COURT OF APPEAL FOR ONTARIO

DATE: 20001213

DOCKET: C34303

OSBORNE A.C.J.O., MOLDAVER and GOUDGE JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN )

) Marie Comiskey

Appellant ) for the appellant

• and - )

) Paul Calarco

FOTIOS PLOUMIS ) for the respondent

Respondent/Cross Appellant ) Heard: November 14, 2000

On appeal from the sentence imposed by Mr. Justice E. Ormston, dated April 26, 2000.

MOLDAVER J.A.:

[1] On January 25, 2000, the respondent Fotios Ploumis pled guilty to one count of possession of cocaine for the purpose of trafficking and one count of possession of an unregistered 38 calibre handgun. On April 26, 2000, the trial judge imposed an eight-month custodial sentence on the unregistered weapon charge and a conditional sentence of two years less one day plus three years probation consecutive on the drug charge.

[2] The Crown applies for leave to appeal and if leave be granted, seeks to have the conditional sentence converted into a custodial sentence on the basis that the trial judge erred in blending a conditional sentence with a custodial sentence where the two sentences effectively added up to a penitentiary term of 32 months.

[3] The respondent seeks to uphold the sentences imposed by the trial judge. In the alternative, if the conditional sentence is found to be improper, he cross-appeals and requests that it be reduced from two years less one day to sixteen months less one day, plus three years probation.

Issues on Appeal

[4] The appeal and cross-appeal raise the following three issues:

(1) Did the trial judge err in principle in blending a custodial sentence with a conditional sentence where the two sentences effectively added up to a penitentiary sentence of 32 months imprisonment?

(2) If issue one is answered in the affirmative, is it an error in principle to blend a custodial sentence for one offence with a conditional sentence for a separate offence, where the total sentences do not exceed two years less one day?

(3) If the sentence imposed by the trial judge was wrong in law, how should it be varied at this stage?

[5] Before addressing these issues, I propose to briefly summarize the background facts and the reasons for sentence given by the trial judge.

Summary of Facts

[6] On May 1, 1999, the police attended at 55 Cosburn Avenue in Toronto in response to a distress call regarding the respondent. While attending to the respondent, the police located more than half a pound of cocaine in his knapsack. Some of the cocaine was in bulk but a portion of it was packaged for sale in plastic baggies. In a separate section of the knapsack, the police located a 38 calibre Smith & Wesson revolver for which the respondent had no permit. Also located in the knapsack were 41 rounds of live ammunition, gun oil, a cell phone and pager and identification belonging to the respondent. In a leather bill fold, also belonging to the respondent, the police found over $2,000 in Canadian currency and a small amount of American currency.

Reasons for Sentence

[7] Based on the evidence presented at the sentence hearing, the trial judge concluded that the respondent was a commercial trafficker who used the proceeds of his criminal activity to fund both his and his spouse's drug habit and to provide for daily living expenses. Taking this into account, along with the aggravating feature of the unregistered weapon conviction, the trial judge determined that a penitentiary sentence in the range of 30 months was appropriate.

[8] At the same time, the trial judge was presented with a pre-sentence report and two psychiatric reports which indicated that there was hope for the respondent's ultimate rehabilitation. In short, the reports stated that the respondent, who had been a hopeless drug addict for many years, was now motivated to turn his life around. He had refrained from the use of drugs in the several months leading up to the sentence hearing and although he was not employed at the time of the hearing, he had obtained full-time employment in the interim. The reports further indicated that the respondent had a new job available to him and that he was willing, for the first time in his life, to undergo intensive treatment to overcome his drug addiction.

[9] As his reasons indicate, the trial judge was impressed with this positive evidence. He was satisfied, on the information before him, that the respondent was seriously motivated to change his life and that his rehabilitation could best be achieved in a community setting with strict terms designed to ensure that he take treatment, remain drug free and maintain gainful employment.

[10] Looked at from this perspective, the trial judge concluded that the goals of sentencing could best be achieved by the imposition of a lengthy conditional sentence followed by a substantial period of probation. On the other hand, given the serious nature of the crimes, he felt that a conditional sentence alone was not justified and that a period of incarceration was required to give effect to the principle of general deterrence.

[11] In the end, after considering the relevant case law, the trial judge determined that he could properly impose the blended sentences that form the subject matter of this appeal.

Relevant Statutory Provision

[12] Section 742.1 of the Criminal Code:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purposes of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3. 1995, c. 22, s. 6; 1997, c. 18, s. 107.1.

Analysis

Issue One: Did the trial judge err in blending a custodial sentence for one offence with a conditional sentence for another where the sentences, in total, effectively added up to a penitentiary term of 32 months?

[13] In my view, this court's decision in R. v. Alfred, 1998 5634 (ON CA), [1998] O.J. No. 70 is dispositive of this issue. Alfred was convicted of nine counts of indecent assault and three counts of sexual assault involving nine female complainants and one male complainant. The trial judge recognized, correctly, that the severity of the crimes called for a penitentiary sentence of 33 months. Nonetheless, because of a number of mitigating factors, he was disinclined to send Alfredto the penitentiary. Accordingly, he imposed a custodial sentence of nine months for the three sexual assaults and a consecutive conditional sentence of two years less one day for the nine indecent assaults.

[14] On appeal by the Crown, the conditional sentence was set aside and a sentence of 16 months incarceration was substituted. At page 2 of the reasons, the court explained why, in its view, the trial judge had erred in principle in imposing the blended sentence in question:

The trial judge erred in principle by, in effect, imposing a penitentiary sentence, a portion of which was to be served as a conditional sentence. In our view, this clearly violates the spirit if not the express wording of s. 742.1(a) of the Criminal Code which provides that a conditional sentence can only be made where, inter alia, the court "imposes a sentence of imprisonment of less than two years."

[15] The trial judge in the instant case had the benefit of Alfred at the time of the sentence hearing. In his considered opinion, however, Alfred had been overtaken by the more recent decision of the Supreme Court of Canada in R. v. R. (R. A.) (2000), 140 C.C.C. (3d) 543.

[16] In R. v. R. (R.A.) the accused was convicted of one count of sexual assault and two counts of common assault. He was sentenced to one year imprisonment plus three years probation on the charge of sexual assault and fined $10,000 and $2,000 respectively on the common assault charges. The sentencing occurred prior to the implementation of the conditional sentencing provisions.

[17] R. appealed his sentence to the Manitoba Court of Appeal and by the time of the hearing, the conditional sentencing provisions had been implemented. Taking those provisions into account, the court set aside the sentences imposed at trial and in their place, substituted a six-month conditional sentence for the offence of sexual assault, followed by consecutive conditional sentences of two months and one month for the common assault offences.

[18] On further appeal to the Supreme Court of Canada, L'Heureux-Dubé J., for the majority, chose not to interfere with the conditional sentences of two months and one month imposed by the Court of Appeal for the common assault charges. On the charge of sexual assault, however, she concluded that the six-month conditional sentence, imposed on appeal, was unfit having regard to the gravity of the offence and R.'s degree of moral blameworthiness. Accordingly, she set aside that sentence and in its place, restored the one-year custodial sentence and three years probation imposed by the trial judge. The final disposition of the court is summarized in the concluding paragraph of L'Heureux-Dubé J.'s reasons:

I would therefore allow the appeal, set aside the six-month conditional sentence imposed by the Court of Appeal for the sexual assault, and restore the one-year sentence of incarceration imposed by Schwartz J. for this offence, to be followed by a three-month conditional sentence for the common assaults and three years probation imposed by the trial judge for the sexual assault. I would nevertheless stay the service of the sentences in this case, based on the Crown's concessions in oral argument before this Court.

[19] In arriving at the sentence in the instant case, the trial judge interpreted R. (R.A.) to mean that when an accused is being sentenced for more than one offence, a custodial sentence may properly be blended with a conditional sentence. Accordingly, he concluded that this court's decision in Alfred no longer remained the law and he chose not to follow it. With respect, I am of the view that the trial judge erred in so concluding.

[20] At issue in Alfred was the propriety of blended sentences in the case of two or more offences where the overall sentence called for and effectively resulted in a penitentiary term. In those circumstances, this court concluded that the blending of conditional and custodial sentences violated the spirit, if not the letter of s. 742.1(a) of the Code which provides, inter alia, that a conditional sentence can only be granted where the court "imposes a sentence of imprisonment of less than two years".

[21] Manifestly, no such impediment existed in R. (R.A.). The courts at all three levels agreed that a reformatory sentence was appropriate for the offences in issue and the blended sentences imposed by the Supreme Court of Canada resulted in a total sentence of 15 months plus 3 years probation.

[22] Unfortunately, the trial judge failed to consider this distinction. Had he done so, he no doubt would have concluded that Alfred remains the law in this province. In sum, once the trial judge determined that a penitentiary sentence in the range of 30 months was a fit sentence for the two offences in question, he erred in principle in ordering that a portion of the sentence be served in the community by way of a conditional sentence. I would accordingly answer issue one in the affirmative.

Issue Two: Is it an error in principle to blend a custodial sentence for one offence with a conditional sentence for a separate offence where the total sentence does not exceed two years less one day?

[23] In R. (R.A.), the Supreme Court blended a custodial sentence for one offence with conditional sentences for two others where the total sentence did not exceed two years less one day. Had the majority been of the view that blending the two forms of sentence in these circumstances contravened either the spirit or letter of s. 742.1 of the Code, I believe they would have said so. More to the point, they would not have imposed an illegal sentence.

[24] Manifestly, s. 742.1(a) posed no impediment to the blended sentences imposed by the majority in R. (R.A.) because the total sentence for the three offences did not exceed two years less one day. The problem, if one existed, lay with s. 742.1(b) and in particular, whether combining a custodial sentence for one offence with a conditional sentence for another could be justified having regard to the principles and policy considerations that inform that provision. For convenience, s. 742.1(b) is reproduced below:

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

[25] In R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.), released together with R. (R.A.), Lamer C.J.C., on behalf of the unanimous court, enunciated the principles and policy considerations that govern the interpretation and application of s.742.1(b). It is apparent to me that the majority in R. (R.A.) must have concluded that in a proper case, it would be consistent with those principles to impose a custodial sentence for one offence followed by a conditional sentence for another without offending the spirit or letter of s. 742.1(b).

[26] It follows, in my view, that when an accused is being sentenced for more than one offence[1], it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences. Accordingly, I would answer issue two in the negative.

Issue Three: How should the sentence imposed at trial be varied at this stage?

[27] The respondent has virtually completed the custodial sentence imposed by the trial judge. Fresh evidence introduced on appeal, with the consent of the Crown, indicates that he has successfully completed a substance abuse program while incarcerated and a report from the institution speaks positively about his level of motivation and his desire to remain drug free. In other words, the respondent has lived up to the expectations of the trial judge and it appears that he is making good progress towards his ultimate rehabilitation.

[28] In these circumstances, I think it would be contrary to the respondent's interests and the interest of society to extend his period of incarceration. The better course, in my view, would be to reduce the conditional sentence imposed on the drug offence from two years less one day to sixteen months less one day, to be followed by three years probation. I would not interfere with the terms and conditions of the conditional sentence order or the probation order imposed by the trial judge.

Disposition

[29] In the result, I would grant leave to appeal in both the appeal and the cross-appeal and vary the length of the conditional sentence in accordance with these reasons.

"M. J. Moldaver J.A."

"I agree C. A. Osborne ACJO"

"I agree S. T. Goudge"

RELEASED: December 13, 2000

[^1]: In R. v. Fisher (2000), 2000 4948 (ON CA), 47 O.R. (3d) 397 (C.A.), this court held that it was improper to blend a custodial sentence with a conditional sentence in the context of a single offence.