R. v. Pankewich,

• Jurisdiction: Saskatchewan
• Judge: Bayda,Jackson,Vancise
• Neutral Citation: 2002 SKCA 7
• Court: Court of Appeal (Saskatchewan)
• Date: 06 September 2001
• Citation: (2002), 217 Sask.R. 111 (CA),2002 SKCA 7,[2002] 4 WWR 648,161 CCC (3d) 534,49 CR (5th) 143,[2002] SJ No 17 (QL),217 Sask R 111,217 SaskR 111,217 Sask.R. 111,[2002] S.J. No 17 (QL),(2002), 217 SaskR 111 (CA)

R. v. Pankewich (K.J.) (2002), 217 Sask.R. 111 (CA);

    265 W.A.C. 111

MLB headnote and full text

Temp. Cite: [2002] Sask.R. TBEd. FE.007

Her Majesty the Queen (appellant) v. Kerry James Pankewich (respondent)

(No. 256)

Her Majesty the Queen (appellant) v. Preston Noel Gaveronski (respondent)

(No. 285)

(2002 SKCA 7)

Indexed As: R. v. Pankewich (K.J.) et al.

Saskatchewan Court of Appeal

Bayda, C.J.S., Vancise and Jackson, JJ.A.

January 16, 2002.

Summary:

Pankewich and Gaveronski each pleaded guilty, in separate proceedings before separate judges, to trafficking in a controlled substance (cocaine). Pankewich received an 18 month conditional sentence. Gaveronski received a 12 month conditional sentence. The Crown appealed the sentences. The appeals were heard together.

The Saskatchewan Court of Appeal allowed the appeals and sentenced each accused to two years' imprisonment less a day. The court gave each accused credit for time already served in the community on the basis of a one to one equivalency.

Criminal Law - Topic 5720.3

Punishments (sentence) - Conditional sentence - Considerations - The Saskatchewan Court of Appeal stated that incarceration, which was ordinarily a harsher sanction, might provide more denunciation than a conditional sentence - See paragraph 36.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - [See Criminal Law - Topic 5830.8 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The Saskatchewan Court of Appeal stated that "... the sentencing objectives which figure most prominently, for drug traffickers acting for profit where the trafficker is not addicted, are denunciation and personal and general deterrence. The reason for this is the nature of the offence which lacks immediate victims and is often the product of much previous thought. In such circumstances, it is not unreasonable to conclude that deterrence and denunciation will have greater effect in preventing these crimes than they might be in preventing others." - See paragraph 34.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The Saskatchewan Court of Appeal stated that "... conditional sentences are available for those who traffic in hard drugs. Fitness of sentence in such cases will depend on a wide variety of factors including: 1. the sophistication and significance of the offence and the accused's place in it; 2. the type and quantity of drug; 3. the motivation for the offence: those who traffic to support their own habit may be more likely to receive a restorative disposition than those who traffic for other reasons; 4. the need for and the utility of the deterrence which will be provided by the sentence imposed; 5. the factors relating to the community like the significance of the problem; and, 6. the age, lack of record and other personal circumstances of the accused." - See paragraph 49.

Criminal Law - Topic 5848.7

Sentencing - Considerations on imposing sentence - Denunciation or repudiation of conduct - [See Criminal Law - Topic 5720.3 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic - The Saskatchewan Court of Appeal stated that the appropriate sentencing range for trafficking in cocaine was from 18 months to four years - See paragraph 37.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic - Pankewich and Gaveronski each pleaded guilty to trafficking in a controlled substance - Pankewich, age 23, transported 10 ounces of cocaine from Vancouver to Regina - Gaveronski, now age 25, transported one pound of cocaine from Vancouver to Regina - Gaveronski failed to disclose that two months prior to the sentencing hearing, he had pleaded guilty to assaulting his spouse - Both were motivated by money and were at a moderate risk of reoffending - They were an integral part of a larger operation - Pankewich received an 18 month conditional sentence - Gaveronski received a 12 month conditional sentence - The Saskatchewan Court of Appeal varied the sentences to two years' imprisonment less a day and gave credit for time already served in the community on the basis of a one to one equivalency.

Criminal Law - Topic 6201

Sentencing - Appeals - Variation of sentence - Powers of appeal court - The Saskatchewan Court of Appeal discussed the shared roles of appellate and trial courts, stating that "[a] trial court assesses the gravity of the offence and the responsibility of the offender in the first instance, but because Parliament has given appellate courts the obligation of assessing the fitness of sentence in s. 687(1) of the Criminal Code, appellate courts re-weigh the same matters. Among other matters which distinguish the appellate role from that of the court of first instance, the appellate court has before it a reasoned decision, is influenced by the decision and accords it deference. The appellate court is not sentencing de novo, and the deferential standard of appellate review affirms this." - See paragraph 18.

Cases Noticed:

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449, refd to. [para. 16].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37; 102 C.C.C.(3d) 193; 129 D.L.R.(4th) 657; 43 C.R.(4th) 269, refd to. [para. 16].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 16].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 16].

R. v. G.W., [1999] 3 S.C.R. 597; 247 N.R. 135; 181 Nfld. & P.E.I.R. 139; 550 A.P.R. 139; 178 D.L.R.(4th) 76, refd to. [para. 16].

R. v. Goy (G.M.) (1992), 105 Sask.R. 131; 32 W.A.C. 131 (C.A.), refd to. [para. 21].

R. v. Faubert (V.) (1997), 152 Sask.R. 228; 140 W.A.C. 228 (C.A.), refd to. [para. 22].

R. v. Englesman (C.G.) (1999), 180 Sask.R. 108; 205 W.A.C. 108 (C.A.), refd to. [para. 22].

R. v. Sinnott (M.S.), [2001] Sask.R. Uned. 10 (C.A.), refd to. [para. 22].

R. v. Pepin (1990), 98 N.S.R.(2d) 238; 263 A.P.R. 238 (C.A.), refd to. [para. 31].

R. v. Gerbrandt (C.) (1998), 175 Sask.R. 161 (Q.B.), refd to. [para. 31].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321; 34 C.C.C.(3d) 97; 40 D.L.R.(4th) 435; [1987] 5 W.W.R. 1; 58 C.R.(3d) 193; 15 B.C.L.R.(2d) 273, refd to. [para. 42].

R. v. Rahime (S.) et al. (2001), 286 A.R. 377; 253 W.A.C. 377; 156 C.C.C.(3d) 349 (C.A.), dist. [para. 46].

R. v. Maskill (1981), 29 A.R. 107; 58 C.C.C.(2d) 408 (C.A.), refd to. [para. 47].

R. v. Dew (V.L.) (1998), 131 Man.R.(2d) 108; 187 W.A.C. 108 (C.A.), dist. [para. 48].

R. v. Reid (B.A.C.) (1998), 131 Man.R.(2d) 153; 187 W.A.C. 153 (C.A.), dist. [para. 48].

R. v. Widerski (D.A.) (1998), 129 Man.R.(2d) 280; 180 W.A.C. 280 (C.A.), dist. [para. 48].

R. v. Tahal (E.) (1999), 122 O.A.C. 109; 137 C.C.C.(3d) 206 (C.A.), dist. [para. 48].

R. v. Wey (R.M.) (1999), 244 A.R. 189; 209 W.A.C. 189; 142 C.C.C.(3d) 556 (C.A.), dist. [para. 48].

R. v. Morrison, [1999] O.J. No. 2655 (C.A.), dist. [para. 48].

R. v. Kozma (R.S.) (2000), 142 B.C.A.C. 195; 233 W.A.C. 195 (C.A.), dist. [para. 48].

R. v. Champagne (D.A.) (2000), 148 Man.R.(2d) 104; 224 W.A.C. 104 (C.A.), dist. [para. 48].

R. v. Hayes (D.) (2001), 142 O.A.C. 57 (C.A.), dist. [para. 48].

R. v. Beaudry (M.J.) (2000), 271 A.R. 219; 234 W.A.C. 219 (C.A.), dist. [para. 48].

R. v. Laliberte (M.R.) (2000), 189 Sask.R. 190; 216 W.A.C. 190 (C.A.), refd to. [para. 49].

R. v. Keepness (S.F.) (2000), 189 Sask.R. 173; 216 W.A.C. 173 (C.A.), refd to. [para. 49].

R. v. Vu (T.H.) (1998), 103 B.C.A.C. 252; 169 W.A.C. 252 (C.A.), refd to. [para. 50].

R. v. Hill (1999), 140 C.C.C.(3d) 214 (N.S.C.A.), refd to. [para. 50].

R. v. Migalski (G.), [1999] O.A.C. Uned. 111 (C.A.), refd to. [para. 50].

R. v. Prudencio, [2000] O.J. No. 4638 (C.A.), refd to. [para. 50].

R. v. Ahmed (S.) (2001), 159 B.C.A.C. 136; 259 W.A.C. 136 (C.A.), refd to. [para. 50].

Counsel:

Doug Curliss, for the appellant;

Terry Jordan, for the respondents.

These appeals were heard on September 6, 2001, by Bayda, C.J.S., Vancise and Jackson, JJ.A., of the Saskatchewan Court of Appeal. Jackson, J.A., delivered the following judgment for the court on January 16, 2002.