Court of Appeal for Ontario

Date: 2020-06-02 Docket: C67911

Between: Her Majesty the Queen Respondent

And: Zi-Yue Huang Appellant

Coram: Rouleau, Zarnett and Jamal JJ.A.

Counsel: Marianne Salih, for the appellant Nicolas de Montigny, for the respondent

Heard: In-writing

On appeal from: The sentence imposed on October 3, 2019 by Justice Frank D. Crewe of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant pleaded guilty to three counts of robbery from two gas stations at night while wearing a mask and brandishing a knife. At the time of the offences, the appellant was a 28-year-old first offender with serious mental health issues. He was sentenced to 12 months’ imprisonment, followed by three years of probation. He now appeals against his sentence.

[2] The appellant asserts that the sentencing judge erred by: (1) giving him no credit for his pre-sentence custody or time spent under house arrest; and (2) relying on his mental health condition as an aggravating sentencing factor. He claims that both errors impacted the sentence imposed. He submits that the appropriate sentence was 6 months, with a further reduction of 113 days for his pre-sentence custody.

[3] For the reasons that follow, we agree with the first ground of appeal as it relates to the treatment of the pre-sentence custody but we do not agree with the second ground. We substitute a sentence of 12 months, less credit for 75 days’ pre-sentence custody at a rate of 1.5 to 1, or 113 days’ credit, resulting in a sentence of 252 days.

Analysis

(1) The sentencing judge erred by giving no credit for the appellant’s pre-sentence custody

[4] The appellant’s first ground of appeal asserts that the sentencing judge erred in law by giving him no credit for his pre-sentence custody (about 75 days) or the time he spent under house arrest (about 27 months). He says this error impacted the sentence imposed.

[5] The appellant says this ground is supported by an exchange between defence counsel, Mr. Motevalli, and the sentencing judge right after he imposed a sentence of 12 months’ imprisonment. Mr. Motevalli had asked whether the sentencing judge would provide the appellant credit for his pre-sentence custody. The sentencing judge repeated that the sentence was one year and stated that he would not address the issue of pre-sentence custody:

MR. MOTEVALLI: Your Honour, if I may, I think the only thing left is just the credit for the custody.

THE COURT: It is one year.

MR. MOTEVALLI: One year.

THE COURT: That is the sentence. Yes, that is the sentence.

CLERK REGISTRAR: Is there any pre-trial custody time….

THE COURT: … I am not addressing the issue of pre-trial custody, Madam Registrar.

[6] The appellant claims that this exchange confirms the sentencing judge erred in law by failing to give credit for either the pre-sentence custody or the strict bail conditions and that this error impacted the sentence imposed.

[7] The respondent concedes that the sentencing judge erred in not providing reasons for refusing to address pre-sentence custody, but asserts that this error did not impact the sentence imposed and that the sentence remains fit. The respondent also asserts that even if the sentencing judge failed to consider the appellant’s bail conditions, the sentence remains fit and should not be disturbed.

[8] We agree that the sentencing judge erred in law by failing to address credit for the appellant’s pre-sentence custody.

[9] Section 719(3) of the Criminal Code, R.S.C. 1985, c. C-46, gives a court discretion to consider pre-sentence custody in determining the sentence. Section 719(3.2) requires the court to give reasons for any credit granted for pre-sentence custody, while s. 719(3.3) requires the court to state the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed. The Supreme Court has stated that this is “not a particularly onerous requirement, but plays an important role in explaining the nature of the sentencing process, and the reasons for giving credit, to the public”: R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, at para. 74. This same obligation to give reasons applies when the sentencing judge refuses to give credit for pre-sentence custody: see R. v. Evans, 2019 ONCA 715, 147 O.R. (3d) 577, at para. 290.

[10] Here, the sentencing judge refused, without giving reasons, to address the issue of pre-sentence custody. Other than repeating that the sentence imposed was “one year” and saying, “I am not addressing the issue of pre-trial custody”, he did not comply with ss. 719(3.2) or 719(3.3) of the Criminal Code. This was an error of law.

[11] This error, on its own, however, does not justify this court interfering with the sentence. An appellate court can interfere with a sentence in only two situations: (1) where the sentence imposed by the sentencing judge is “demonstrably unfit”; or (2) where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and such an error impacts the sentence imposed: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R 1089, at paras. 11, 44; R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at para. 24. In both situations, the appellate court can set aside the sentence and itself determine the fit sentence in the circumstances.

[12] The respondent says that the sentencing judge’s error did not impact the sentence imposed. The respondent argues in its factum that “[w]hile the sentence may have been arrived at through an error in principle, the sentence imposed was the one intended by the sentencing judge”, because “the quantum of sentence was arrived at with pre-sentence custody in mind” (emphasis in original). The respondent notes that pre-sentence custody was raised during sentencing submissions and again right after the sentencing judge imposed the sentence, when the sentencing judge confirmed the sentence of one year and stated he would not address the issue of pre-sentence custody.

[13] In our view, there are three possible interpretations of how the sentencing judge treated the pre-sentence custody:

1. The sentencing judge took the pre-sentence custody into account, but did not explain the calculation.
2. The sentencing judge intended to give no credit for the pre-sentence custody.
3. The sentencing judge failed to take the pre-sentence custody into account after determining the fit sentence.

[14] The respondent argues for the first interpretation; the appellant argues for the third interpretation.

[15] There is no doubt force in the respondent’s interpretation. The sentencing judge knew the appellant had served some time in pre-sentence custody, but still imposed a 12-month sentence even when the issue of credit for pre-sentence custody was raised with him.

[16] We have concluded, however, that this is not the correct interpretation of the sentencing judge’s comments, when viewed in the context of the record, the issues, and the submissions of counsel. As we will explain, the third interpretation – that the sentencing judge erred by not taking the pre-sentence custody into account after determining the fit sentence – is the only plausible interpretation.

[17] In essence, the sentencing judge intended to adopt the respondent’s sentencing recommendation of a fit sentence of 12 months, before providing credit for pre-sentence custody. Most of the pre-sentence custody occurred after the Crown first recommended 12 months, a recommendation that the Crown later maintained even while the appellant was in custody. The submissions of counsel and the sentencing judge’s comments suggest that the credit for pre-sentence custody would be calculated later. But this never happened. The sentencing judge simply failed to consider the pre-sentence custody after determining the fit sentence.

[18] The relevant context is as follows.

[19] The appellant pleaded guilty on September 18, 2018 but sentencing submissions did not begin until May 15, 2019. The reason for the delay was that defence counsel wanted a psychiatric assessment of the appellant. The Crown agreed this would be useful to make a sentence recommendation, since it appeared that the appellant’s mental health issues partly informed his criminal behaviour.

[20] When the parties returned on May 15, 2019, the Crown acknowledged the appellant’s mental health issues “warrant[ed] a more merciful sentence than might otherwise be mandated by his offences”. While the appellant’s diagnosis was unclear it was ultimately believed to be either marijuana-induced schizophrenia or, more likely, bipolar 1 disorder fueled by marijuana. The Crown therefore suggested a sentence range of “12 to 18 months incarceration”, but “closer to 12 than to 18”, and then finally recommended “something in the area of 12 months”. The defence sought a 90-day sentence to be served intermittently followed by probation. The sentencing judge stated that if he was going to consider imposing a sentence in line with the defence proposal, he wanted to know if the appellant was going to continue to see mental health professionals before he passed sentence. He added that “the sentencing is too early” and that he was “certainly willing to consider a sentence that is less than that which [the Crown] has recommended, provided I can see that there have been results.” The sentencing hearing was therefore adjourned.

[21] In the summer of 2019, the appellant’s bail was revoked, and he was in custody for most of the summer and into the early fall. It was during this period that the appellant accumulated most of his pre-sentence custody – that is, after the Crown had recommended a 12-month sentence on May 15, 2019.

[22] Sentencing submissions resumed on September 20, 2019. Defence counsel advised the court that the appellant was now in custody and submitted that his environment at home had not been supportive and had stopped him from getting the mental health help he needed. The sentencing judge asked defence counsel, “How long has he been in custody now?” Defence counsel at first ball parked “around 135 real days in custody”, but then added “an exact calculation will need to be made”. The sentencing judge responded, “We can sort that out”. Even so, before the sentence was imposed there was no further discussion of the actual number of days of pre-sentence custody. Counsel on appeal agree that the actual number was between 75 and 77 days.

[23] The sentencing judge then asked defence counsel for his position on sentence. Defence counsel now proposed “less than 90 days” to be served intermittently, “so that the time that he spent in custody would be marked down in a certain manner”. The Crown’s position remained 12 months.

[24] The sentencing judge concluded that he was “not in a position at this point to determine a fit sentence”. He stated:

I don’t think it is advisable at this stage for me to simply say, “Okay, I’m going to choose a number between that sought by the Crown and that sought by the defence” and impose that number and minus off the dead time.

[25] He therefore adjourned the sentencing again to allow for the preparation of a pre-sentence report. The appellant remained in custody.

[26] On October 3, 2019, the sentencing submissions continued. Once again, the defence sought a 90-day sentence to be served intermittently, mentioning the appellant’s pre-sentence custody without specifying the number of days. The sentencing judge advised that this proposal was “[n]ot in the cards”. He explained:

[Crown counsel] had considered a sentence in the area of 12 to 18 months, but in view of Mr. Huang’s circumstances in the mental health issues that were at play, that perhaps I ought to consider a sentence in the nature of about 12 months in view of his circumstances, which is a very lenient sentence, 12 months. And he hasn’t served anywhere approaching that… .

[27] The sentencing judge later added:

But [the appellant has] inched his way back up to the bottom of that range that [the Crown recommended] … looking at something in the nature of a year, a one-year sentence, but one that could be served in an institution where he’s going to get some help like Ontario Correctional Institute, for instance.

[28] Following this, the sentencing judge briefly retired, returned, and imposed the 12-month sentence.

[29] In our view, the record as a whole establishes the following:

• The Crown recommended a 12-month sentence as a fit sentence before the appellant served most of his pre-sentence custody and maintained this recommendation even after the appellant was in custody.
• While the sentencing judge was initially prepared to consider a sentence much lower than the Crown proposed, he concluded that the appellant had “inched his way” up to the Crown’s recommendation of 12 months as a fit sentence. He found the Crown’s recommendation was very lenient and was prepared to adopt it.
• The sentencing judge’s reasons never suggested that he was imposing a sentence higher than the Crown’s recommendation of 12 months, from which he then deducted the pre-sentence custody (a number he was not provided) to arrive at a sentence of 12 months after credit.
• The Crown never urged the court to give the appellant no credit for pre-sentence custody. The submissions of counsel and the sentencing judge’s comments suggest that the pre-sentence custody credit would be calculated later. But this was never done. Nothing in the record suggests the sentencing judge knew or calculated the amount of pre-sentence custody.

[30] Returning to the three possible interpretations of the sentencing judge’s treatment of the pre-sentence custody in light of the record as a whole, we conclude that the only plausible interpretation is that the sentencing judge did not take the pre-sentence custody into account.

[31] This first interpretation – that the sentencing judge took pre-sentence custody into account, but did not explain the calculation – is not plausible, for two reasons. First, it involves the sentencing judge imposing a sentence several months higher than either party proposed, and then deducting credit for pre-sentence custody to arrive at 12 months. There was no indication the sentencing judge intended to impose a sentence higher than what the Crown had proposed on May 15, 2019, before most of the pre-sentence custody was served. Second, there was no indication the sentencing judge even knew the correct length of the appellant’s pre-sentence custody.

[32] The second interpretation – that the sentencing judge intended to give no credit for pre-sentence custody – is also not plausible, for three reasons. First, the Crown never sought no credit for pre-sentence custody. Second, the exchange between defence counsel and the sentencing judge on September 20, 2019 suggested that an exact calculation of pre-sentence custody would be made and considered later. Third, there was, in any event, no principled basis for denying credit in this case.

[33] As a result, the only explanation that remains plausible is the third interpretation – that the sentencing judge simply failed to consider the pre-sentence custody when he fixed the sentence at 12 months.

[34] The sentencing judge’s failure to consider the pre-sentence custody impacted the sentence imposed because the sentence otherwise would have been lower after crediting the pre-sentence custody.

[35] This court can therefore set aside the sentence and determine the fit sentence in the circumstances. In sentencing afresh, this court “will defer to the sentencing judge’s findings of fact or identification of aggravating and mitigating factors, to the extent that they are not affected by an error in principle”: R. v. Friesen, 2020 SCC 9, at para. 28.

[36] In determining the fit sentence for the appellant, we recognize that this court has upheld significant sentences for convenience store robberies and has underscored that “[a]rmed robbery of a neighbourhood convenience store is an extremely serious offence, and one which is of great concern to the community. The merchants who are operating these stores on a basis of long hours require protection”: R. v. Brown, [1982] O.J. No. 74 (C.A.), at paras. 8-9 (four-year sentence for two counts of robbery of convenience stores); R. v. Boyle (1985), 7 O.A.C. 342 (C.A.), [1985] O.J. No. 33, at para. 6 (four-year sentences served consecutively on each of two counts of robbery of convenience stores) (“the operators of convenience stores are vulnerable to the offence of robbery and they must be protected by the imposition of appropriate sentences”).

[37] Here, however, the Crown acknowledged that the appellant has serious mental health issues, and therefore recommended a 12-month sentence. As Crown counsel stated at first instance, with which we agree, this case warrants “a more merciful sentence” than might otherwise be mandated by the appellant’s offences. We see no basis to depart from the Crown’s recommendation, a recommendation accepted by the sentencing judge.

[38] As for the time the appellant spent under house arrest, we acknowledge that it can be considered a mitigating sentencing factor (see R. v. Adamson, 2018 ONCA 678, at para. 106). This said, it is apparent to us that the parties’ recommended sentences and the sentencing judge’s 12-month sentence all took into account the predisposition bail conditions. In any event, we consider the 12-month sentence to be very lenient and a further reduction on that basis is not warranted.

[39] We therefore conclude that a sentence of 12 months was fit but a credit for pre-sentence custody should have been applied.

(2) The sentencing judge did not view the appellant’s mental illness as an aggravating sentencing factor

[40] The appellant’s second ground of appeal is that the sentencing judge erred by relying on the appellant’s mental health condition as an aggravating sentencing factor.

[41] The appellant impugns these comments of the sentencing judge:

[I]t is clear that Mr. Huang has mental health issues that remain undiagnosed, and to a large extent untreated. He continues to use marijuana and he expresses to me the opinion that it has no impact on his mental health issues.

I understand the level of frustration that his family must feel. He expressed to me that he thinks he can get this situation under control if he is released from custody. I am deeply concerned about his mental wellbeing. I take the view that he is in desperate need of a sound diagnosis and a plan of treatment.

Also I have to consider at this point the appropriate sentence for the robberies that he committed, and as a part of that I have to consider the safety of the public and whether it is safe to release him into the public. In my view, it is not.

In my view, he has to serve a sentence for the robberies he committed and, in my view, the appropriate sentence is the lower end of the range suggested by [Crown counsel], that of 12 months. That is the sentence.

[42] We do not read these comments as treating the appellant’s mental health condition as an aggravating sentencing factor. The sentencing judge was simply concerned for the appellant’s mental well-being and underscored that he needed treatment. There was nothing inappropriate in that.

Disposition

[43] For these reasons, we grant leave to appeal the sentence and allow the sentence appeal. We substitute a sentence of 12 months, with credit for 75 days of pre-sentence custody at a rate of 1.5 to 1, or 113 days’ credit, thereby reducing the sentence to 252 days. The other conditions of the sentence imposed by the sentencing judge remain unchanged.

“Paul Rouleau J.A.”

“B. Zarnett J.A.”

“M. Jamal J.A.”