As a result he was arrested and he spent two-and-half 
    months in pre-sentencing custody until the time he was ultimately sentenced.  
    On the morning of 9 September 2005 Mr. Justice Wilson sentenced him on the 
    second offence.  On the afternoon of 9 September 2005 Mr. Justice Williams 
    sentenced him on the first offence.

[5]

Before Mr. Justice Wilson the Crown suggested a fit sentence on the 
    second offence would be 10 months imprisonment and that credit of five months 
    should be given for the two and one-half months the respondent had spent in 
    custody after his arrest for failure to appear for his sentencing on the second 
    offence in June 2005.  The respondent submitted that a fit sentence would 
    be six months and sought an order that the balance after credit of five months 
    for pre-sentencing custody should be served in the community on a conditional 
    sentence.  Mr. Justice Wilson rejected a conditional sentence as an option.  
    He concluded that a fit sentence would be eight months imprisonment, gave 
    the respondent credit for five months pre-sentencing custody and sentenced 
    him to a custodial term of three months.

[6]

In sentencing him that afternoon for the first offence, Mr. Justice 
    Williams considered that the relevant range of sentences was four to twelve 
    months and concluded that in the circumstances a proper sentence would be 
    eight months.  Although Crown counsel advised him that Mr. Justice Wilson 
    had given credit for two and one-half months for pre-sentencing custody and 
    that counsel were agreed that the respondent should not receive credit twice, 
    Mr. Justice Williams, nevertheless, gave five months credit for the two and 
    one-half months spent in custody and a further 15 days credit for a total 
    of eight days served following the respondents arrest before his release 
    on bail on each of the two offences.  Thus he sentenced the appellant to 75 
    days to be served concurrently with the sentence imposed by Mr. Justice Wilson.  
    He said that he directed the sentence to be served concurrently because of 
    the application of the totality principle.

[7]

The Crown argues that Mr. Justice Williams erred by giving credit for 
    time in custody for which credit had already been given by Mr. Justice Wilson.  
    Crown counsel says that this was a failure to exercise his discretion judicially.

[8]

I agree that Mr. Justice Williams erred, but not for the reason urged 
    by the Crown.

[9]

Section 719(3) of the
Criminal Code
provides:

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.

[10]

Thus Mr. Justice Williams was entitled in sentencing the respondent 
    on the first offence to take into account time spent in custody by the respondent 
    as a result of the first offence.  The only time the respondent spent in custody 
    as a result of the first offence was the short period of time following his 
    arrest on that offence before his release on bail.  The two and one-half months 
    for which Mr. Justice Williams gave the respondent credit was time spent in 
    custody as a result of the second offence because it arose out of his failure 
    to appear for sentencing on the second offence.  Similarly, the time that 
    the respondent spent in custody following his arrest in April 2003 was as 
    a result of the second offence.

[11]

In my view, Mr. Justice Williams erred in giving credit in sentencing 
    on the first offence for time spent in custody as a result of the second offence.  
    In that regard see
R. v. Austin
(1996) 78 B.C.A.C. 249 at paras. 
    6, 7 and
R. v. MacMillan
, 2003 BCAC 372 at paras. 30-33.  The 
    respondent was entitled to have the time following his arrest on the first 
    offence and before his release on bail considered and he would have been entitled 
    to credit for that against the eight month sentence that Mr. Justice Williams 
    concluded was a proper sentence in all the circumstances.

[12]

It follows that the 75 day sentence was not a fit and proper sentence 
    for this offence and this offender.   The Crown submits that a sentence of 
    eight months would be a fit and proper sentence and I turn now to the merits 
    of that submission.

[13]

Mr. Justice Williams summarized the circumstances of the offence and 
    the offender succinctly, stating:

[2]  
    The offence involved Mr. Rupchand being observed by the police in the course 
    of a drug surveillance.  The observations caused the officers to believe that 
    he was participating in a dial-a-dope operation, specifically that he was 
    making a drug delivery.  There was an arrest and a search and he was found 
    to be in possession of money, cocaine and other paraphernalia consistent with 
    drug trafficking.  I conclude that this is a situation of so-called dial-a-dope 
    dealing.

[3] 
     With respect to his circumstances, I have the benefit of a pre-sentence report 
    and heard extensive submissions from counsel yesterday.

[4]  
    Mr. Rupchand is a 25-year-old male.  He is married and has one child.  He 
    was born in Vancouver and was raised in the Greater Vancouver area.  As best 
    I can discern, his was a conventional upbringing.  He completed the bulk of 
    his high school and has near Grade 12 education, although not entirely completed.

[5]  
    When he was 18 years of age, he went to Georgia, where he was involved in 
    the operation of a hotel which was owned by a relative.  While there, he met 
    and married the woman who is now his wife.

[6]  
    I am not going to delve into the pre-sentence report other than to say that 
    two features emerge from that report.  First of all, this is a young man who 
    has had more than his share of turmoil and instability in his relations with 
    others.  Secondly, in my view it is significant that he has a very dubious 
    employment record.  In fact, there is no meaningful record of legitimate employment 
    other than his time in Georgia.

[7]  
    In the course of the preparation of the pre-sentence report, it is fair to 
    say that he has been less than entirely forthright with the officer preparing 
    that report.  It appears to be part of a larger pattern of a certain duplicitness.  
    As best I can tell, those tendencies extend to his relations with others, 
    including his parents.

[8]  
    There is to be seen here a disconcerting pattern of non-compliance with community 
    supervision, particularly in respect of his bail and a term of probation in 
    the United States.  It leads to the conclusion that he is a man who demonstrates 
    a certain immaturity and irresponsibility.

[14]

In concluding that the relevant range of sentence was four to 12 months, 
    he said:

[9]  
    The offence of which he stands convicted is serious.  It entails the distribution 
    of hard drugs.  The social evil of the so-called dial-a-dope operation was 
    discussed in a very enlightening way by Mr. Justice Henderson in
R. 
    v. Franklin
, 2001 BCSC 706 a case to which I have been referred.

[10]  
    On my review of the authorities, it is fair to say that the usual sentence 
    that the court will consider will be a term of incarceration.  I have been 
    provided with a number of authorities in this matter and on my review of those 
    authorities, I conclude that a sentence of incarceration in the range of four 
    to 12 months is the fit sentence in such cases.

[15]

Mr. Justice Williams rejected the submission that the sentence should 
    be a conditional sentence of imprisonment because, in his view, such a sentence 
    would not serve the ends of denunciation and deterrence and, as well, because 
    of the respondents poor record of compliance with community supervision in 
    the past.

[16]

In concluding that a proper sentence would be eight months imprisonment, 
    Mr. Justice Williams said,

[14]  
    In determining what sentence is appropriate, I have to consider his individual 
    circumstances.  I also have to look at factors that go in mitigation, as well 
    as those that might stand in aggravation.  In this case, Mr. Rupchand has 
    no criminal record.  He has family responsibilities.  He has family support.  
    Indeed, his parents both addressed the court yesterday.  Surprisingly, both 
    of them apologized for his conduct.  As well, letters have been filed here 
    which attest to support that he has.  Based upon what he had to say yesterday, 
    I conclude that he is remorseful and I must recognize that in part he had 
    a dependency upon cocaine and that was a factor operating at the time of the 
    commission of the offence.

[15]  
    I am also required to consider aggravating circumstances.  In my view it is 
    an aggravating factor that in this case, not long after this event whilst 
    released to bail, he was involved in a not-dissimilar event which has resulted 
    in a conviction.  To my mind, that demonstrates a persistence in his activity 
    in the drug trade.  As noted, I also consider it a factor that he has demonstrated 
    a poor compliance with terms of community release and supervision.

[16]  
    As I have indicated, in my review of authorities, the appropriate range of 
    sentence here is four to 12 months.  In the circumstances of this case, I 
    have determined that the proper sentence for this offender on these facts 
    is a term of incarceration of eight months.

[17]

In submitting that eight months would be a fit sentence for the first 
    offence, the Crown refers to
R. v. To
, [1998] B.C.J. No. 1413 
    (B.C.C.A.);
R. v. Vu
(1998), 103 B.C.A.C. 252;
R. v. 
    Martinez
(2001), 161 B.C.A.C. 174;
R. v. Le
(2002), 
    163 B.C.A.C. 263;
R. v. Nguyen
(2002), 192 B.C.A.C. 191; and
R. v. Edgar
(2000), 143 B.C.A.C. 149, and
R. v. Franklin
[2001] B.C.J. No. 1048, 2001 BCSC 706.

[18]

In my view, subject to credit for pre-sentencing custody on the first 
    offence and subject to what I am about to say, a sentence in the order of 
    eight months would be a fit and proper sentence for the first offence.

[19]

The Crown argued that Mr. Justice Williams committed a second error 
    when he ordered the sentence on the first offence to be served concurrently 
    with the offence imposed by Mr. Justice Wilson in respect of the second offence.  
    The effect, in the Crowns submission, is that the respondent received no 
    punishment at all for the first offence, since the time spent in respect of 
    that offence would have been subsumed in the time spent on the sentence for 
    the second offence.  Accordingly, the Crown submits, Mr. Justice Williams 
    erred in failing to order that the sentences be served consecutively.

[20]

The Crown relies on
R. v. Bernard
, [1986] B.C.J. No. 
    271 (B.C.C.A.) (Q.L.) at p. 2 and
R. v. Stanley
, [1986] B.C.J. 
    No. 695 (B.C.C.A.) (Q.L.).  Those cases presented similar circumstances in 
    which a sentence imposed concurrently with an earlier sentence was subsumed 
    within the custodial time ordered on the first sentence.  The point is well-illustrated 
    by the observation of Lambert J.A. in
R. v. Stanley
, at p. 2, 
    where he said, If these sentences were made concurrent there would be, in 
    effect, no sentence at all for the second assault, an assault that was committed 
    at a time when the applicant was on probation and on judicial release.  Accordingly, 
    in my view, Mr. Justice Williams erred in directing the sentence of 75 days 
    to be served concurrently with the sentence of three months imposed by Mr. 
    Justice Wilson.

[21]

However, since I have concluded that the sentence of 75 days was unfit, 
    the questions are what sentence should be substituted for that sentence and 
    should the substituted sentence be ordered to be served concurrently with 
    or consecutively to the sentence imposed by Mr. Justice Wilson.

[22]

Mr. Rupchand appears before us to day without counsel.  He is on parole 
    from his sentence on the second offence, which I understand expires next week.  
    He tells us that he found the custodial time he has served to be very unpleasant 
    and does not want to return to it.  He has a wife and a young baby.  He says 
    he has a job.  He attributes his offences to a period of turmoil in his life 
    when he turned to drugs and alcohol but says he has now been clean and sober 
    for a lengthy period of time.  He says, in effect, he has learned his lesson 
    and he wants to get on with his life as a husband and father and to stay away 
    from a life of crime.

[23]

The Crown concedes that Mr. Rupchaud should be given credit for the 
    time spent in custody on the first offence prior to his sentencing.  Crown 
    counsel urges us to treat the sentence on the first offence as one that should 
    be served consecutively to the sentence on the second offence.  He submits 
    that, if we consider it necessary, we can adjust the sentence on the first 
    offence to reflect the totality principle.

[24]

The first and second offences were discrete offences separated by a 
    significant length of time.  In most cases, this pattern would give rise to 
    consecutive sentences.

[25]

However, to impose a sentence in the order of eight months in addition 
    to the three months sentence already served would be excessive and harsh 
    in the circumstances of this case, in my view.  Mr. Rupchand is a young man 
    and he shows positive signs that he can be rehabilitated.  I think that to 
    order him returned to custody now for a lengthy period of time might tend 
    to crush his optimism about his eventual re-integration into the community.  
    Nevertheless, his crime cannot go unpunished.

[26]

I think the totality principle should be applied in these circumstances 
    to cap the global sentence for these two offences.  We could do that, as the 
    Crown suggests, by artificially reducing the duration of the sentence for 
    the first offence so that, when grouped consecutively with the sentence for 
    the second offence, they add up to the appropriate global sentence.  However, 
    I think that the sentence imposed on the first offence should be appropriate 
    for the offence, its circumstances, and the circumstances of the offender.   
    Accordingly, I would not direct that the sentence on the first offence be 
    served consecutively.

[27]

Rather, I would substitute a sentence of seven months on the first 
    offence and direct that it be served concurrently to the sentence imposed 
    by Mr. Justice Wilson on the second offence.  In the result, Mr. Rupchand 
    will have to serve a further four months.

[28]

It is regrettable that this case has taken so long to reach its conclusion.  
    There is, though, a positive aspect to that, Mr. Rupchand, in that you have 
    had the chance to change your direction in life and to work towards building 
    a family and responsibly caring for them.  That has not gone unnoticed, and 
    is reflected in the sentence I would impose which, as I have just said, is 
    effectively four additional months and is therefore at the low end of the 
    range of four to 12 months identified by Mr. Justice Williams for the crime 
    that you committed.  I fully expect and hope that, upon completion of this 
    additional sentence, you will continue as you have explained to us today your 
    efforts to build your family and rebuild your life as a responsible citizen.  
    I hope that you will treat this setback as only a brief detour on your positive 
    path.

[29]

For those reasons, I would grant leave to appeal and I would allow 
    the appeal by setting aside the sentence of 75 days and substituting a sentence 
    of seven months imprisonment on the first offence.  I would direct that the 
    sentence be served concurrently to the sentence of three months imposed by 
    Mr. Justice Wilson on 9 September 2005, which the respondent is currently 
    serving.

[30]

FINCH, C.J.B.C.
:  I agree.

[31]

SAUNDERS, J.A.
:  I agree.

[32]

FINCH, C.J.B.C.
:  Leave to appeal is granted and the sentence 
    of seven months imprisonment is substituted for the sentence of 75 days to 
    be served concurrently with the earlier sentence.

The Honourable Mr. Justice Smith


