Court of Appeal for Ontario
Citation: R. v. Barham, 2014 ONCA 797 Date: 2014-11-13 Docket: C59273
Before: Weiler, Gillese and van Rensburg JJ.A.
Between:
Her Majesty the Queen Respondent
and
Wayne Barham Appellant
Counsel: Richard A. Fedorowicz, for the appellant Chris de Sa, for the respondent
Heard: November 7, 2014
On appeal from the sentence imposed on May 6, 2014, by Justice George Beatty of the Ontario Court of Justice.
Endorsement
1Wayne Barham (the “appellant”) was arrested and charged on January 17, 2014, with the offence of possession of hydromorphone for the purpose of trafficking. He was also charged with causing a disturbance and breach of probation. At the time of arrest, he also had outstanding charges for possession of cocaine (from November 27, 2013) and possession of stolen property (from December 5, 2013), as well as an outstanding charge for breach of probation.
2The appellant pleaded guilty to the six discrete offences and received a global custodial sentence of 14 months and 28 days, less 165 days of pretrial custody (110 days credited at 1.5 to 1).
3The sentence breakdown for the various convictions was:
Possession of hydromorphone for the purpose of trafficking: 12 months less 5.5 months of pretrial custody
Failure to comply with probation: 14 days concurrent
Cause disturbance: 14 days concurrent
Possession of cocaine: 2 months consecutive
Possession of property under $5000: 14 days consecutive
Failure to comply with probation: 14 days consecutive
4The appellant submits that the sentencing judge erred by:
failing to give weight to mitigating factors and overemphasizing other factors; and
imposing a harsh and excessive sentence for the offence of possession of hydromorphone for the purpose of trafficking.
5We do not agree that the sentencing judge made either of the alleged errors.
6On the first ground of appeal, the appellant points to mitigating factors such as the ten-year gap in his criminal record, his mental health problems and his cocaine addiction.
7The appellant is a habitual offender, with a criminal record that begins in 1989 and includes convictions for violent offences and drug offences. Although there is a ten-year gap in the appellant’s criminal record between 1995 and 2006, his record since 2006 has been consistent with numerous convictions in each and every year from then until the time of sentencing. Consequently, the sentencing judge made no error in giving effect to the appellant’s significant record.
8While the appellant points to his schizophrenia and cocaine addiction as mitigating factors, nothing in the record indicates a link between those conditions and the commission of the offences in question. In order for mental health issues and addiction to be considered as mitigating factors, there must be some connection between those matters and the criminal conduct at issue.
9As for the second ground of appeal, contrary to the appellant’s contention, the 12-month sentence for the hydromorphone offence is not harsh and excessive. Hydromorphone is a synthetic heroin substitute and is as serious a drug as heroin. Trafficking in heroin, even small amounts, will attract penitentiary time: R. v. Turner, [2003] O.J. No. 685 (C.A.), at paras. 2-3.
10Accordingly, the appeal is dismissed.
“K.M. Weiler J.A.”
“E.E. Gillese J.A.”
“K. van Rensburg J.A.”
