PPT Sentencing – Suspended Sentence – Surrey Provincial Court – January 2016
- February 26th, 2016
- Myers Co Law
- No comments
IN THE PROVINCIAL COURT OF BRITISH
REASONS FOR SENTENCE
THE HONOURABLE JUDGE BROWNSTONE
 THE COURT: This is my decision on Information 202927. With respect to Count 1, Mr. H pled guilty on August 24th, 2015, to the offence of trafficking in a controlled substance, namely, cocaine, and that occurred on November 12th, 2013. On that same date in August, Mr. G pled guilty to Count 2, which is an identical charge of unlawfully trafficking in cocaine on the same date in a separate transaction.
 I am told that on each occasion, different undercover police officers contacted each of the accused not realizing that they were connected with each other. In each case, they arranged a meeting place and attended at the meeting place and purchased some relatively small amounts of cocaine. In one case, I believe it was $40 worth and the other $80 worth.
 In terms of the offenders, Mr. H is 23 years old. If the date that I read on the pre-sentence report is correct, he is turning 24 tomorrow. He was 21 at the date of the offence. He has no prior criminal record and since the date of this offence, he has had no subsequent encounters with the criminal justice system so it appears he has abided by all the terms of his bail.
 Up until now, he has been working for his uncle. He recently left that job and is now hoping to gain employment with Shaw. He has the support of his family and his community; his mother and his girlfriend are in court with him today. He also has disassociated with the negative peers he was involved with at the time of the offence.
 For the last 18 months, Mr. H has been actively involved with his church, working as a youth leader, and dedicating a great amount of time to that endeavour. There was a letter of reference from the minister at the church and Mr. H spoke to the court about the importance of that work to him.
 Mr. H also addressed the court, expressing his remorse and his embarrassment over his involvement in the offence. It is clear from the pre-sentence report that the author of that report also accepted his remorse as genuine and it also appears that he has gained insight into what led to the offence. In large part, it appears that there was a naivety and a wish to go along with peers at the time. There is no indication that he ever used drugs himself.
 Mr. G is 24. He was also 21 at the time of the offence. Like Mr. H, he has no prior criminal record and there have been no subsequent encounters with the criminal justice system. He has worked off and on since high school and he has now been accepted into a pre-apprenticeship electrician program that begins at Kwantlen in May of this year. He indicated, too, that he has a family member who would be willing to hire him after he completes that program.
 Mr. G met with a psychologist, Dr. Kuchenmuller and through that report, which was contained in Exhibit 1, it became apparent that Mr. G has also achieved some insight into what led to the offence. He has suffered from depression and he realizes that there were incidents in his family that led him to become somewhat isolated from his family. He addressed the court today and again spoke of his remorse and his goals for the future. He also indicated that his family is stronger now and their support was evident from their attendance in court: his mother, his father, his sister.
 Mr. G has disassociated from his negative peers and has also provided letters of support from his family doctor, family friends and other friends. Again, as with Mr .H, there is no suggestion that he, himself, used drugs and rather it seems that he also was trying to fit in with negative peers.
 That is a brief overview with respect to the two offenders.
 In terms of the victim, in this case there is no specific victim but all of society is a victim. The Franklin decision states that a dial-a-dope operation victimizes all of society. It makes drugs easily available. I recognize it was a 2001 decision and perhaps at the time it was more novel than it is now but in any event, that case, to me, stands for the impact that this type of offence has on all of society. While there is no named victim, society is a victim.
 In terms of the positions, the Crown is seeking a six-month custodial sentence; without resiling from that position, Mr. Ip suggested that if the court was inclined to consider a sentence that would not interfere significantly with the work or school of the two individuals, that perhaps a three-month custodial sentence to be served intermittently could be considered. However, he is of the view that a six-month custodial sentence is appropriate. He submitted that the Crown is seeking that, which is at the lower range of sentences, given the youth and the circumstances of the two individuals.
 The defence, on the other hand, for both of the offenders, is seeking a suspended sentence and both submit that that would not be contrary to the principles of sentencing.
 The fundamental purpose of sentencing is to contribute, and I am quoting from the Criminal Code, along with crime prevention initiatives, to respect for the law and maintenance of a just and peaceful and safe society by imposing just sanctions, having one or more of the objectives set out in the Criminal Code. Those objectives are denunciation, so an expression of society’s view of this type of offence; deterrence, both of the two of you as individuals but also deterrence of anybody else who may consider engaging in a life of crime or engaging in this type of offence; rehabilitation because ultimately society is best served by having people rehabilitated and being contributing members of society; and sometimes separation from society; and, an acknowledgment of and reparation for the harm done.
 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. I must consider aggravating and mitigating circumstances in each case and I also must consider that the least restrictive sanctions should be identified and available sanctions other than imprisonment should be considered.Parity, that is, sentences that are similar to other people who have committed certain crimes must be considered, and proportionality.
 That is a very long way of saying that there are many, many factors that go into consideration of what is an appropriate sentence. As you have heard today from both the Crown and the defence, there are cases in the province which state that the range for a first-time offender in a dial-a-dope operation generally begins at six months’ incarceration. A conditional sentence order, which is a jail sentence served in the community, is not available. The Crown submits that in order to achieve the primary goals of denunciation and deterrence, incarceration is necessary.
 There are also cases, however, most notably, the Voong case of the British Columbia Court of Appeal, a recent case, and many that follow that case, that have held that a custodial sentence is not always the right sentence. The Voong case referred to exceptional circumstances. It says at paragraph 45 that:
The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence.
 A review of the cases reinforces, however, that very basic principle of sentencing that, ultimately, it is an individualized matter. The language of the higher courts is always instructive but cannot be taken as a mantra that detracts from the fundamental question — for these particular offenders who are before the court, considering the offence and considering the principles of sentencing, what is the appropriate outcome.
 Looking at these two individuals, it does appear that this was a one-time event. Some of the mitigating factors are both of them were very young at the time of this offence; they were not youth but they were 21, very young men. They had no prior criminal record, and, as I said before, no subsequent involvement. They both have the support of their family and their families appear to be assisting them in living a pro-social life. They have each accepted responsibility. They have expressed their genuine remorse to the court and to the authors of the various reports that I read on them. In addition to accepting responsibility to the court, they have also pled guilty which is another way of expressing that responsibility and saving the court the trial time and, most importantly, they have each gained some insight into the factors that led to the offence. I say that is important because it will assist in ensuring that there are not going to be any future offences by these young men.
 In terms of the aggravating factors, in this case perhaps the only aggravating factor is that this was for profit. The cases generally treat that as somewhat aggravating because it indicates some calculation. The sense is that someone who is an addict does not have the same degree of control as someone who is not. I understand that but again, given the age of these two people at the time of the offence, I accept that there was some impulsivity involved in the offences. As well, I do note that in Krause, one of the cases submitted to me, it recognizes the fact that a person is not an addict, in fact, supports the prospects of rehabilitation.
 Those are the aggravating and mitigating factors. As well, for Mr. G, there is the factor that he lost his car in civil forfeiture which I do not really take as mitigating but I do accept as a consequence that he has already suffered.
 Considering the very many things that I have to take into account, I accept that deterrence is important. I accept that for both of you, you have been specifically deterred by this process and that is evident from the fact that it is over two years from the time of the offence and there is no suggestion of any further involvement with crime.
 With respect to general deterrence and denunciation, I accept that the sentence must reflect that but it also must allow for rehabilitation especially considering your young age. Though the R. v. Proulx case talked about conditional sentence orders, I think some of the principles that are stated there can apply here and those principles I take as being that custody is not always necessary to achieve denunciation and deterrence. Restrictive conditions placed on people in the community, even if by way of a probation order, can achieve that result while promoting reintegration and allowing these young men to continue on the paths they have already started on to become productive members of society.
 In this case, I do find that the primary objectives of denunciation and deterrence are, to some extent, outweighed by the rehabilitative steps taken to date and, in any event, they can still be achieved by restrictions on these men in the community. As one of the cases said, a suspended sentence is a little bit like having the Sword of Damocles hanging over your head in that the court or the justice system has some control for the duration of the suspended sentence and, if another offence is committed, the courts can reconsider the suspension of the sentence.
 In summary, considering the youth of these two young men, considering the fact that this was a first offence, that it occurred over two years ago and there has been no subsequent problem, considering the rehabilitative steps that each have taken, considering the acknowledgement and acceptance of responsibility and the insight into what led to it, I am going to suspend the passing of sentence and impose a sentence of two years’ probation for each of you.
 I understand that you have been under conditions for a considerable period of time so I accept that the maximum of three years is not necessary but two years is appropriate and it is that length to ensure accountability and to ensure that the rehabilitative steps take place.
 In terms of the conditions, the same sentence will apply to each unless I differentiate at any point.
 First of all, you must keep the peace and be of good behaviour, appear before the court when required to do so and you must not change your name or address or occupation without notifying the probation officer. Those are the mandatory conditions.
 You must report by 4:00 p.m. tomorrow, January 27th, to the probation officer here in Surrey and thereafter, as and when directed by and in the manner directed by the probation officer.
 You must provide your address to the probation officer and not change it without first notifying the probation officer in writing.
 For Mr. H, you shall perform 200 hours of community work service within the first 18 months of this probation order to the satisfaction of your probation officer and that may include your participation and your volunteering at St. Matthews Parish. That is at the discretion of your probation officer.
 In terms of Mr. G, I recognize that you will be going to school shortly but again you have a long time. I am also going to order that you perform 200 hours of community work service within the first 18 months of the probation order. That can be arranged with and must be done to the satisfaction of your probation officer.
 The community work service is so that each of you has an opportunity to pay back society and accept responsibility and provide some reparation.
 As well, I am going to impose a curfew on each of you; that is, for the first year of the probation order, you shall obey a curfew where you must be inside your residence between the hours of 10:00 p.m. to 6:00 a.m., seven days a week, and not be outside your residence during those hours unless you have the prior written permission of your probation officer, which must be carried on your person, or in the case of immediate medical emergency.
 You shall present yourself to the door of your residence to any peace officer or probation officer for the purpose of determining your compliance with the curfew condition of this order.
 As well, you shall respond personally and immediately to the telephone when a peace officer or a probation officer makes a telephone call to your residence for the purpose of determining your compliance with the curfew condition.
 You shall not possess or consume any controlled substances within the meaning of s. 2 of the Controlled Drugs and Substances Act unless you have a prescription written for you by a licensed medical practitioner.
 For Mr. G, you are to attend, participate in and complete such counselling as directed by and to the satisfaction of your probation officer.
 Any submissions with respect to Mr. H and counselling?
 MR. L. MYERS: Well, he — I don’t have any submissions. He doesn’t seem to be in need of it and he is — you get counselling through your pastor at the church, do you not? He’s acknowledging that so I —
 THE COURT: All right. Yes, and that was my sense from reading the report so under the circumstances there will not be a counselling provision with respect to Mr. H.
 Before I get to the ancillary orders, any other submissions about terms of the probation order?
 MR. L. MYERS: Just this observation, if I may with respect, it’s only the issue of employment. I don’t know what his employment will be with Shaw. Sometimes they have them selling stuff in the malls but it will be up to his probation officer.
 THE COURT: Exactly, exactly, and that is why I have left it —
 MR. L. MYERS: I just wanted to clarify that with you.
 THE COURT: Yes, and I have left it to the discretion of the probation officer and I am certain that for employment it will not be a problem.
 MR. L. MYERS: Good, thank you.
 THE COURT: Mr. Ip, anything from your perspective before I get to the ancillary orders?
 MR. IP: Only the court would maybe consider a no weapons condition on the probation order.
 THE COURT: Yes, I will make a no weapons. You shall not possess any weapons, as that term is defined in s. 2 of the Criminal Code.
 As well, in terms of ancillary orders, pursuant to s. 109 of the Criminal Code, I am going to impose a ten-year firearms prohibition.
 This is a secondary designated DNA offence. I am satisfied that the provision of a DNA sample is minimally intrusive and may assist in the administration of justice so I am going to order each of you to attend — and I do not think I have my cheat sheet up here — but to attend at the RCMP office to provide a DNA sample. Madam Registrar?
 THE CLERK: Your Honour, it’s Wednesdays, Thursdays, 8:00 a.m. to 3:00 p.m.
 THE COURT: I am sorry, Wednesdays and Thursdays, did you say?
 THE CLERK: Yes.
 THE COURT: All right. I am going to order that by this Thursday at 3:00 p.m., you are each to attend at the RCMP station to provide a DNA sample.
 Finally, there will be a forfeiture order with respect to any items that were seized as a result of the investigation.
 MR. IP: And time to pay the victim fine surcharge, Your Honour?
 THE COURT: Defence, any submissions with respect to time to pay? I believe it is $200 because it is proceeded by way of Indictment.
 MR. L. MYERS: Two weeks.
 THE COURT: All right.
 MR. SHAPRAY: Yeah, that’s fine, two weeks.
 THE COURT: All right. Two weeks to pay the victim fine surcharge for each of you.
 MR. IP: Perhaps just so we have a definite date, by the 12th of February? That will be a Friday, I believe.
 THE COURT: All right. February 12th.
 MR. SHAPRAY: Count 1 with respect to Mr. G?
 MR. IP: Yes, so for Mr. G on Count 1, Crown directs a stay of proceedings. With respect to Mr. H on Count 2, Crown directs a stay of proceedings.
 THE COURT: All right, thank you.
(REASONS FOR SENTENCE CONCLUDED)