COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pammett, 2016 ONCA 979

DATE: 20161229

DOCKET: C59448 and C60369

Feldman, MacPherson and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent/Appellant

and

Robert Pammett Jr.

Appellant/Respondent

Peter R. Hamm, for the appellant/respondent

Jeremy Streeter, for the respondent/appellant

Heard: December 13, 2016

On appeal from the sentence entered on September 19, 2014 by Justice J. R. McCarthy of the Superior Court of Justice.

ENDORSEMENT

[1] Mr. Pammett was convicted of two counts of possession of cocaine for the purpose of trafficking, one count possession of the proceeds of crime, and one count of fail to comply with a probation order. He was sentenced to six and a half years’ imprisonment, less credit for 34 days of pretrial custody.

[2] There are two sentence appeals. The Crown appeals on the basis that the sentence was demonstrably unfit and the sentencing judge erred in not imposing a half-parole order pursuant to s. 743.6 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Pammett appeals, arguing that he should receive additional credit for pretrial custody in connection with other, unrelated charges that were eventually stayed.

[3] For the reasons that follow, we dismiss both appeals.

Facts

[4] Mr. Pammett was identified pursuant to Project Shrike, an investigation by the Durham Regional Police into cocaine trafficking that began in October 2010. Intercepts of telephone calls and text messages established that Mr. Pammett was engaged in cocaine trafficking in the city of Peterborough. He was arrested on February 10, 2011 and charged with two counts of possession of cocaine for the purposes of trafficking. Further intercepted communications acquired by the police after this arrest formed the basis of an additional charge of possessing the proceeds of crime (together the “Shrike charges”).

[5] Following a contested bail hearing, Mr. Pammett was released on a recognizance on March 4, 2011. He had spent 23 days in jail. On August 15, 2012 Mr. Pammett was re-arrested, and charged with distinct cocaine trafficking offences. These charges were based on a different police investigation, code-named Project Kingfisher (the “Kingfisher charges”). Mr. Pammett chose not to bring an application for bail in relation to the Kingfisher charges. His bail on the Shrike charges was never revoked.

[6] On April 23, 2014 a jury convicted Mr. Pammett of the Shrike charges. On May 15, 2014 Mr. Pammett pled guilty to breach of probation, and agreed that sentencing for that offence should take place at the same time as the sentencing for the offences for which he had been convicted.

[7] The Crown sought a nine-year global sentence. It also sought a half-parole order pursuant to s. 743.6 of the Criminal Code, relying primarily on an intercepted communication between Mr. Pammett and his sister. The Crown submitted that the intercepted communication recorded Mr. Pammett making vile and denigrating comments about his victims, and established that he delighted in exercising control, facilitating addictions, and ruining lives.

[8] At the sentencing hearing, the defence took the position that a global sentence of four years’ incarceration was appropriate. It also argued that Mr. Pammett should receive credit for the time spent in custody on the Kingfisher charges, which charges had not yet come to trial. At the time of sentencing for the Shrike charges, Mr. Pammett had spent approximately 25 months in jail pursuant to the Kingfisher charges.

[9] On September 19, 2014, Mr. Pammett was sentenced to three years for the first possession of cocaine for the purpose of trafficking offence, three and a half years consecutive for the second possession of cocaine for the purpose of trafficking offence, and one year concurrent for the proceeds of crime and breach of probation offences.

[10] The sentencing judge declined to grant the half-parole order, noting that while Mr. Pammett had been convicted of serious drug offences, the facts did not reach the level of unusual violence, brutality or degradation justifying a s. 743.6 order. Of the aggravating factors on sentence listed in s. 10(2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19(the “CDSA”), he noted that the only one present was a prior criminal record.

[11] The sentencing judge gave Mr. Pammett credit for the 23 days served in custody before receiving bail on the Shrike charges. At a 1.5 to 1 ratio, Mr. Pammett received 34 days credit. The sentencing judge declined to give any credit for the time Mr. Pammett spent in custody on the Kingfisher charges while awaiting trial and sentencing for the Shrike charges.

[12] According to fresh evidence filed on consent by Mr. Pammett, on September 3, 2015 the Kingfisher charges were stayed.

Analysis

(a) Crown Appeal

[13] The Crown submits that the sentencing judge erred in his interpretation of s. 10(2) of the CDSA, by treating the aggravating factors listed in that subsection as exhaustive. Consequently, the Crown argues that the sentencing judge failed to consider the intercepted communication between Mr. Pammett and his sister as an aggravating factor on sentence. According to the Crown, the failure to apply this aggravating factor resulted in a sentence that is manifestly unfit.

[14] We do not accede to this submission. While the Crown is correct that the aggravating factors listed in s. 10(2) of the CDSA are not exhaustive, we do not read the reasons for sentence as suggesting otherwise.

[15] The sentencing judge correctly identified that the only enumerated aggravating factor present was that Mr. Pammett had a prior criminal record. He went on to find that the communication between Mr. Pammett and his sister was relevant to “the quality, nature and extent of those offences and the particulars of harm done to victims, directly or indirectly, affected by those offences.” Thus, contrary to the submission of the Crown, the sentencing judge treated the communication between Mr. Pammett and his sister as an aggravating factor on sentence.

[16] In our view, the sentencing judge considered and weighed the relevant aggravating and mitigating factors and imposed a fit sentence.

[17] The Crown also argues that the trial judge’s misinterpretation of s. 10(2) of the CDSA tainted his decision not to grant a half-parole order. We disagree. He undertook the appropriate analysis mandated by R. v. Zinck, 2003 SCC 6, [2003] 1 S.C.R. 41, regarding the imposition of an order under s. 743.6 of the Criminal Code and properly exercised his discretion not to make a half-parole order. There is no basis for appellant interference with that decision.

(b) Defence Appeal

[18] Mr. Pammett submits that he is entitled to additional pre-trial credit for the time spent in custody in relation to the Kingfisher charges. He advances two arguments.

[19] First, he says that the stay of the Kingfisher charges has resulted in a material change in circumstances pertinent to the fitness of his sentence. As a matter of fairness, Mr. Pammett argues that he should receive credit for his pre-trial custody.

[20] The difficulty with this argument is that Justice Rosenberg, writing for the majority in R. v. Wilson, 2008 ONCA 510, 236 C.C.C. (3d) 285, explicitly rejected it. He concluded that giving an offender credit for pretrial custody for unrelated charges would permit an accused to “bank” time spent in custody. Rosenberg J.A. observed, at para. 45:

But, at the end of the day when it comes time to sentence an offender the court can only take into account factors that relate to the particular offence under consideration. The fact that an offender, like the appellant, still happens to be in the appeal system when a flaw in relation to a totally unrelated conviction comes to light is not, in my view, a principled reason for giving that offender credit for the time he or she spent serving the sentence for that unrelated conviction.

[21] Justice Rosenberg recognized that in R. v. Reid, 2005 CanLII 14964 (Ont. C.A.) and R. v. Tsai (2005), 2005 CanLII 22191 (ON CA), 198 C.C.C. (3d) 533 (Ont. C.A.), this court appears to have given some credit for pretrial custody on another offence. However, he noted, at para. 50, that in “both cases the accused was refused bail on the second set of charges (the charges that were later withdrawn) because he was already on bail for the first set of charges. Thus, in part, the time spent in custody for the withdrawn set of charges could be attributed to the first set of offences.” Justice Rosenberg also pointed out that in neither case was the appellant seeking to have the court retroactively take into account time served on another charge.

[22] In the present case, Mr. Pammett did not bring an application for bail on the Kingfisher charges and the bail order related to the Shrike charges was never rescinded.

[23] Counsel for Mr. Pammett argues that his client should not be punished because he did not bring what would likely have been a futile bail application. We do not know why bail was not sought. There may well have been strategic reasons at the time for not seeking bail on the Kingfisher charges and having the Shrike bail cancelled, for example, risking an order under s. 515(9.1) or s. 524(4) or (8) of the Criminal Code, which could have affected the amount of credit for pre-trial custody under s. 719(3.1) of the Criminal Code. The fact remains that Mr. Pammett was not in custody as a result of the Shrike charges. Accordingly, there is no basis to credit the time served on the Kingfisher charges against the sentence for the Shrike charges.

[24] The appellant also relies on s. 719(3) of the Criminal Code, which provides:

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.

[25] This subsection is not available to increase the pretrial custody credit applicable to the Shrike charges: Wilson, at para. 24.

[26] The second argument advanced by Mr. Pammett is that the sentencing judge erred by not considering the pre-sentence custody on the Kingfisher charges as a mitigating factor on sentence. He submits that pursuant to s. 718.2(a) of the Criminal Code the sentencing judge was obliged to consider “any relevant …mitigating circumstances relating to the offence or the offender.” He also relies on s. 726.1 of the Criminal Code, which provides that, “In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.” His argument is that under either section the sentencing judge should have considered the pretrial custody on the Kingfisher charges.

[27] The time spent in custody by an offender on unrelated charges can be considered in a limited way in determining a fit sentence. As Justice Rosenberg stated in Wilson at para. 46, “a sentencing judge is entitled to take into account time spent serving another sentence as part of the complete picture for understanding a particular offender.” Justice Rosenberg cited as one example a situation where an offender with a drug problem received treatment while serving his sentence.

[28] In this case the sentencing judge referenced the fact that while in custody on the Kingfisher charges Mr. Pammett worked as a cleaner and was in a relationship of some permanence, which was relevant to his rehabilitative potential. The sentencing judge also noted the lack of evidence that Mr. Pammett either refused or agreed to participate in available programs while in custody on the Kingfisher charges.

[29] This type of limited consideration of the impact of Mr. Pammett’s time in custody on the Kingfisher charges is consistent with the direction in Wilson. It would have been an error in law for the sentencing judge to go beyond this limited analysis and grant credit for the time served on unrelated charges.

Disposition

[30] We grant leave to appeal sentence to both the Crown and Mr. Pammett, but dismiss both sentence appeals.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“C.W. Hourigan J.A.”