R. v. McLellan

2012 BCSC 46 R. v. McLellan IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. McLellan, 2012 BCSC 46 Date: 20120113 Docket: 153925-2 Registry: Victoria Regina v. Nolan Oliver McLellan Edited for Publication Purposes Before: The Honourable Mr. Justice S. R. Romilly Reasons for Sentence Counsel for the Crown: C. J. Peel Counsel for the accused: C. L. Sutton Place and Date of Hearing: Victoria, B.C. January, 12, 2012 Place and Date of Judgment: Victoria, B.C. January 13, 2012 The offence [1] The accused was convicted of possession for the purpose of trafficking. The narcotic was 1.5 grams of rock cocaine which the accused intended to sell to an undercover police officer as part of a dial a dope operation. The value of the drug was $125. The evidence at the trial [2] Constable Eddy of the Victoria Police Department received word from a confidential informant that, "Nolan was selling crack and heroin out of [removed for publication purposes]. Nolan's phone number is [removed for publication purposes]." Constable Eddy phoned that number, and arranged to buy 1.5 grams of crack cocaine from him. After a few phone calls between the accused and Constable Eddy, the accused was arrested by Constable Eddy as the accused was heading to the area where the sale was supposed to take place. After his arrest, the accused was searched. The search revealed 1.5 grams of cocaine in the accused's under wear. The circumstances of the offender [3] The accused is 33 years old and the father of two daughters, one 18 years old and the second is 11 years old. He has been addicted to heroin and cocaine since he was 18 years old. I accept defence's submission that the accused was selling crack cocaine to support his drug habit. [4] The accused has not sought bail on this matter and has been in custody since his arrest on June 2, 2011. [5] The accused has an unenviable criminal record. His criminal record is as follows: [6] The accused's father and brother have filed letters of support. His father states that he recently has noticed a change in his son. In his opinion he seems to have matured. He states that he was proud that his son decided to complete his grade 12 the last time he was incarcerated. He states that his son is determined to change his lifestyle and for the first time in his life he acknowledges that he needs help to fight his demons. [7] His brother, who operates a boot camp, is willing to help his brother by providing a place for him to live and offering him a job upon his release. Position of the Crown [8] The Crown submits that pursuant to s. 719(3) of the Criminal Code [the accused should receive one day credit for each day served in pre-trial custody. She further submits that I should adopt the step up principle and sentence the accused to a period of an additional 20 months' incarceration plus probation for 12 months. In addition Crown counsel submits that there should be a mandatory lifetime weapons prohibition. Crown counsel agrees that the victim surcharge should be waived. [9] Crown counsel submits that the aggravating factors in this case include the prior criminal record of the accused, the harmful effect of crack cocaine and the fact that the maximum sentence for this offence is life imprisonment. Position of the defence [10] Defence counsel submits that the accused should receive 1 ½ days credit for each day that he spent in pre-trial custody but in any event he should not be sentenced to a period in excess of an additional 4 ½ months imprisonment. She agrees with the imposition of an additional 12 months' probation at the end of his period of incarceration. [11] Defence counsel submits that the mitigating factors are that the accused is a drug addict who, with the help of his father and brother, is making an attempt to turn his life around. Drug addict committing drug offences [12] With respect to the addiction of the accused I note that where a drug addict commits a drug offence, the fact that he or she is a drug addict may be a mitigating factor in sentence: R. v. Stephenson (1957), 117 C.C.C. 292 at 295 (B.C.C.A.); R. v. Lebovitch (1979), 48 C.C.C. (2d) 539 (Que. C.A.) at 542; R. v. Preston (1990), 79 C.R. (3d) 61, 47 B.C.L.R. (2d) 273. The applicable statutory sentencing provisions [13] Section 718 of the Criminal Code states that the fundamental purpose of sentencing "is to contribute ... to respect for the law and the maintenance of a just, peaceful, and safe society". This is to be achieved by imposing sentences which have, among others, the following objectives: - separating offenders from society, where necessary; - denouncing unlawful conduct; - general deterrence; - rehabilitation; and - the promoting of a "sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community". [14] Section 718(d) states that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances" and section 718.2(e) states that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". [15] Section 718.1 of the Criminal Code states that any sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". [16] Section 10(1) of the Controlled Drug and Substances Act ("CDSA") sets out the following principles of sentencing which are applicable to offences against its provisions: (1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [17] In R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 the Supreme Court of Canada considered the principles of sentencing set out in the Criminal Code and indicated that any sentence imposed, regardless of the weight given to the factors set out in section 718.1 to 718.2 of the Criminal Code, must "respect the fundamental principle of proportionality" (at para. 40): The objectives of sentencing are given sharper focus in s. 718.1, which mandates that a sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender". Thus, whatever weight a judge may wish to accord to the objectives listed above, the resulting sentence must respect the fundamental principle of proportionality. Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and the instruction to consider "all available sanctions other than imprisonment that are reasonable in the circumstances", with particular attention paid to the circumstances of aboriginal offenders. [18] In Nasogaluak, the Supreme Court of Canada also considered the concept of "range of sentence" and indicated, at para. 44, that they constitute "guidelines rather than hard and fast rules": The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code. But it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which the offence occurred. Dial-a-dope operation [19] In R. v. Franklin, 2001 BCSC 706 Henderson J. comments on the seriousness of the dial-a-dope operation. He stated at paras. 17-21: [17] Some explanation of Dial-A-Dope operations is relevant. [18] Traditionally, drugs were disseminated at the street level by purchasers going to certain areas of town and taking the initiative to seek out those who sold the drugs on street corners and in back alleys. This, to some extent, constrained the dissemination of the product. A Dial-A-Dope operation is different. Anyone, anywhere in the Lower Mainland, can place a telephone call to a vendor of narcotics and, after establishing his or her credibility by satisfying the vendor that he or she is not an undercover officer, make an arrangement to have the drugs delivered to wherever the purchaser happens to be. Typically, the drugs are delivered within fifteen or twenty minutes and handed over in exchange for cash. [19] This has several significant results. [20] First, it makes these drugs, and I refer primarily to cocaine and heroin, more readily accessible throughout the Lower Mainland than they have been in the past. It makes them accessible with less effort on the part of the purchasers. Purchasers, and here I think of adolescents, who might feel intimidated at the thought of seeking out a drug dealer in the recesses of the Main and Hastings area may nevertheless, in the relative comfort and safety of suburban locations, easily purchase cocaine and heroin as long as Dial-A-Dope operators are willing to oblige them. [21] I infer also that Dial-A-Dope operations are profitable. There is no evidence before me as to how much a typical Dial-A-Dope dealer makes in the course of a day or a week but, having sat as the trial judge on a number of these cases, I am aware that it is a profitable way to make easy money. [20] These observations were adopted by the B.C.C.A. in R. v. Ali, 2010 BCCA 4 at para. 11. [21] In R. v. Martinez, 2001 BCCA 0712 (B.C.C.A.), the court discussed the range of sentences for these offences. They range from a low of six months in R. v. Vu (1998), 103 B.C.A.C. 252 (B.C.C.A.) and R. v. Nguyen, [1998] B.C.J. No. 1191 (S.C.)(QL), and as high as twelve months R. v. Bains, [1998] B.C.J. No. 809 (S.C.)(QL); and R. v. Farnsworth (2000), 149 B.C.A.C. 85 (B.C.C.A.), where the prison term was reduced from 14 months to 10 months but the accused had been in prison for a couple of months when he was sentenced. Higher sentences for this offence were also imposed in R. v. Cook, [2001] B.C.J. No. 707 (C.A.) (QL); R. v. Bang Vu, (1996), 81 B.C.A.C. 267 and R. v. Diep (1999), 135 B.C.A.C. 159. In R. v. Duong, (February 18, 2003) CA028226 (B.C.C.A.) the court upheld a six month sentence for a dial-a-dope scheme. Other cases of note include R. v. Reddy, 2002 BCPC 146 and R. v. Nguyen & Bui, 2003 BCCA 686. The aggravating features of a "dial-a-dope" operation were subject of comment in R. v. Le, 2002 BCCA 98 (B.C.C.A.). [22] See also R. v. Tran, 2007 BCCA 405 and R. v. Rastgoei, 2008 BCCA 242. Step up principle [23] This, in my view, is not a case where the step up principle applies. This is clearly a case where the principles of deterrence and denunciation should be stressed. It is noteworthy that in R. v. Vickers, 2007 BCCA 554, Frankel J.A., wrote that the step up principle has no application when the dominant sentencing factor is protection of the public. He stated at para. 16: However, this Court has held that the step principle has no application when the dominant sentencing factor is protection of the public: R. v. Robataille (1993), 31 B.C.A.C. 7 at paras. 8, 9; R. v. McCallum, 2004 BCCA 341, 200 B.C.A.C. 112 at para. 10; R. v. Willier, sub nom R. v. L.D.W., 2005 BCCA 404, 215 B.C.A.C. 64 at para. 30. Crack cocaine [24] In deciding the sentence that I should impose in this case it is indeed noteworthy that many cases have specifically pointed to the harmful consequences of crack-cocaine use and trafficking: R. v. Woolcock, [2002] O.J. No. 4927 (C.A.) at para. 8; R. v. J.C., [2000] O.J. No. 5995 at para. 3; and R. v. Colquhoun, [2002] O.J. No. 5412 at para. 12. In R. v. Woolcock, the Ontario Court of Appeal stated at para. 8 that "[t]here is no disputing that crack cocaine is an extremely dangerous and insidious drug with the potential to cause a great deal of harm to individuals and society". Sentence I intend to impose [25] After considering the aggravating and mitigating circumstances in this case, the submissions of counsel and the range of sentences for this type of offence, I sentence the accused to a period of 12 months' imprisonment. In addition, the accused would be placed on probation for a period of 12 months from the date of his release from prison. He would also be placed on a weapons prohibition for life. [26] This brings me to the thorny question of how I should deal with the accused's pre-trial custody. To be more specific, how much credit should the accused receive for the time he has already spent in custody. Pre-sentence custody [27] Mr. McLellan has been in custody since his arrest on June 2, 2011, a period of approximately 7 months. Mr. McLellan did not seek judicial interim release. He was remanded from time to time by consent. In R. v. LeBlanc, 2011 NSCA 60, at para. 22, it was noted that various factors "may justify the principled exercise of the sentencing judge's discretion to abridge or even deny credit for remand time, including evidence that earlier release would not promote rehabilitation, failure to seek bail, remand because the accused failed to appear as required, the offender's conduct while on bail such as breach of conditions of release, a significant or violence based criminal record, or that the offender would pose a danger to society" (my emphasis). [28] Section 719(3) of the Criminal Code limits any "credit" provided by a sentencing court for pre-sentence custody to one day for each day in custody. It states as follows: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [29] Thus, the providing of a credit for pre-sentence custody is not mandatory. The Court "may" do so. If the Court determines that a credit should be provided, then it must limit that credit "to a maximum of one day for each day spent in custody". This requirement is subject to one exception which is contained in section 719(3.1) of the Criminal Code. It states as follows: Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [30] Therefore, the court can provide a credit of one and one-half days for each day spent in custody, but only if the "circumstances justify it". Section 719(3.1) does not define or describe what circumstances would justify an increase from the maximum credit mandated by section 719(3) of the Criminal Code, but an increase from a one for one credit is not automatic and requires circumstances which justify an increase. [31] I agree with the comments made in R. v. Morris, 2011 ONSC 5206, [2011] O.J. No. 3995 (S.C.), at para. 41, in which it was held that the "effect of establishing a general rule expressed in mandatory terms of a maximum of 1:1 credit is to exclude from consideration under s. 719(3.1) factors that would apply to all accused who have been detained in custody prior to sentence". [32] In my view, a court must be able to explain why it is providing any credit for pre-sentence custody and in particular why it is granting an increase in the maximum credit prescribed by s. 719(3) of the Criminal Code (see s. 719(3.2) of the Criminal Code and R. v. Hussein, 2011 ABQB 601, at paras. 28 to 32). In the case at bar I am unable to explain why I should provide credit to the accused apart from the one day for each day that the accused served in pre-trial custody. [33] Having imposed a sentence of one year imprisonment, and having found that the accused has already served a period of 7 ½ months in custody, the accused would be required to serve an additional sentence of 4 ½ months in custody. [34] On his release from custody, the accused would be placed on probation for a period of twelve months. The terms of his probation would be as follows: You shall keep the peace and be of good behaviour. You shall appear before the court when required to do so by the court. You shall notify the court or your Probation Officer in advance of any change of name or address, and promptly notify the court or the Probation Officer of any change of employment or occupation. Within 48 hours after completion of your jail sentence (or conditional sentence) you shall report in person to the probation office located at 836 Courtney St., Victoria, BC and after that you shall report as directed. You shall: b). make reasonable efforts to seek and maintain employment approved by the Probation Officer. You shall not possess or consume any alcohol or any controlled substance as defined in Section 2 of the Controlled Drugs and Substances Act, except as prescribed for you by a physician. You shall not possess any cell phone, pager or portable telecommunication device, except for purposes directly and immediately related to your employment. You shall not enter into the area bounded by the following streets: Bay Street to the North, Blanchard Street to the East, Queen's Avenue to the South, and Douglas Street to the West; except as follows: a). with the advance written consent of the Probation Officer, in which case the written consent shall be carried on your person while you are in the Red zone You shall attend, participate in and successfully complete any assessment, counselling or program as directed by the Probation Officer which may include: b). alcohol or drug abuse; or i). such full-time attendance program as may be directed by the Probation Officer; and you shall comply with all rules and regulations of any such assessment, counselling or program. A Weapon/Ammunition Prohibition [35] Section 109(1)(c) of the Criminal Code indicates that a court "shall" impose a weapon/ammunition prohibition upon an offender convicted of a breach of section 5(2) of the CDSA. Section 109(2) of the Criminal Code indicates that the duration of such an order shall be as follows: An order made under subsection (1) shall, in the case of a first conviction for or discharge from the offence to which the order relates, prohibit the person from possessing (a) any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance during the period that (i) begins on the day on which the order is made, and (ii) ends not earlier than ten years after the person's release from imprisonment after conviction for the offence or, if the person is not then imprisoned or subject to imprisonment, after the person's conviction for or discharge from the offence; and (b) any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [36] The words "not earlier" in s. 109(2)(a)(ii) indicates that 10 years is the minimum prohibition which must be imposed for the items listed in section 109(2)(a). Considering the nature of the earlier prohibition issued in relation to Mr. McLellan and the need to deter drug dealers from possessing firearms, I have concluded that the following order is appropriate: Mr. McLellan is prohibited for life from possessing any firearm, prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance. [37] By consent, the Federal victim surcharge is waived. "S. R. Romilly, J." The Honourable Mr. Justice Romilly