R. v. Philpott, 2011 NLCA 32

Date: 20110520 Docket: 11/41 Citation: R. v. Philpott , 2011 NLCA 32 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : GILBERT PHILPOTT APPLICANT/APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, J.A. Application Heard: May 18, 2011 Decision Rendered: May 20, 2011 Counsel for the Appellant/Applicant: Self Represented Counsel for the Respondent: Stephen Dawson Welsh, J.A.: [ 1 ] Mr. Philpott, on his own behalf, filed a notice of appeal with respect to the first of two sentences he is serving consecutively.

The issue raised in his notice centres around the effect of 53 days he served prior to being sentenced. This decision disposes of questions as to: (1) legal counsel for Mr. Philpott; and (2) leave to appeal which is required where the appeal relates only to sentence. Preliminary Matters [ 2 ] Mr. Philpott was refused the assistance of legal aid. I considered the question of whether counsel to represent Mr. Philpott should be appointed pursuant to

section 684 of the Criminal Code . There are four factors to be addressed. First, the Crown conceded that Mr. Philpott does not have the means to engage private legal counsel. Second, Mr. Philpott was refused the assistance of legal aid. [ 3 ] However, the third and fourth factors do not support the appointment of counsel for Mr. Philpott. I am satisfied that, given the nature of Mr. Philpott’s issue, he is able to adequately present his case without the assistance of counsel. He is not arguing that the

sentencing judge erred in principle or in law in imposing the sentence which, in fact, was the result of a joint submission following aguilty plea where Mr. Philpott was represented by counsel. Rather, his argument relates to how the sentence is to be calculated andapplied in practice. As discussed below, the argument does not satisfy the threshold of a serious issue to be dealt with on the appeal. [4] In the result, I have declined to order counsel to represent Mr. Philpott pursuant to

section 684 of the Criminal Code. Leave to Appeal [5] This is an appeal as to sentence only and, as such, leave to appeal is required (section 675(1)(

b) of the Criminal Code). Thetest to be applied is whether the appeal is frivolous in the sense of having no arguable basis or sufficient merit. For the followingreasons, leave to appeal is denied, and the sentence imposed by the provincial court judge is affirmed. The explanation for thisdetermination is intended not only to provide my reasons, but also, hopefully, to provide Mr. Philpott with the clarification he seeks as tohis sentence. [6] On January 4, 2011, Mr.

Philpott pleaded guilty and was convicted under the Criminal Code of two charges of assault(section 266), one charge of uttering threats (section 264.1), two breaches of undertakings (section 145(3)), and two breaches ofprobation (section 733.1). He had been in custody since November 13, 2010, that is, 53 days. The provincial court judge imposed asentence of 10 months minus 80 days credit for pre-sentence custody. [7] On February 25, 2011, Mr. Philpott was convicted under the Criminal Code of the indictable offence of assault with aweapon (section 267(a)), and two counts of uttering threats (section 264.1).

He was sentenced by the Trial Division judge to 16 monthsimprisonment. This sentence was to be served consecutively to his earlier sentence. [8] Mr. Philpott has argued that he was sentenced to 10 months plus 16 months, which amounts to 26 months imprisonment. Asentence of more than two years would fall within the penitentiary system under

section 743.1(1) of the Criminal Code. The probationorder made by the provincial court judge would be rendered invalid since probation can be ordered only where the sentence is for a termnot exceeding two years (section 731(1) of the Criminal Code). (See, for example: R. v. Delaney, 2005 NLCA 39.) [9] However, it is clear from the provincial court judge’s decision that Mr. Philpott was, in fact, sentenced to 10 months less timeserved prior to sentencing, credited at 1.5 days per day on remand, that is, 80 days.

When the 80 days is subtracted from the 10 monthsentence, the result is a sentence of 7 months and 10 days. The second sentence of 16 months to be served consecutively results in a totalof 23 months and 10 days. This sentence, being less than two years, would fall within the provincial correctional system under section743.1(3) of the Criminal Code. The probation order imposed by the provincial court judge would remain valid. [10] Mr. Philpott’s suggestion that his sentence should be calculated to be 26 months is not consistent with the decision of theSupreme Court of Canada in R. v.

Mathieu, 2008 SCC 21 , [2008] 1 S.C.R. 723. Speaking for the Court, Fish J. summarized: [19] Manifestly, the words “imprisonment for a term not exceeding two years” used by Parliament in s. 731(1)(

b) refer to thecustodial term imposed at the time of sentence – the actual term of imprisonment imposed by the court after taking into account any timespent in pre-sentence custody. [11] Fish J. drew attention to two exceptions to the general rule that pre-sentence custody, while taken into account duringsentencing, is not part of the sentence imposed on the offender.

He wrote: [7] Although it is possible, on an exceptional basis, to treat the time spent in pre-sentence custody as part of the term ofimprisonment imposed at the time of sentence – in the context of a minimum sentence, for example, or of a conditional sentence – theseare exceptions that prove the rule. As to minimum sentences, see R. v. Wust, [2000] 1 S.C.R. 455, 2000 SCC 18; regarding conditionalsentences, see R. v. Fice, [2005] 1 S.C.R. 742, 2005 SCC 32. [12] These exceptions do not apply to Mr. Philpott’s situation. Indeed, his circumstances fall within the general rule.

Theconclusion follows that, in light of the decision in Mathieu and the nature of Mr. Philpott’s submissions, the appeal filed by Mr. Philpottis frivolous in the sense that it has no arguable basis or sufficient merit. Accordingly, leave to appeal is denied. [13] In the result, Mr. Philpott’s total sentence is confirmed to be 23 months and 10 days imprisonment, being the combination of 7months and 10 days (the sentence imposed on January 4, 2011), plus 16 months (the sentence imposed on February 25, 2011). Theprobation order imposed on January 4, 2011 remains a valid order. __________________________________ B.

G. Welsh, J.A.