IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]         Sukhdeep Singh Poony has entered guilty pleas to:

[2]         The Crown submits that the appropriate sentence is two years less a day imprisonment for the firearm offence and one year imprisonment for the prohibited device offence, to be served concurrently.

[3]         The defence submits that the appropriate sentence is a conditional sentence order.

[4]         The firearm and silencer were located by the police under Mr. Poony’s bed during the execution of a search warrant at his residence in March 2012.

[5]         Mr. Poony was charged with these offences in November 2012. There has been extensive delay in resolving these charges, which I will discuss later in these Reasons.

[6]         At the time of the offences, Mr. Poony was involved in drug trafficking. In the months leading up to the seizure of these items, he was attempting to collect an $80,000 drug debt from a person who had reportedly been fronted two kilograms of cocaine but failed to pay for it. The cocaine had apparently been lost, stolen, or otherwise disappeared. Mr. Poony was tasked with collecting the debt.

[7]         On September 28, 2011, Mr. Poony approached the person in a public place and shot him a number of times. The victim survived the shooting but was subsequently murdered at a later time.

[8]         It is not alleged that Mr. Poony was involved in the murder. However, Mr. Poony came under police investigation for the September 2011 shooting.

[9]         The police executed a search warrant on March 28, 2012 at Mr. Poony’s residence, which he shared with his partner and other members of his family. During the search, the police located a firearm case under Mr. Poony’s bed in the master bedroom containing:

[10]      Mr. Poony was not licensed to possess the firearm or silencer.

[11]      The firearm that was seized was not the same firearm that was used in the attempted murder, as that item had reportedly been thrown away to avoid detection. Mr. Poony says that he was asked to hold the items found under his bed by a person he worked for in the drug trade. The same person who provided him with these items had also assigned him to collect the drug debt.

[12]       Mr. Poony was later charged with attempted murder and other charges related to the shooting incident. He was convicted in 2017 after a lengthy trial in the Supreme Court of British Columbia.

[13]      The charges before the Court have been outstanding since 2012. Mr. Poony entered guilty pleas in April 2023 and pre-sentence reports were ordered. The sentencing hearing proceeded on January 24 and February 13, 2024.

[14]      Mr. Poony is now 39 years old. He lives with his spouse and their young daughter.

[15]      He was 27 at the time of the offences. Although he was entrenched in drug trafficking at that time, the evidence at this sentencing hearing establishes that he is no longer involved in that lifestyle.

[16]      Mr. Poony has worked as a crane operator and as a truck driver in the construction industry since he was first released on bail in 2013. He was incarcerated between 2017 and 2019 while serving the sentence for the attempted murder, and then resumed his employment after he was released on parole.

[17]      The defence has provided a number of character reference letters from Mr. Poony’s friends and family. They speak to the changes that he has made in his life since the time of the offences. Mr. Poony is now described as a dedicated father and husband and a respected employee.

[18]      Mr. Poony developed a dependency to opioids after being prescribed Percocet after an injury in 2012. He has been taking methadone for several years but has been abstinent from using illicit drugs since 2013. He has been subject to regular drug testing since 2013 and the results have been negative except for methadone.

[19]      A presentence report, psychiatric report and Corrections records related to Mr. Poony have been filed in this sentencing hearing. Although the author of the psychiatric report indicates some concern with the credibility of information provided by Mr. Poony, the reports generally support that he has distanced himself from his former lifestyle.

[20]      Mr. Poony was convicted in 2017 of the attempted murder, along with related charges including possession of a loaded firearm, assault with a firearm, and extortion: R. v. Poony, 2017 BCSC 1136; affirmed on appeal 2018 BCCA 356. The sentencing judge found that a cumulative sentence of 14 years was appropriate, but reduced the sentence to 11 years based on the totality principle. After credit for time spent in pre-trial custody, the sentence was reduced to eight years and seven months. In consideration of the house arrest conditions that Mr. Poony had been subject to while on bail, the sentence was further reduced to eight years.

[21]      The Crown acknowledges that those convictions should not be considered an aggravating factor for the purposes of this sentencing, as Mr. Poony was not convicted or charged with those offences when the offences before the Court were committed.

[22]      At the time of the offences that are the focus of this sentencing hearing, Mr. Poony had a limited criminal record consisting of two property offences in 2004. There were no prior firearms offences.

[23]      In the 12 years since these offences, Mr. Poony has spent significant periods of time on bail. He was incarcerated in a federal institution while serving the attempted murder sentence between 2017 and 2019. He was released on parole in 2019 and will continue to be on parole until August 2025.

[24]      There is no allegation that Mr. Poony failed to comply with any of the bail orders or parole conditions.

[25]      He has no other criminal convictions.

[26]      There has been significant delay since these charges were laid in November 2012.

[27]      Mr. Poony applied for adjournments of this proceeding while he was undergoing that trial on the attempted murder charge. After that matter concluded, there have been a number of further adjournments by the defence. Some of the adjournments were due to changing counsel prior to the scheduled trial dates. Another trial date was adjourned after Mr. Poony suffered a head injury. The defence waived delay or was primarily responsible for the delay resulting from previous adjournments of the trials.

[28]      The amount of time that these charges have been outstanding is concerning. The right to a trial within a reasonable time does not only concern the interests of the accused. There is a strong public interest in criminal charges being resolved within a reasonable time.

[29]      This is not meant to be critical of Mr. Poony’s counsel, as Mr. Wright has represented Mr. Poony only in the recent history of the proceeding.

[30]      There is no application seeking a remedy for unreasonable delay pursuant to s. 11(d) of the Charter, because much of the delay has been attributable to the defence.

[31]      In some circumstances, delay in sentencing may be considered a mitigating factor, particularly if it is beyond the control of the accused. Because the delay in this proceeding is generally attributable to the defence, it is not a mitigating factor at this sentencing hearing.

[32]      The fundamental principle of sentencing set out in s. 718.1 of the Criminal Code is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[33]      The gravity of the offence refers to harm to any victim, as well as harm to society and its values. The degree of responsibility of the offender focuses on moral culpability, which may include the offender’s motive, mental capacity or state of mind related to the offence: R. v. Lacasse, 2015 SCC 64, at para. 130.

[34]      A proportionate sentence is determined by considering the circumstances of the offence and the offender and by comparing the case before the Court with similar cases, while taking into account the sentencing objectives set out in the Criminal Code: Lacasse, at paras. 53-54.

[35]      The key sentencing objectives in firearms offences are denunciation, deterrence and protection of the public: R. v. Ball, 2014 BCCA 120 at para. 20. The sentence must reflect the community’s concern with unlawful conduct involving firearms and the dangers inherent in those offences.

[36]      Section 718.2(a) of the Criminal Code provides that a sentence should reflect any relevant aggravating or mitigating factors relating to the offence or the offender.

[37]      It is mitigating that Mr. Poony has entered guilty pleas, accepted responsibility and expressed remorse.

[38]      The mitigating effect of the guilty pleas is somewhat reduced because the guilty pleas came 11 years after the charges were laid. The history of this proceeding reflects some effort by Mr. Poony to delay facing these charges.

[39]      Mr. Poony has made significant changes to his life since the offences occurred in 2012. He has maintained stable employment, started a family and has largely maintained abstinence from illicit drugs since 2013. He has been on bail since 2013 and has been on parole since 2019. There is no suggestion of any difficulties in complying with the bail or parole conditions.

[40]      Mr. Poony has the strong support of his family.

[41]      Mr. Poony says that he regrets the choices that he made earlier in life, and understands the impact of gun violence on the community.

[42]      Mr. Poony’s efforts to rehabilitate himself and legitimately support his family are significant mitigating factors.

[43]      The psychiatric report includes a comprehensive risk assessment, which concludes that he is at low risk of future violence offences. This is also a mitigating factor.

[44]      Mr. Poony has been subject to stringent release conditions for several years while on bail.

[45]      He was first released on bail in December 2013. He was released on bail at the same time in the attempted murder proceeding. Both bail orders included conditions of house arrest with exceptions for employment and other limited purposes.

[46]      He was on bail until he was sentenced in August 2017 for the attempted murder. After serving more than two years in a federal institution, he was released on day parole in November 2019.

[47]      He remained subject to the strict bail conditions of the 2013 release order until the conditions were amended in October 2021. The house arrest condition was removed at that time.

[48]      Excluding the time that he was imprisoned in an institution, Mr. Poony has been subject to conditions of house arrest in the community for almost six years.

[49]      At the time of the sentencing in 2017 for the attempted murder, Mr. Poony had been on house arrest conditions for three years and eight months. The sentencing judge took this into account by reducing his jail sentence by seven months. In my view, it would be “double counting” to reduce Mr. Poony’s sentence in this proceeding based on the period of time spent on restrictive bail prior to the 2017sentencing.

[50]      However, Mr. Poony has been subject to restrictive bail conditions in this proceeding beyond what was taken into account in the previous sentence. Mr. Poony was subject to the house arrest conditions after he was released on parole in 2019 and until the bail order was amended in October 2021.

[51]      It is well established that time spent on bail subject to restrictive bail conditions should be taken into account as a mitigating factor: R. v. Plowman, 2015 BCCA 423; R. v. Joseph, 2020 ONCA 733 at para. 108. The mitigating impact on the sentence is due to the punitive effect of stringent bail conditions. The factors to be considered include the amount of time spent on bail, the stringency of the conditions and the impact on the offender’s ability to carry on normal family and business relationships: Plowman, at para. 28. 

[52]      While it is not necessary to do so, the Court may quantify a specific amount of time as credit: R. v. C.C., 2021 ONCA 600, at para. 5; R. v. Dodman, 2021 ONCA 543 at paras. 9-10. The credit that is granted often ranges between a fifth and a third of the total time spent on bail: see for example Dodman, at para. 12. Other judges have simply considered the punitive impact of the bail conditions in the overall determination of sentence.

[53]      Mr. Poony has been subject to restrictive house arrest conditions for a lengthy period of time, apparently without any incidents of breaching the conditions. There is a strong punitive impact arising from the restrictions on his liberty. In my view, this is a significant mitigating factor in this sentencing.

[54]      These offences also involve aggravating factors, particularly related to the circumstances of the offences.

[55]      The firearm is a prohibited firearm within the meaning of s. 84 of the Criminal Code, as it is a handgun with a barrel length less than 105 mm.

[56]      Although Mr. Poony has not been convicted of the offence of possessing a loaded and prohibited firearm in s. 95(1) of the Criminal Code, it is an aggravating factor that the firearm was loaded with ammunition.

[57]      The firearm and silencer were intended for a criminal purpose. Mr. Poony says that he was asked to hold on to the items by his employer in the drug trade. At the time, he was involved in drug trafficking and was an integral actor in a conspiracy to collect a drug debt, which included an act of attempted murder using another firearm.

[58]      Mr. Poony has already been sentenced for the attempted murder offence, and is not to be punished again for that conduct in the sentence that he is to receive in this proceeding. However, it is an aggravating factor that the firearm and the silencer were possessed for a criminal purpose.

[59]      There has been an alarming number of gang-related shootings in the Lower Mainland. While this sentencing must focus on the time period when the offences were committed, there is no question that gun violence in the community was a concern then as it is now. Public confidence in the administration of justice requires that there be serious consequences for these offences.

[60]      The offences are punishable by imprisonment for up to five years. There is no minimum sentence.

[61]      The offence of possessing a firearm without a license in s. 91 of the Criminal Code is less aggravated than the s. 95 offence of possessing a prohibited firearm with ammunition: R. v. Cairns, 2007 BCCA 572 at para. 34. The maximum sentence for s. 95 offences is ten years imprisonment. Sentences for s. 95 offences generally range from two and a half to seven years imprisonment: see R. v. Holt, 2015 BCCA 302; R. v. Ball, supra; R. v. Mills, 2021 BCCA 86; R. v. Radjenovic, 2011 BCSC 1225; R. v. Sanghera, 2012 BCSC 901.

[62]      While it is aggravated that the firearm possessed by Mr. Poony was a prohibited firearm that was loaded with ammunition, Mr. Poony has not been convicted of a s. 95 offence. He is being sentenced for the offence of possessing a firearm without a license, contrary to s. 91(1).

[63]      The Crown has provided a number of sentencing cases involving possession of firearms without a license, including the following:

[64]      In R. v. Botticelli, 2022 BCCA 344, the accused was convicted of attempted murder using a firearm for shooting two family members with a shotgun following a family dispute. The police executed a search warrant at the accused’s residence and located two handguns, ammunition and silencers. In addition to 12 years imprisonment for the attempted murders, he received a consecutive sentence of three years for the s. 91(1) firearms offences.

[65]      In R. v. Cairns, 2007 BCCA 572, the Court of Appeal set aside a conviction for a s. 95(1) offence and substituted a conviction under s. 91(1). The firearm in question was loaded with ammunition, which was considered an aggravating factor. However, because the offence in s. 91 is less serious than s. 95, the Court of Appeal reduced the 18 month sentence of imprisonment to 15 months.

[66]      In R. v. McWhirter, 2018 BCSC 1768, the offender was convicted of drug and firearm offences. The firearms involved a rifle and shotgun, which the sentencing judge concluded were not proven to be associated to the drug trafficking. The sentencing judge imposed one year on each count, to be served concurrently but consecutive to the sentence for the drug offences.

[67]      In R. v. Heathcote, 2016 BCSC 1246, the offender was convicted of a drug offence as well as possessing various restricted firearms, one of which was loaded. The Court imposed a sentence of 26 months on the s. 95(1) offence, and one year concurrent on the s. 91(1) offence for possessing unlicensed long guns.

[68]      The defence relies on cases including R. v. Veranski, 2010 BCCA 211, in which the Court of Appeal set aside a sentence of 21 months imprisonment imposed for possessing a handgun and prohibited magazine. The sentencing judge had accepted the accused’s explanation that he was holding onto the items to keep them safe, until another person with a proper license arrived to pick them up. The Court of Appeal found that there was no reason to believe that the accused was a danger to the community and concluded that a conditional sentence would be consistent with the principles of sentencing. The Court substituted a conditional sentence of imprisonment of 21 months.

[69]      The defence submits that Mr. Poony should be sentenced to a conditional sentence order.

[70]      Pursuant to s. 742.1 of the Criminal Code, the Court may order that an offender serve the sentence in the community if the statutory criteria are met, including that the sentence is less than two years imprisonment, and the Court 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 the Code.

[71]      A conditional sentence may be imposed to be served consecutively to another sentence, if the aggregate sentence is less than two years. A conditional sentence may not be imposed if the total sentence which an offender is serving exceeds two years: R. v. Lyver, 2007 ABCA 369.

[72]      The defence submits that Lyver should not be followed, and that s. 742.1 should not be interpreted as precluding a conditional sentence from being imposed while an offender is serving another sentence of more than two years.

[73]      The defence submits that a conditional sentence is available because the appropriate sentence to be imposed in this proceeding is less than two years, notwithstanding that Mr. Poony is currently serving an eight year sentence.

[74]      The defence alternatively submits that the sentence could be ordered to run concurrently with the current federal sentence, or that the imposition of sentence be adjourned until after the other sentence expires.

[75]      It is my view that the sentence for these offences must be consecutive to the sentence that Mr. Poony is serving. The offences were a separate and distinct incident from the attempted murder incident. Offences involving separate and distinct transactions should generally receive consecutive sentences: R. v. Li, 2009 BCCA 85 at para. 42; s. 718.3(4)(b) Criminal Code.

[76]      With respect to the request to adjourn the imposition of sentence, I cannot accept that the sentencing should be adjourned until the previous sentence expires. Section 720 of the Criminal Code requires that the sentencing take place as soon as practicable after a conviction or guilty plea. This proceeding has been outstanding for twelve years and cannot be further delayed.

[77]       It is my view that a conditional sentence is unavailable. The proper interpretation of s. 742.1 precludes imposing a conditional sentence consecutive to another sentence, where the global sentences exceeds two years imprisonment. A conditional sentence is available under s. 742.1 only if the totality of the sentences of imprisonment is less than two years. Parliament could not have intended that the eligibility requirement could be circumvented by imposing a number of consecutive sentences with a total sentence that could greatly exceed two years imprisonment. This would be contrary to the spirit and intention of the legislation.

[78]      This interpretation of s. 742.1 has been affirmed in R. v. Keyler, 2014 BCCA 300 at para. 2. This interpretation is also consistent with cases from other jurisdictions, including R. v. Ploumis (2000), 2000 CanLII 17033 (ON CA), 150 C.C.C. (3d) 424 (ONCA); R. v. Frechette, 2001 MBCA 66; R. v. MacIver, 2000 MBCA 76 (CanLII), 2000 MBCA 82; and R. v. Pakoo, 2004 MBCA 157.

[79]      The defence cites R. v. Harris, 2000 BCCA 599, in which the Court of Appeal upheld a sentence of three consecutive conditional sentences of two years less a day, which were imposed to run concurrently with a lengthy federal sentence. In upholding the sentence, Ryan J. noted that the relevant provisions of the Criminal Code did not preclude the sentence that was imposed. However, this finding is inconsistent with later caselaw, and to the extent of the inconsistency, has been overtaken by subsequent authority.

[80]      Because of the length of sentence that is required in this case and the length of sentence that Mr. Poony is currently serving, the totality of the sentences would exceed two years. I conclude that a conditional sentence is not available.

[81]      Because Mr. Poony’s sentence will be consecutive to the sentence he is currently serving, the Crown agrees the principle of totality must be considered.

[82]      The totality principle requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence is not excessive: s. 718.2(c), Criminal Code.

[83]      In the 2017 sentencing for attempted murder, the sentencing judge found that a global sentence of 14 years was appropriate before applying the totality principle. The sentencing judge found that such a sentence would be “crushing” and reduced the sentence by three years.

[84]      If Mr. Poony had been sentenced on the offences before the Court at the same time as the previous sentencing, the principle of totality would likely have reduced the sentence for these offences.

[85]      The calculation of sentence in this case involves factors that pull strongly in different directions. The gravity of the offence is severe, as it involves possessing a loaded firearm and silencer for a criminal purpose. However, there are exceptional mitigating factors in that Mr. Poony has effectively rehabilitated himself by abandoning his former criminal lifestyle and legitimately supporting his family for many years. He has also spent a significant period of time on stringent house arrest conditions. The Court must also take into consideration the principle of totality, as the sentence is to be consecutive to a lengthy federal sentence.

[86]      In my view, the appropriate sentence is one year imprisonment for possessing a firearm without a license, contrary to s. 91(1), and six months for possessing a prohibited device, contrary to s. 91(2). These sentences are to be served concurrently but consecutive to the sentence he is currently serving.

[87]      The Crown submits that there should be a probation order. However, a probation order is not available based on s. 731 of the Criminal Code, as the total sentence that he is serving is greater than two years.

[88]      There will be a firearms prohibition pursuant to s. 110 of the Criminal Code for life.

[89]      There will be an order pursuant to s. 487.051 of the Criminal Code that Mr. Poony provide a DNA sample.

[90]      The seized items are forfeited.