R. v. Punko (J.V.), 2010 BCCA 365

• Judge: K. Smith, Tysoe and D. Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: August 05, 2010
• Jurisdiction: British Columbia
• Citations: 2010 BCCA 365;(2010), 291 B.C.A.C. 95 (CA)

R. v. Punko (J.V.) (2010), 291 B.C.A.C. 95 (CA);

    492 W.A.C. 95

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. AU.007

Regina (appellant) v. John Virgil Punko (respondent)

(CA037955; 2010 BCCA 365)

Indexed As: R. v. Punko (J.V.)

British Columbia Court of Appeal

K. Smith, Tysoe and D. Smith, JJ.A.

August 5, 2010.

Summary:

The accused pleaded guilty to, inter alia, conspiracy to produce and traffic in methamphetamine (crystal meth) and trafficking in cocaine. The trial judge sentenced the accused to concurrent sentences of six years' imprisonment for conspiracy and five years' imprisonment for trafficking. He then reduced the sentences by one year for the guilty plea and one year for police misconduct in their undercover operation, for a total sentence of four years' imprisonment. After 34 months' credit for 17 months' pre-trial custody, the net sentence to be served was 26 months' imprisonment (see [2010] B.C.T.C. Uned. 320). The Crown appealed, submitting that (1) the total sentence was demonstrably unfit; (2) the judge erred in mitigating the sentence for the effects of police conduct during the undercover investigation; and (3) the judge erred in failing to make the methamphetamine and cocaine sentences consecutive rather than concurrent.

The British Columbia Court of Appeal allowed the appeal. The judge erred in using a piecemeal approach to impose a fit sentence that over-emphasized the mitigating factors (guilty plea and misconduct) and under-emphasized the primary sentencing considerations of denunciation and deterrence. Further, since the sentences were separate and distinct, they should have attracted consecutive sentences. The court substituted six years' imprisonment for conspiracy and 4.5 years' imprisonment (consecutive) for trafficking. Applying the totality principle, the total sentence of 10.5 years' imprisonment was too long and was reduced to eight years' imprisonment. After 34 months' credit for pre-trial custody, the net sentence was five years and two months. K. Smith, J.A., dissenting, agreed that the sentence was unfit, but would have increased the conspiracy sentence only by 12 months and would have affirmed both the three year trafficking sentence and the imposition of concurrent sentences rather than the consecutive sentences.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - The 43 year old accused left 15 years' employment as an elevator repairman to join a chapter of the Hells Angels - The R.C.M.P., during a two year undercover operation, infiltrated the group by using Plante, a paid police agent - The accused and Plante financed the wholesale manufacture of 50 kilograms of methamphetamine (crystal meth) over an eight month period - Plante purportedly sold some of the crystal meth and paid the accused his share of the proceeds - The balance of the crystal meth was sold on the market - The accused also sold $142,500 worth of cocaine from an unknown source to Plante - The accused pleaded guilty to conspiracy to produce and traffic in methamphetamine and trafficking in cocaine - The trial judge declined to impose consecutive sentences because the cocaine offence was "part of a continuing process by which the police agent ... assisted [the accused] to make 'easy money' from drug dealing" - The British Columbia Court of Appeal held that the trial judge should have imposed consecutive sentences - The judge erred in relying on the agent's continuing effort to infiltrate the Hells Angels as a reason to impose a concurrent sentence - The two offences were not a linked series of acts within a single endeavour of criminal activity - The two offences were separate and distinct, involving different drugs and different roles for the accused - While the greed motive and the involvement of the police agent was common to both offences, these factors were not sufficient to categorize the two offences as part of a single endeavour - See paragraphs 85 to 89.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See Criminal Law - Topic 5878 ].

Criminal Law - Topic 5830

Sentencing - Considerations on imposing sentence - General - The accused pleaded guilty to two drug offences - The trial judge first determined appropriate sentences for the offences, then deducted time to account for the mitigating factors of a guilty plea and police misconduct - The British Columbia Court of Appeal held that the trial judge erred in principle in arriving at a fit sentence using a "piecemeal approach", which gave undue weight to the mitigating factors - The correct approach was to arrive at a fit sentence having regard to all of the factors, including the mitigating factors - The one exception was to give credit for pre-trial custody after a fit sentence was determined - See paragraphs 76 to 79.

Criminal Law - Topic 5830.4

Sentencing - Considerations on imposing sentence - Guilty plea - [See Criminal Law - Topic 5878 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - The British Columbia Court of Appeal, noting the pernicious effects of methamphetamine (crystal meth) and cocaine on users and society generally, emphasized that "these offences will ordinarily attract significant prison sentences" - See paragraphs 1 to 2.

Criminal Law - Topic 5846.6

Sentencing - Considerations on imposing sentence - Violation of accused's rights (incl. police misconduct) - The accused, a Hells Angels member, pleaded guilty to two drug offences - The R.C.M.P., in a two year undercover operation, had infiltrated the group by using a paid police agent - The offences were facilitated by the agent, although entrapment was not alleged - The trial judge found that the accused, although more than willing to commit the offences out of greed, would not have committed the offences but for the agent's encouragement - The accused was also a Percocet addict who was trying to recover - The R.C.M.P., through the agent, supplied the accused with free Percocet to gain his trust in their attempt to target other persons higher up in the Hells Angels - The British Columbia Court of Appeal held that police misconduct falling short of a Charter violation could mitigate a sentence - The trial judge did not err in finding that the supply of Percocet to a recovering Percocet addict was a mitigating factor, as right-thinking Canadians would consider this misconduct contrary to the shared values of our society - However, the judge erred in treating the agent's involvement in the offences to be police misconduct deserving rebuke - The police were infiltrating a criminal organization, which would have failed unless the agent participated in the group's criminal activities - Right-thinking Canadians would accept that such tactics were necessary to investigate criminal organizations and were not contrary to the rule of law or shared values of society - However, the agent's facilitation of the offences was relevant to the accused's moral blameworthiness - See paragraphs 80 to 84.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5878 ].

Criminal Law - Topic 5878

Sentence - Possession, cultivation or production of a narcotic or a controlled drug or substance - The 43 year old accused, a Hells Angel member, pleaded guilty to conspiracy to produce and traffic in methamphetamine (crystal meth) and trafficking in cocaine - During a two year undercover operation, the R.C.M.P. had infiltrated the group using a paid police agent - The police agent facilitated the accused's commission of the offences (would not have committed them but for the agent's involvement) and the police also supplied the accused, a recovering Percocet addict, with free Percocet (police misconduct mitigating sentence) - The accused and Plante financed the wholesale manufacture of 50 kilograms of methamphetamine (crystal meth) over an eight month period - Plante purportedly sold some of the crystal meth and paid the accused his share of the proceeds - The balance of the crystal meth was sold on the market - The accused also sold $142,500 worth of cocaine from an unknown source to Plante - The accused had a prior criminal record for drug offences - The trial judge sentenced the accused to concurrent sentences of six years' imprisonment for conspiracy and five years' imprisonment for trafficking, then reduced those sentences by one year for the guilty plea and one year for the police misconduct, for a total sentence of four years' imprisonment - After 34 months' credit for 17 months' pre-trial custody, the net sentence to be served was 26 months' imprisonment - The British Columbia Court of Appeal allowed the Crown's sentence appeal - The judge erred in using a piecemeal approach to impose a fit sentence that over-emphasized the mitigating factors (guilty plea and misconduct) and under-emphasized the primary sentencing considerations of denunciation and deterrence - Further, since the sentences were separate and distinct, they should have attracted consecutive sentences - The court substituted six years' imprisonment for conspiracy and 4.5 years' imprisonment (consecutive) for trafficking - Applying the totality principle, the total sentence of 10.5 years' imprisonment was too long and was reduced to eight years' imprisonment - After 34 months' credit for pre-trial custody, the net sentence was five years and two months - See paragraphs 90 to 96.

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 1].

R. v. Francis (C.A.) (2008), 258 B.C.A.C. 80; 434 W.A.C. 80; 2008 BCCA 309, refd to. [para. 2].

R. v. Cote (A.J.) (2002), 162 B.C.A.C. 168; 264 W.A.C. 168; 2002 BCCA 29, refd to. [para. 2].

R. v. Logan, Logan and Johnson, [1990] 2 S.C.R. 731; 112 N.R. 144; 41 O.A.C. 330, refd to. [para. 3].

R. v. Lising (R.) et al., 2007 BCSC 369, refd to. [para. 9, footnote 1].

R. v. Ghavami (N.) (2010), 284 B.C.A.C. 286; 481 W.A.C. 286; 253 C.C.C.(3d) 74; 2010 BCCA 126, refd to. [para. 10, footnote 2].

R. v. Violette (J.J.) et al., [2009] B.C.T.C. Uned. 1025; 2009 BCSC 1025, refd to. [para. 13].

R. v. Punko (J.V.), [2010] B.C.T.C. Uned. 70; 251 C.C.C.(3d) 232; 2010 BCSC 70, refd to. [para. 14].

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 2010 SCC 6, refd to. [para. 22].

R. v. Evanson (D.D.) (2009), 278 B.C.A.C. 16; 471 W.A.C. 16; 2009 BCCA 425, refd to. [para. 48].

R. v. L.M., [2008] 2 S.C.R. 163; 374 N.R. 351; 231 C.C.C.(3d) 310; 2008 SCC 31, refd to. [para. 50].

R. v. McKnight (R.) (1999), 119 O.A.C. 364; 135 C.C.C.(3d) 41 (C.A.), refd to. [para. 51].

R. v. Gardiner, [1982] 2 S.C.R. 368; 43 N.R. 361, refd to. [para. 52].

R. v. Chinneck (W.N.) (2005), 213 B.C.A.C. 260; 352 W.A.C. 260; 2005 BCCA 346, refd to. [para. 53].

R. v. Terezakis (A.) (2010), 288 B.C.A.C. 121; 488 W.A.C. 121; 2010 BCCA 268, refd to. [para. 53].

R. v. Iverson (L.K.) (2007), 234 B.C.A.C. 153; 387 W.A.C. 153; 2007 BCCA 3, refd to. [para. 58].

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; 105 C.C.C.(3d) 327, refd to. [para. 64].

R. v. Li (P.S.) (2009), 267 B.C.A.C. 77; 450 W.A.C. 77; 2009 BCCA 85, refd to. [para. 69].

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. 70].

R. v. Kirzner (1976), 14 O.R.(2d) 665 (C.A.), refd to. [para. 83].

R. v. G.P.W. (1998), 106 B.C.A.C. 239; 172 W.A.C. 239 (C.A.), refd to. [para. 85].

R. v. Durette et al. (1992), 54 O.A.C. 81; 72 C.C.C.(3d) 421 (C.A.), refd to. [para. 91].

R. v. Gilbertson (D.C.) (1993), 23 B.C.A.C. 157; 39 W.A.C. 157 (C.A.), refd to. [para. 91].

R. v. Sandhu (K.S.) (1994), 41 B.C.A.C. 300; 66 W.A.C. 300 (C.A.), refd to. [para. 91].

R. v. Hein (B.S.) (2008), 256 B.C.A.C. 189; 431 W.A.C. 189; 231 C.C.C.(3d) 105; 2008 BCCA 230, refd to. [para. 91].

R. v. Grant (I.M.) (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 240 C.C.C.(3d) 462; 2009 MBCA 9, refd to. [para. 93].

Counsel:

M. Devlin, Q.C., and J.K. Torrance, for the Crown, appellant;

G.D. McKinnon, Q.C., for the respondent.

This appeal was heard on May 3, 2010, at Vancouver, B.C., before K. Smith, Tysoe and D. Smith, JJ.A., of the British Columbia Court of Appeal.

The judgment of the Court of Appeal was delivered on August 5, 2010, and the following opinions were filed:

K. Smith, J.A., dissenting - see paragraphs 1 to 73;

Tysoe, J.A. (D. Smith, J.A., concurring) - see paragraphs 74 to 97.