R. v. Cole

2014 BCSC 2408 R. v. Cole IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Cole, 2014 BCSC 2408 Date: 20140904 Docket: 60177-2 Registry: Chilliwack Regina v. Samantha Cole Travis Ronald Schroeder Before: The Honourable Mr. Justice Schultes Reasons for Sentence (Re Travis Schroeder) Counsel for the Crown: J.M. Le Dressay Counsel for the Accused Schroeder: G.K. Gill Place and Date of Hearing: Vancouver, B.C. September 4, 2014 Place and Date of Judgment: Vancouver, B.C. September 4, 2014 INTRODUCTION [1] On July 21st of this year, I convicted Mr. Schroeder of three counts on the indictment. Two counts were of possession of controlled substances -- cocaine and methamphetamine -- for the purpose of trafficking, and one count was of simple possession of heroin. CIRCUMSTANCES OF THE OFFENCE [2] In the summer of 2013 the Chilliwack Drug Section was conducting an investigation of suspected drug trafficking at an apartment on Princess Avenue. Mr. Schroeder had told his bail supervisor that this apartment was his home address. The police did curfew checks to confirm that he lived there and also saw him there during surveillance. [3] They amassed enough evidence to obtain a search warrant, which they executed on August 28, 2013. Mr. Schroeder was arrested after leaving the parking lot of the apartment as the passenger in a vehicle. It was stopped about six blocks away. He was carrying just over $1,000 in cash, 8.72 grams of methamphetamine, 1.25 grams of crack cocaine, a digital scale, empty baggies, and a smartphone. [4] The phone was examined and there were various incoming text messages using street terms for drugs, which I drew the inference were requests to purchase drugs from Mr. Schroeder. There was even a woman who was found at the scene by the police, waiting with her husband to meet with Mr. Schroder after she had sent a series of texts to him about a drug purchase. [5] In the bedroom of the apartment, which I found Mr. Schroeder slept in, the investigators located written records of drug sales and amounts owing by purchasers (which are known as "score sheets" in the drug trade), empty baggies, more than $2,000 in cash, half a gram of heroin, .2 grams of powdered cocaine, and two bags of methamphetamine, 13.48 and .3 grams respectively. [6] There was some structure to this trafficking operation. There were surveillance cameras mounted in the hallway and over the front door, providing views of those areas to monitors in the bedroom. There was a barricade for the front door, which was actually in place when the police started executing the warrant. In the kitchen, there were many small sheets of paper (which are called "business cards" in the drug trade) containing the phone number of the smartphone that Mr. Schroeder was carrying when he was arrested. CIRCUMSTANCES OF THE OFFENDER [7] We have had the benefit of a very thorough pre‑sentence report from an experienced probation officer, to which he attached another report that he prepared for Mr. Schroeder's previous conviction. As a result, we know quite a bit about Mr. Schroeder's background, and this information has been supplemented by his counsel's submissions. [8] He is now 36 years old. He has had some health problems in his life. He had a tumour on his back when he was a very young child, and the surgery to remove it left him with some fused discs. Because of this, he has reduced mobility and suffers from ongoing pain. He has also been assessed as having attention deficit disorder, but unfortunately has never received medication for it. This causes him difficulties with listening and sitting still. [9] He had a good employment history as a younger man. He worked his way up to being a production chef in an established restaurant, but he lost that job after going off on compensation for a work-related injury. [10] He acknowledges that he had a significant alcohol problem in those days. Drugs appear not to have been his main problem yet. [11] His employment was sporadic after losing the chef position, but there is hope on the horizon because before he got involved in these offences he was doing some work for a local house cleaning business. The owner of that business, Ms. Cameron, has come all the way from Chilliwack today to show her support for him. She also attended during the trial. She would actually allow Mr. Schroeder to stay with her if he is released today, and will offer him as much work as is possible with her small business, although because of the nature of that business she cannot guarantee him full-time hours. Many people in Mr. Schroeder's situation do not have anyone in the community who is willing to stand up for them, so the fact that he is receiving this kind of support is a positive factor on his behalf. [12] He and his co-accused Ms. Cole have a son together, who was born about nine months ago. According to the pre-sentence report Ms. Cole has a serious drug problem, including recent overdoses, so someone else is caring for their child right now on an informal basis. [13] In the previous pre‑sentence report he was not prepared to admit that he had any recent addiction problems. In the current report however he admitted to the probation officer that he was actually addicted to methamphetamine at the time of these offences. [14] He also admitted his responsibility for the offences in the current report, which is unusual in my experience, and he told the probation officer that he is open to taking any counselling and programs for substance abuse that may be available. He has already taken some programs while on remand. [15] The probation officer points out, as a cautionary note that Mr. Schroeder has performed terribly on probation and bail orders in the past. He has a record of about 13 breaches of such orders. In particular he has had difficulties with maintaining a stable residence and abiding by curfews. [16] In addition to the many breach convictions, his criminal record, which begins in 2009, contains five property-related offences. These are his first drug convictions. POSITIONS OF CROWN AND DEFENCE [17] Counsel agree that there should be credit for 15 months of pre-trial custody. [18] Crown counsel has provided cases in which straight time sentences of between six months and two years have been imposed. The Crown submits that I should focus on the nature and complexity of Mr. Schroeder's offences and the extent of his role in them, rather than just comparing the values of the drugs he possessed with the values found in the cases. In that regard, the Crown asks me to find that he was the principal of this operation. [19] The Crown seeks a sentence of an additional nine months' imprisonment, for an effective sentence of two years. [20] Mr. Schroeder's counsel submits that the value of the drugs involved is in fact an accurate indication of the sophistication and seriousness of the offences. In other words, if a person is carrying around $30,000 worth of drugs or cash, as opposed to $2,000, there is more going on in the former trafficking operation than in the latter. In her submission, these were relatively minor offences in comparison to the cases relied on by the Crown to support longer periods of imprisonment. [21] His counsel suggests that I should consider imposing a sentence of time served at this point, because the effective sentence of 15 months that would result is appropriate to the circumstances. She also cautions that Mr. Schroeder should not be punished for electing to have a trial, which was his right. [22] I certainly agree with her last point. I will not be imposing a harsher sentence than would otherwise be appropriate because he has had a trial. It is the other way around. A guilty plea can be a mitigating factor, and if an offender does not plead guilty then that factor is obviously not available. But the proper sentence for after a trial is whatever the circumstances and the applicable principles dictate. There is no penalty added to it. DISCUSSION [23] The circumstances do not permit me to draw inferences about whether anyone higher up in authority than Mr. Schroeder may have been involved in this trafficking operation. Regardless, his own role was certainly a major one. I would not call this a high‑level operation, but it had a degree of organization to it and he appears to have been very busy in carrying out his sales. He was clearly on the way to make some type of drug sale or delivery when he was arrested. [24] He was on bail for another offence when he committed these ones. His conviction history shows an inability to comply with court directions. [25] On the positive side, he has shown the ability in the past to do productive lawful jobs. He has a standing offer for at least part-time work and some good support in the community. If he was being sincere in his statements to the probation officer, then he has accepted responsibility for his offences and is receptive to receiving treatment for his addiction. [26] I would categorize his moral blameworthiness as moderately high. It is a serious enough offence of its kind and his degree of responsibility for it was complete. [27] Deterrence to Mr. Schroeder and others who might be inclined to engage in drug trafficking in that community is the principle that deserves the greatest emphasis here. There are places in Chilliwack where drug trafficking is going on now or could easily start up again, and he and others need to know that the sentences that will be imposed if they are caught will be more than just the cost of doing business. This activity just ruins an area. When you have people selling drugs, those who come and buy them are desperate -- they are going through terrible things in their lives. With that interaction you get violence and rip‑offs and all of the other nasty things that go with this trade. It is a blight on the community. [28] However, another principle that should not be deprived of emphasis in this case is rehabilitation. I take seriously Mr. Schroeder's apparent commitment to addressing his addiction. The fact that he has taken programs while in custody that he did not have to take and has satisfactorily completed them is entitled to weight. [29] I see him as being at a crossroads. At his age, if he takes his addiction seriously and tries to live a straight life, he has possibilities. Or, as he gets into his forties, he could start to become one of those worn‑down old drug addicts who is stuck in the life and eventually just dies of it. Really, it is up to him which path he chooses here. [30] I will deal with the ancillary orders first. [31] I order, pursuant to s. 487.051, that the number of samples of bodily substances that are reasonably necessary for the purposes of forensic DNA analysis should be taken from him. [32] I also prohibit him from possessing any of the items set out in s. 109 of the Criminal Code for a duration of 10 years. [33] As far as imposing a sentence of time served plus probation at this stage, I accept that he would like to get out in the community now and spend some time with his infant son, and would like to get some assistance with his addiction. The problem is that I think he is just not cut out for probation. He just cannot seem to comply with it, and I do not see the value in burdening either the probation office or Mr. Schroeder with what is virtually a guaranteed breach. To the extent that probation might have benefitted him, that is a shame, but I think that despite his good intentions it would be foolish to believe that he can suddenly comply now. It is ultimately up to him what he does in his life. There is good help in the community and he has got Ms. Cameron in his corner, so maybe she can steer him that way, but it is up to him. [34] I agree with the proposed credit for pre-trial custody. His record is going to read as being given credit for 15 months. Any other judge who deals with him again for selling drugs is going to be considering penitentiary time seriously. [35] The question is how much more jail time, if any, should he receive today? [36] If there had been no previous custody, I think that a balancing of the circumstances and sentencing principles would have resulted in concurrent sentences of 18 months on the two counts of possession for the purpose of trafficking, and a concurrent sentence of six months on the simple possession. So on Counts 1 and 2, I will impose concurrent sentences of a further three months' custody and on Count 3 I will impose a sentence of one day in custody. For the reasons I have given, I will not impose probation. [37] Mr. Schroeder, I wish you the best of luck and I hope you can accomplish what you are intending to do. I thank Ms. Cameron as well for showing you support. [38] MS. GILL: The victim surcharge, My Lord? I'm seeking that that be payable ‑- [39] THE COURT: I think I am compelled to give it, am I not? [40] MS. GILL: I think there has been a practice where Your Lordship -- we are asking Your Lordship to make it payable forthwith and in default one day. [41] THE COURT: All right. [42] MS. GILL: That has happened. [43] THE COURT: Payable forthwith and in default, one day. That is an excellent idea. The Honourable Mr. Justice T.A. Schultes