



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Sagoo,







2008 
          BCCA 41



Date: 20080124

Docket: CA035607

Between:

Regina

Respondent

And

Jasbir 
    Sagoo

Appellant




Before:


The 
          Honourable Madam Justice Rowles




The 
          Honourable Mr. Justice Donald




The 
          Honourable Madam Justice Saunders



Oral Reasons for Judgment




V. 
          Williams


Counsel for the Appellant




M. 
          Brundrett


Counsel for the (Crown) Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia







17 January 2008




Place 
          and Date of Judgment


Vancouver, British Columbia




24 January 2008



[1]

SAUNDERS, J.A.
: Mr. Sagoo appeals his sentence of eight months imposed 
    on November 14, 2007, on a charge of possession of stolen property (a motor 
    vehicle) and six months on charges of criminal harassment, assault, and fraud, 
    all to run concurrently.

[2]

The charges of assault, criminal harassment and fraud were proceeded 
    with summarily and thus the maximum sentence for them is six months.

[3]

At the sentencing hearing the learned provincial court judge indicated 
    that the appropriate sentence for all offences was eight months, the sentences 
    to run concurrently.  He said:

[10]      
    In all the circumstances, the appropriate disposition is one of a further 
    eight months in jail on all counts, concurrent with one another. It will be 
    followed by 18 months of probation.

[4]

Counsel reminded the sentencing judge that some of the offences were 
    summary conviction matters and the judge then reduced the sentence to those 
    before us.  In doing so he kept the sentence for the one indictable offence, 
    possession of stolen property, at eight months.  These sentences were in addition 
    to three months credit for pre-trial custody.

[5]

Mr. Sagoo says that none of the summary conviction offences justified 
    the maximum sentence of six months.  He says further that as credit of three 
    months was given for pre-trial custody, the effect of the sentences on the 
    summary conviction offences is more than six months and therefore the sentences 
    of six months are illegal.  As to the fourth offence, possession of the stolen 
    motor vehicle, he contends that the judge erred in principle in imposing the 
    sentence of eight months by failing to give due regard to the principle of 
    rehabilitation, the step-up principle, and the guilty pleas, and says in any 
    event that the global sentence imposed was demonstrably unfit.  He says as 
    well that when the sentencing judge lowered his intended sentence on the three 
    summary conviction matters, he should have reconsidered the global sentence 
    and that it was error not to do so.

[6]

Mr. Sagoo was 37 years old at the time of his sentencing and had a 
    criminal record which was accurately described by the judge as consisting 
    mainly of breaches of probation and being unlawfully at large.  It did include, 
    however, convictions for trafficking in narcotics in 1995, possession of stolen 
    property in 1999, theft under $5,000 in December 2006, fraud under $5,000 
    in January 2007, and theft under $5,000 in January 2007.  On the December 
    2006 theft conviction Mr. Sagoo was sentenced to one day, time served and 
    one year of probation.  On the January 2007 fraud conviction he was sentenced 
    to a $300 fine, time served and one-year of probation.  On the theft conviction 
    in January 2007, he was sentenced to 60 days plus time served and placed on 
    probation for six months.  In the result, Mr. Sagoo was on probation when 
    he committed all of the offences now before the court.   The most onerous 
    prior sentence he received is the 60 days imposed in January 2007.

[7]

In chronological order, the first offences before us were harassment 
    and assault.  Mr. Sagoo and his ex-wife had been separated for three years.  
    Although he had been told many times not to contact her, he continued to do 
    so.  The count of harassment alleged harassing conduct between January 1 and 
    June 15, 2007.  This conduct took the form of continuously attending at her 
    residence and calling her.  He often knocked on her window and would attend 
    uninvited and unannounced.  Mr. Sagoo did not dispute that this had occurred 
    daily since their separation.

[8]

On June 15, 2007 Mr. Sagoo assaulted his ex-wife.  He did so by driving 
    away in his vehicle, after an argument, while she was holding onto the window 
    frame.  When the car moved forward she fell to the ground and suffered injury.

[9]

The next offence in time was fraud.  On July 5, 2007, Mr. Sagoo used 
    stolen identification in an attempt to obtain a Sears credit card.  He was 
    caught by a loss prevention officer, and was found to possess a credit card 
    and a drivers licence in another persons name.  Mr. Sagoo was not successful 
    in obtaining the Sears credit card.

[10]

The last of the four offences, possession of stolen property over $5000, 
    occurred on September 11, 2007.  Mr. Sagoo was found driving a stolen Volkswagen 
    vehicle.  He did not acknowledge stealing it, but did acknowledge knowing 
    that it was stolen, saying that he had received it two days earlier from a 
    drug dealer.  The vehicle was valued at over $5000.

[11]

The sentencing judge rejected the possibility of a conditional sentence 
    for these offences, citing Mr. Sagoos previous disregard for orders of the 
    court.  As to his personal circumstances the sentencing judge said, in his 
    brief reasons:

[9]        
    Mr. Sagoo appears at this point in time to realize that he needs to address 
    his severe drug addiction. He appears motivated, although his past has certainly 
    not shown that he has been that motivated. Hopefully this time he will get 
    the message and realize that he needs to deal with his addiction.

[12]

Given the disposition I consider fit, I need not consider in detail 
    the issues relating to the summary conviction offences, except to say that 
    some consideration should have been given by him to the matter of pre-trial 
    custody in the context of the maximum available sentence for those offences.

[13]

The real issue before the Court is the length of the global sentence.  
    On behalf of Mr. Sagoo, Ms. Williams canvassed a number of authorities relating 
    to each of the offences for which Mr. Sagoo has been convicted in support 
    of the proposition that a total sentence in the range of time served, along 
    with pre-trial custody, would be sufficient.  She submits that such a sentence 
    would recognize the step-up principle, give effect to the totality principle, 
    give credit to Mr. Sagoo for his guilty pleas, and be fit.

[14]

On a review of the material before us, I cannot say that the sentencing 
    judge offended the concept of step-up by concluding that a global sentence 
    significantly greater than 60 days was required, given the constellation of 
    offences before the court, their varied nature, the fact he was on probation 
    at the time of the offences, and the time period in which the offences were 
    committed.  The step-up principle was described by Mr. Justice Lambert in
R. v. Robitaille
(1993), 31 B.C.A.C. 7  as being an application 
    of the principle of rehabilitation:

[8]        
    In relation to that argument, I say that the theory that sentences should 
    go up only in moderate steps is a theory which rests on the sentencing principles 
    of rehabilitation.  It should be only in cases where rehabilitation 
    is a significant sentencing factor.  So the conclusion, in any particular 
    case, that the increase in sentence should not be too large rests on a consideration 
    of the circumstance of the particular offender and a desire not to discourage 
    any effort he may be making to rehabilitate himself by the imposition of a 
    sentence that may be seen by him to be a dead weight on his future life.

[15]

The step-up notion is most useful in considering an individual sentence 
    or offences committed in a spree.  While it is still a useful touchstone in 
    considering a global sentence for several offences committed over a longer 
    time period, it does lose a degree of cogency in such a situation as the global 
    sentence must recognize the constellation of cases before the court.  In the 
    final analysis the question is always what is a fit sentence for these offences 
    and this offender.  In considering this question the classic principles of 
    sentencing must be applied.

[16]

Counsel for Mr. Sagoo urges a considerably reduced sentence to recognize 
    the potential for Mr. Sagoos rehabilitation and his guilty pleas.  On this 
    the sentencing judge said, in addition to the comments I have already referred 
    to:

[15]      
    You really need to deal with your addiction. You need to go to a residential 
    treatment centre, sir.  I know your employer is hopeful to get you back, or 
    your partner, but he is going to have to wait.  You need to attend to your 
    needs first and make sure that you are fully recovered and use the probation 
    order that I put you on to assist you in making sure that you stay off the 
    drugs because you know that drugs are going to have you right back into custody.

[17]

In my view, the sentencing judge adequately addressed the potential 
    for rehabilitation and, but for the confusion as to the available sentence 
    for the summary conviction offences, I would not interfere.

[18]

I am persuaded, however, that the confusion on the sentence for the 
    three summary conviction matters which I have described led to a sentence 
    that should be reduced somewhat.  After the matter was brought to his attention 
    the sentencing judge addressed the individual sentences, but did not turn 
    his mind again to the global sentence, in light of this feature of the case.  
    Had he done so, it is quite likely that the sentence imposed would have been 
    of a lesser duration.

[19]

Turning my mind to that feature of the case, I would reduce the global 
    sentence to six months, accomplishing this by allowing the appeal to the extent 
    of reducing the sentence for possession of stolen property to six months.  
    Further, although it makes no difference to the global sentence required to 
    be served by Mr. Sagoo, in consideration of the pre-trial custody that was 
    not considered afresh by the sentencing judge after the confusion was sorted 
    out, I would also reduce the sentences for the three summary conviction offences 
    to three months apiece, with the sentences for the criminal harassment  and 
    assault to run concurrent to each other and to the sentence for possession 
    of stolen property, and the sentence for fraud to run consecutive to the sentences 
    for criminal harassment and assault, but concurrent to the sentence for possession 
    of stolen property.

[20]

ROWLES, J.A.
: I agree.

[21]

DONALD, J.A.
: I agree.

[22]

ROWLES, J.A.
: The appeal is allowed to the extent indicated by Madam 
    Justice Saunders.

The Honourable 
    Madam Justice Saunders


