R. v. Orr

2014 BCSC 563 R. v. Orr IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Orr, 2014 BCSC 563 Date: 20140307 Docket: 160103‑2 Registry: Victoria Regina v. Andrew Mark Martin Orr Kristine Diane Smedley Before: The Honourable Mr. Justice MacKenzie Oral Reasons for Sentence Re Accused Andrew Orr Counsel for the Crown: T. Corsi Counsel for the Accused: M. Allen Place and Date of Trial/Hearing: Victoria, B.C. March 7, 2014 Place and Date of Judgment: Victoria, B.C. March 7, 2014 [1] THE COURT: Mr. Orr is before the court this morning for sentencing, having entered pleas of guilty on Counts 1 and 3. Count 1 is a charge of possession of marihuana for the purpose of trafficking, and Count 3, possession of methamphetamine for the purpose of trafficking. After Mr. Orr entered guilty pleas to those two counts, the Crown entered stays of proceedings on each of the counts that Ms. Smedley was charged with, as well as the two remaining counts pertaining to Mr. Orr, that being Count 2, production of a controlled substance, marihuana, and Count 4, possession of cannabis resin for the purpose of trafficking. [2] The position of the Crown with respect to what is a fit and just disposition for Mr. Orr today is a jail sentence of 30 months. The defence submits that, having regard to the totality of the circumstances in this particular case, a conditional sentence would be an appropriate disposition. [3] At the outset, it is important to recognize that Mr. Orr entered pleas of guilty to the two matters that I am to sentence him on this morning. The guilty pleas were entered, as counsel has acknowledged, at the completion of a voir dire where the issue was the validity of the search warrant. On that point, even though I dismissed the defence application to set aside the search warrant, there is no question that there were triable issues that were properly canvassed by the defence during the voir dire. Moreover, that voir dire was conducted efficiently and I am satisfied in these particular circumstances, notwithstanding the guilty pleas could not be said to have been entered at the very earliest opportunity, they should be given significant weight with respect to this sentencing proceeding. [4] In addition, I am advised without any contradiction by the Crown that Mr. Orr was more than cooperative with the investigating police officers, he made a full and complete statement, accepted responsibility for the narcotics that were found in his residence, and acknowledged frankly to the officers that Ms. Smedley had no control whatsoever over the narcotics that were found. [5] As I have said, the Crown's position is that, notwithstanding the guilty plea, that it would be appropriate to consider the amount of marihuana in the residence, which of course would be a factor to the plea of possession for the purpose of trafficking. There were a lot of plants, some six or seven hundred, varying in size from three feet to six inches, but for the purpose of sentencing, counsel agreed that it would be appropriate for me to view the amount of product that was available for sale or distribution, the one‑half pound found in the kitchen would be valued at approximately $800 to $1,000. There is no question that the size of the other marihuana or the amount of the other marihuana is relevant to a certain degree but, by the same token, it is appropriate to acknowledge that it could hardly be termed a sophisticated operation with the plants growing in gardening pots. [6] As far as Count 3 is concerned, the Crown says that is a serious narcotic and I do not disagree with that. On this particular point, there was approximately four ounces and there was no value put forward with respect to that narcotic. Conversely, the defence says the product was very poor and the only reason it ended up in Mr. Orr's residence is that "interested" persons brought it over and enlisted Mr. Orr to try to improve its quality in order to make it more readily saleable. [7] Another aggravating feature quite properly pointed out by the Crown is the fact that Mr. Orr is not a first‑time offender and has a lengthy criminal record, commencing in 1983 and ending in 2011, the most serious offence being in 1992, a robbery for which Mr. Orr received three years in the penitentiary. [8] The authorities relied on by the Crown with respect to 30 months being within the appropriate range for a sentence in these circumstances is R. v. Shusterman and R. v. Strickland. I have read those cases and considered all of the principles contained therein, none of which I disagree with. In Shusterman, Justice Romilly, as he always does, has gone through many cases which always are of assistance with respect to what is a fit and fair disposition in each case. [9] But as counsel has quite properly pointed out, other authorities and ranges are only guidelines in an attempt to assist in predictability and consistency in sentencing, but clearly every sentence must be crafted with a view to the particular circumstances of the present offence, and the circumstances of the offender. [10] As far as Mr. Orr is concerned, he is now 48 years of age. At the time of the offence, he was living with his spouse, Ms. Smedley, and their two children. Those two children are now 10 and 14 years of age. Ms. Smedley was and is working full‑time, apparently she is a chef or a cook, and I am advised today that she might very well be working in logging camps, in order to earn income to support the two children, given that after the arrest of Mr. Orr, she and Mr. Orr separated, but that Mr. Orr still is fully involved in the lives of his two children. [11] Mr. Allen, on behalf of Mr. Orr, understandably acknowledges the prior criminal record of Mr. Orr, but notes that four of the five prior possession of narcotic offences are very dated, commencing in 1983 and ending in 1988. There was one in 1996, possession of a narcotic, for which there was a fine of $250. There are no prior PPTs or production offences, and it is significant that the related narcotic convictions are for possession and are very dated. In addition, the defence notes that the robbery was some 22 years ago when Mr. Orr was in his twenties, and that since 1996, there have been only three substantive offences, all emanating apparently from an impaired driving offence in 2002, for which Mr. Orr was fined, and then two subsequent driving while prohibited offences where fines were imposed. [12] Clearly Mr. Orr, after being released from the penitentiary for the 1992 robbery, has been a contributing member of society. The defence says that he has had his own contracting business, was involved in heli‑logging, and supported his wife and children. [13] That all changed, however, I am advised, when Mr. Orr was involved in a serious motor vehicle accident in 2010. As a result of that, he was hospitalized for approximately six months. I am advised he was in a coma for two months, he had a broken neck and a brain injury. As a result, he suffered residual psychological issues and was unemployable. He had to take heavy painkillers, including daily morphine. A heavy financial burden fell upon the family when they were required to refinance their mortgage in order to keep the family home they had been living in for a considerable period of time. [14] Following this is when, according to the defence, these interested people recruited Mr. Orr to help them get involved in the production of marihuana. He did so for financial reasons, given the financial difficulties the family was suffering from. [15] As I have alluded to, after his arrest, Mr. Orr has basically lost everything. The house is gone, his wife has left him, even though she acknowledges he is still a good father and is prepared to allow him to reside with her, depending on the outcome of today's proceedings. [16] So things looked extremely bleak for Mr. Orr until, I am advised, last summer when he had successful back surgery which has resulted in him ridding himself of the morphine and most of his pain. As I said, Ms. Smedley is apparently willing to have him live with her, depending on what happens today, and Mr. Orr says if he is allowed to serve a custodial disposition in the community, he would be able to care for his children on a daily basis, when his spouse is at the camps cooking, and he might very well be in a position to obtain some employment as a carpenter in the Sooke area. [17] On that point, with respect to the issue of whether a conditional sentence is appropriate, defence counsel has quite properly pointed out that Mr. Orr has been on judicial interim release for almost three years. There have been no breaches and no problems, and it is clear to me, given that fact, that Mr. Orr has the capacity to comply with a conditional sentence order if such a disposition would satisfy the principles of denunciation and deterrence. [18] The principles of sentence that I must adhere to and recognize include the traditional principles of specific and general deterrence, denunciation, and rehabilitation of the offender. In addition, there are the codified principles outlined in the Criminal Code in ss. 718, 718.1, and 718.2. [19] There is no question that PPT of any narcotic is a serious offence but, as counsel has pointed out, the range of sentence is wide‑ranging and depends on the circumstances of each individual offender. Moreover, there have been many cases, some of them in the materials that the defence has provided, which deal with cocaine trafficking and PPT, and notwithstanding the insidious nature of that narcotic, courts have imposed conditional sentences. [20] One of those decisions is R. v. Kozma, our Court of Appeal in 2000, where for four counts of trafficking in cocaine, a conditional sentence was imposed primarily because, as Justice Newbury pointed out at paragraphs 8 and 9, the Supreme Court of Canada in R. v. Proulx has clearly stated that in appropriate cases denunciation and deterrence can be satisfied by conditional sentences. [21] Therefore, having regard to the totality of the circumstances in this particular case, given the mitigating factors which I have referred to, the fact that there have been guilty pleas, that Mr. Orr has been on judicial interim release for almost three years, the fact that he could be a primary caregiver for his two children, I am satisfied that all of the principles of sentencing can be met by a custodial disposition of two years less one day, but that that disposition can be served conditionally. [22] I was of the view or am of the view that a traditional jail sentence in the range of nine to 12 months would be appropriate, and that is one of the reasons why the conditional order, Mr. Allen, is at the maximum provincial length, and for the same reasons -- well, and because I have imposed the maximum period of incarceration to be served on a conditional basis, I do not see the need for a period of probation to follow that. I am satisfied supervision by a supervisor for two would be more than sufficient in Mr. Orr's circumstances. [23] There will also be a DNA order as soon as is practicable, in the least intrusive means possible. [24] Pursuant to s. 109, Mr. Orr, I am required to prohibit you from having in your possession any firearms, ammunition, restricted weapons, prohibited weapons, et cetera, for life, and that will be explained to you downstairs. [25] With respect to forfeiture, Mr. Corsi, what are you after? [26] MR. CORSI: Yes, thank you, My Lord, working off of the exhibit flowchart, number 15 are the scales, and numbers 25 are marihuana grow equipment, being shrouds, 23 shrouds, number 26, there's light bulbs, and number 27, are ballasts. [27] THE COURT: Okay. [28] MR. CORSI: There are other items that -- zip‑lock baggies and the like, I leave that in Your Lordship's hands about whether those are necessary for a forfeiture order. I'll ask for it, I think. [29] THE COURT: Okay. [30] MR. CORSI: Just to be more complete. [31] THE COURT: Sure. [32] MR. CORSI: Thank you. [33] THE COURT: Any problem with that? [34] MR. ALLEN: No issue with any of those items, My Lord. [35] THE COURT: Those items are forfeited as requested by the Crown. [36] Is there anything else, Mr. Allen? [37] MR. ALLEN: Just wondering what the conditions on the conditional sentence will be, My Lord. [38] THE COURT: Keep the peace, be of good behaviour, and report to court when called upon to do so. Report immediately to your supervisor, Mr. Orr, and thereafter as and when directed. Advise your supervisor where you are residing at all times. [39] No weapons as defined by the Criminal Code. [40] Because it is a jail sentence, you are not to consume any alcoholic beverages or non‑prescription narcotics. [41] Because of the issue with the children and that sort of thing, Mr. Corsi, I am not going to order house arrest, I will simply make it a curfew. From 8:00 p.m. to 6:00 a.m. during the first nine months of your CSO, you are not to be outside of your residence during those hours, unless it is for a bona fide medical emergency or you have the written permission of your supervisor. After that, for the remainder of the CSO, we will make it 10:00 p.m. to 6:00 a.m., but with the same caveats, bona fide medical emergencies or with the written permission of your supervisor. Those conditions can always be varied upon application by either the Crown or the defence. [42] I am not sure if there is any need for counselling, given what I have heard so far, Mr. Allen. [43] MR. ALLEN: Absolutely nothing that I'm aware of in the circumstances, My Lord. [44] THE COURT: Okay. Mr. Corsi? [45] MR. CORSI: Thank you. [46] THE COURT: Any other conditions that either one of you think would be helpful? [47] MR. CORSI: I had considered community work service hours, although I understand he is providing care for children. And I understand there may be some potential for employment, which Crown would say would be more important than community work service hours. [48] THE COURT: I agree with you. There will not be any work service. Anything else, Mr. -- [49] MR. ALLEN: I suppose in the same regard, the surcharge. These offences predate the amendments to the surcharge change, and at this point he's simply on a disability allowance. I would ask Your Lordship to waive that in the circumstances. [50] THE COURT: Any submission on that, Mr. Corsi? [51] MR. CORSI: No, thank you. [52] THE COURT: All right. [53] MR. ALLEN: And the only other point, if Mr. Orr can remain out of custody while the documents are prepared, that would be appreciated. [54] THE COURT: All right. Just with respect to the surcharge, I am satisfied it would be an undue hardship on Mr. Orr to impose the surcharge, so it is waived. [55] Mr. Orr, make sure you do not breach any of those conditions, because if you do, you can be brought back to court and, if convicted of a breach of the CSO, liable to serve the remnant, the whole remnant or a portion of it. That would not be in your children's best interests. [56] Mr. Orr can remain out of custody while that documentation is -- [57] MR. ALLEN: Thank you, My Lord. [58] THE COURT: ‑‑ is completed. [59] THE CLERK: One question, My Lord, the DNA, when is he to report? I believe it's Tuesdays and -- [60] THE COURT: It depends whether it is the sheriffs, the City Police, or the Sooke RCMP, I do not know. [61] MR. ALLEN: It would be -- I think it's Sooke RCMP would be the easiest. [62] THE COURT: Okay, let us do this: the DNA is to be provided at the Sooke RCMP office on or before 4:00 p.m. March 14th, unless other arrangements are made between Mr. Orr and his supervisor. Are you okay with that, Mr. Corsi? [63] MR. CORSI: Yes, thank you, My Lord. [64] THE COURT: I think that is clear enough. Mr. Allen? [65] MR. ALLEN: Yes, I believe that should work -- [66] THE COURT: Okay. [67] MR. ALLEN: ‑‑ My Lord, thank you. [68] THE COURT: Okay. So nothing else? No? [69] MR. ALLEN: No. [70] THE COURT: All right, good luck, Mr. Orr. "B.D. MacKenzie, J." The Honourable Mr. Justice B .D. MacKenzie