R. v. Sharma Date:, 2013 BCPC 86

Citation: R. v. Sharma Date: 20130409 2013 BCPC 0086 File Nos: 217335-1; 217353-1 Registry: Vancouver Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. VICTOR RUDI SHARMA EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W. KITCHEN Counsel for the Crown: T. Johnson Counsel for the Defendant: M. Klein Place of Hearing: Vancouver , B.C. Date of Judgment: April 9, 2013

[ 1 ] THE COURT: Mr. Sharma has pled guilty to production of marihuana and a related charge of theft of electricity. He has also pled guilty to three counts of possession of a restricted weapon, two of those counts concerning guns which were found together with ammunition. On another Information, he has pled guilty to possession of a firearm while subject to a previous prohibition order. [ 2 ] On June 20, 2012, police executed a search warrant on the home where Sharma resided with his late mother. Police found 659 plants worth about $220,000, marihuana growing equipment, and a hydroelectric bypass.

This growing operation could be characterized as a rather sophisticated, fairly large home grow op. [ 3 ] In various places in the home, police found weapons. One, a Ruger pistol, was semi-automatic with 13 live rounds loaded in a clip and with the serial number obliterated. The loaded clip and the obliterated serial number were two aspects that were illegal in themselves. Another handgun, a Nornico, also had an illegal loaded clip.

A third similar weapon found elsewhere was unloaded. [ 4 ] Sharma was under a lifetime prohibition order pursuant to s. 109 of the Criminal Code by orders that had been made on May 12, 2000, and February 8, 2006. [ 5 ] After the execution of the search warrant, Sharma was permitted by the police to remain at large until August 28, 2012, when these and other charges were laid and he was arrested. He has been in custody since that date, having been detained by this court on September 11, 2012. [ 6 ] Sharma was born in Fiji in 1959 and came to Canada with his family just a few years later.

He has a brother in Vancouver still, but his father and his other brother died some time ago, and his mother has just died while he has been in custody on this matter. [ 7 ] The rest of Sharma's family have done well in Canada, but Sharma himself has struggled and has a serious criminal record.

His record for criminal offences includes attempted murder, wounding, unlawful confinement, and indecent assaults in 1979, for which he received a global 15-year sentence. [ 8 ] Released after many years, in 2000 he was convicted of assault causing bodily harm, marihuana production, and possession of a prohibited weapon in 2000, receiving a year in jail. [ 9 ] Then in 2006, he was convicted of a first offence of a breach of a s. 109 order, and therefore today's conviction is the second such breach. [ 10 ] Finally, in 2011, he was convicted of assault and threatening. [ 11 ] This is also a second conviction for production of marihuana, and counsel have jointly agreed that a two-year sentence for that is appropriate.

That is certainly the situation and I must impose that sentence. At the same time, I conclude that one year concurrent imprisonment is appropriate as the sentence for theft of electricity on Count 3 on that same information and I impose that. Counsel have jointly agreed to that also. [ 12 ] I conclude, as counsel have agreed, that concurrent sentences may be imposed for the firearms offences, but they are separate and distinct from the marihuana production and must be in addition to that punishment. [ 13 ] The previous criminal record of Mr. Sharma aggravates the weapons situation.

The illegal ammunition clips and the obliterated serial number are aggravations in themselves. It is therefore necessary to impose four-year sentences for each of Counts 4 and 7, and a two-year sentence on Count 10, the unloaded firearm.

Each of these respective sentences of four years, four years, and two years will be concurrent with each other, but consecutive to the two-year total sentence already imposed for the production of marihuana and the theft of electricity. [ 14 ] Finally, because of the previous conviction for the same offence and the previous related weapons convictions, I conclude, as have counsel, that one year consecutive is necessary for the offence charged on the separate information. [ 15 ] That results in a total sentence globally of seven years' imprisonment. [ 16 ] As ancillary orders under s. 109 , I prohibit Sharma once again from possessing firearms, ammunition, and explosives for the rest of his life.

I also order that he provide a DNA sample in the usual form while he is in custody. [ 17 ] The issue that remains is the credit to be given to Mr. Sharma for the time he has been in custody. Concerning that, there are more circumstances to relate. [ 18 ] Mr. Sharma remained at large for two months after the execution of the search warrant but before he was charged. There were no further problems concerning Mr. Sharma. [ 19 ] Reports from custodial authorities are that he has been exemplary while in custody since that time.

Sharma cooperated with the police from the outset and took responsibility for the marihuana and weapons. He was detained, but it was not stated to be as a result of his criminal record. He promptly retained counsel who received Crown disclosure, arraigned the matter, and on September 25th set it for a three-day trial to begin on February 4, 2013.

Up until that point, the matter was dealt with efficiently and expeditiously, and the setting of a date a little more than four months away was also very expeditious. [ 20 ] On November 22nd, there was a pre-trial conference where the matter was discussed in court with Crown and the court, with counsel continuing discussions afterward. There was a resolution of the matter by Ms. Magnin for the Crown and Mr. Klein for the defence, and therefore the February 4th date was set as a disposition date rather than for trial. [ 21 ] On that date, February 4th, Mr.

Klein was held over on another matter and this matter was therefore adjourned to February

20th. On that date, there was a further adjournment to today's date, because Mr. Sharma was assisting police in investigating some information he had concerning contraband. Both counsel, Crown and defence, wanted that matter resolved before this matter was concluded. It ensued that the time was well spent, although it did result in an unfortunate delay of this matter. [ 22 ] I conclude that Sharma has dealt with these charges responsibly and promptly, and his counsel has certainly done the same. There was not a guilty plea at the outset, but this is a complicated matter and such a plea would be very unusual.

There was a search warrant and an information to obtain the search warrant that began this investigation, and both of those had to be examined in detail.

The accused was not found on the premises, and it was certainly necessary for defence counsel to examine the evidence of the Crown concerning Sharma's alleged possession and control of the marihuana and the handguns. [ 23 ] During the pre-trial conference, it was clear to the court that counsel were proceeding professionally with the matter and the dropping of the six charges on the information is an indication that those discussions were necessary and fruitful. [ 24 ] In addition to his processing of the charges, Sharma has been responsible and productive in other aspects of his life. As Mr.

Klein has said, there are indications that Sharma has had an epiphany, perhaps related to the unfortunate death of his mother while he has been in custody. The custodial authorities have reported he has had a very positive attitude. He has committed himself to religion for the past many months and sought the counselling of the prison chaplain, R.B. MacAhonic, who has written to the court that [as read in]: I have listened to many stories.

I am sold on the genuineness of Victor's resolve. [ 25 ] Sharma's own letter to the court gives considerable insight into the maturation and perhaps even rebirth that Sharma has experienced since committing these offences. [ 26 ] Several letters of reference from friends, neighbours, and former employers confirm that there has always been considerable potential for Sharma that he has not realized, but may now finally be realizing. [ 27 ] All of this indicates there are good prospects for Sharma doing well in his relationships with the custodial and parole authorities in the future. [ 28 ] The issue of the time to be credited to Sharma for his time in custody arises because of the truth in sentencing legislation in s. 719 of the Criminal Code .

Subsections (3) and (3.1) read: Determination of sentence

(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 but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. Exception

(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [ 29 ] Those exceptions are, in short, that the person is detained because of their criminal record or they are detained for a bail breach. [ 30 ] The Crown, Mr.

Johnson, agrees that neither of these provisions apply, and the Crown is not alleging that it was stated on the record that Sharma was detained because of his criminal record or that he was detained for a previous breach of his bail. Therefore, subsection (3.1) would appear to allow credit of one and one-half days for each day spent in custody if the circumstances justify it. [ 31 ] The Crown says those must be exceptional circumstances, and this is implicit in the heading of the subsection which is "Exception".

Provincial Court decisions in this province are split on the issue, but our Supreme Court has been consistent in holding that the circumstances must be exceptional and that it is not exceptional that one, as a consequence of this section, loses statutory remission. That is the norm and it is not exceptional. [ 32 ] The Supreme Court cases are discussed and summarized in the latest of these decisions, R. v. La Flam from the Nanaimo Registry Number 73889, August 7, 2012, from Mr. Justice Voith.

At paragraph 84, he says: I would add my own voice to the "tide of judicial opinion" that requires circumstances beyond the ordinary loss of earned remission time to increase credit given for time spent in pre-trial custody. [ 33 ] Mr. Klein argues that the exception does not require exceptional circumstances, only that the circumstances justify it. He says that R. v. Mills from our Court of Appeal, the British Columbia Court of Appeal, on March 12, 1999, Number 566 that year, a five-judge bench of our Court of Appeal, is still good law.

[ 34 ] In that case, Mr. Justice Donald discussed dead time at length and he stated several principles for its application. He stated that if the custody resulted from the offence, then credit should be given, unless there is a sound reason for not doing so.

He alluded to the fact that pre-trial custody is even more onerous than post-sentencing custody, because legislative provisions for parole eligibility and statutory release do not take into account time spent in custody before trial, and because local detention centres ordinarily do not provide education, retraining, or rehabilitation programs to an accused in custody awaiting trial; the reason it is called dead time. He concludes that it might be an error for a judge not to give credit for time in custody without good reason. [ 35 ] Mr.

Klein says, and it seems to be the case, that Mills was not considered in the Supreme Court of B.C. cases that denied credit. [ 36 ] The Hansard Spruce Mills test for following judicial precedent includes consideration of whether the previous courts have considered all the relevant authorities, and in those Supreme Court cases the comments of our Court of Appeal in Mills appear to have been overlooked. [ 37 ] In addition, Mr. Klein says that elsewhere in other Canadian jurisdictions, applying of course the same criminal law, particularly in Ontario, the superior courts have ruled the other way on the issue.

The Ontario Court of Appeal in R. v. Summers , a decision given this past October 11, 2012, in Court Number 53913, in the 2013 Ontario Court of Appeal reports at 147, it concluded that credit for dead time should take into account loss of remission even though it is not exceptional. [ 38 ] At paragraph 100, Mr. Justice Cronk says: . . . I am unable to conclude that the crediting discretion accorded to sentencing judges under s. 719(3.1) does not extend to consideration of the loss of remission and parole eligibility during remand custody.

Such a conclusion would set s. 719(3.1) on a collision course with the touchstone sentencing principles of proportionality and parity, leading to unjust sentences and a corresponding erosion of public faith in the criminal justice system. [ 39 ] Those sentiments echo the comments of our Court of Appeal in Mills , and I conclude under the circumstances that I am not required to find exceptional circumstances, but rather must determine whether the circumstances justify more than a one-to-one credit for time in custody. [ 40 ] In determining that, I observe that in many cases there are delays caused by the accused or counsel that interfere with the orderly administration of justice.

In the past, there were also delays intentionally by an accused simply to get credit for time in custody, so that he could get a sentence of time served. It may be that Parliament was partly motivated to enact s. 719 simply to help move things along and avoid that situation. [ 41 ] It may be necessary to limit credit to one-to-one where an accused or his counsel has delayed matters or acted obstructively. But whether or not that is the reason for the enactment, it was certainly not the case here in this case that there was any inappropriate delay or that the matter was dealt with other than most responsibly.

The time spent to this point has been entirely justified. [ 42 ] Similarly, it may be necessary to limit credit for dead time where an accused has been in custody on other matters or serving another sentence, or had parole revoked on another matter, or is arrested on the subject charge while at large on another charge.

That is an issue in many of the previous cases, but does not arise in this case. [ 43 ] Where an accused has a corrections history or lifestyle circumstances that will likely prohibit consideration for parole, or where his time on remand has been problematic, it may be that credit for more than one-to-one credit would not be appropriate, because any form of early release is entirely unlikely in any event. But in this case, the situation is otherwise. Sharma has cooperated with the police concerning this matter and others.

He has done well in the remand facility and shows every indication of making very positive changes in his life that would warrant consideration for early release. He would not receive similar consideration for his time awaiting trial unless credit is given at this time on a one-and-one-half- to-one basis. [ 44 ] The original reason for the rule of thumb of two-to-one for dead time related to the conclusion that dead time was generally harder than straight time, as the saying goes. In Sharma's case, that has certainly been the situation.

The programs available to him are much more limited in a remand facility than they would be in a federal institution. The food and accommodation are usually considered to be a problem in a remand facility. [ 45 ] But particularly in Sharma's case, he was obviously very close to his elderly mother and he was her caregiver. When he went into custody, she had to be put into a home for the elderly, where she died after a short period of time. It is clear that Mr. Sharma feels very guilty about this and has suffered as a consequence.

That should be considered in determining whether his remand time deserves more credit. [ 46 ] Considering all of these matters, I conclude that giving credit to Sharma on the basis of one-and-a-half-to-one for time in custody he has awaited trial is entirely justified. This will put him in the same position he would have been in had he pled guilty and received a seven-year sentence the day he was arrested.

Such would not have been practical or even possible, and because he has responded so well over the time he has had to wait for this disposition, he should have the advantage of being restored to that position. [ 47 ] It is hardly a gift. He will have his sentence reduced by 115 days, which is a very small percentage of the seven-year sentence, but it will signal to Mr. Sharma that the authorities can be responsive if he is. [ 48 ] Mr. Sharma spent 160 days in custody from August 28 to February 4, when he pled guilty.

He was then adjourned for 16 days to February 20th, and a further 48 days to today, April 9th, that is a total of 229 days. I credit him with having served 344 days, one and a half times that amount.

[ 49 ] I therefore sentence him to a global sentence I imposed of seven years, less credit of 344 days for time served of 229 days. [ 50 ] I waive the victim fine surcharge. (REASONS CONCLUDED)