COURT FILE NO.: St. Catharines - 2111-998-11-N4116-00 2111-998-12-N0620-00
DATE: 2013·02·14
Citation: R. v. Woods, 2013 ONCJ 72
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DANIEL WOODS
Before Justice D.A. Harris
Heard on July 11, 2012 and October 22, 2012
Reasons for Sentence delivered on February 14, 2013
D. Anger ................................................................................................. for the Federal Crown
M. DelGobbo ............................................................................ for the accused, Daniel Woods
REASONS FOR SENTENCE
HARRIS J.:
[1] Daniel Woods entered guilty pleas to two counts of possession of cocaine for the purpose of trafficking.
[2] He is before me today to be sentenced.
[3] Crown counsel argued that the total sentence should be one of imprisonment for between four and five years. He also requested a firearms prohibition, a DNA order and a forfeiture order.
[4] Counsel for Mr. Woods argued that the total sentence should be imprisonment for between 18 months and two years less one day, followed by probation. He did not oppose the ancillary orders sought by Crown counsel.
[5] My task then, is to determine the appropriate sentence for Mr. Woods.
[6] In doing this, I must consider the facts underlying the offences here. I must consider Mr. Woods’ background. Finally, I must consider the fundamental purpose and principle of sentencing as set out in the Criminal Code. I propose to address each of these in that order.
THE FACTS
[7] On September 28, 2011, Niagara Regional Police officers were watching Mr. Woods when he met a known cocaine dealer/user and engaged in a drug transaction. The police officers moved in and arrested Mr. Woods.
[8] He was in possession of two bags containing a total of 36.5 grams of cocaine, which was worth $3,500. He also had $1,130 in cash in his possession. He admitted that he had another two ounces of cocaine in his residence. The subsequent search of that residence turned up two bags of cocaine. Each weighed 29.5 grams. The total value for this was $5,000. The police also found 16 ecstasy pills.
[9] Mr. Woods was released on a Promise to Appear after he entered into an Undertaking before an Officer-In-Charge.
[10] He was still bound by that Undertaking on February 16, 2012 when the police executed a search warrant at his residence and found 288.5 grams of cocaine, worth $25,000, plus 79 ecstasy pills, and $540 in cash.
BACKGROUND OF DANIEL WOODS
[11] I have had the benefit of a Pre-Sentence Report which sets out much of Mr. Woods’ background.
[12] He is now 24 years of age. He was 23 at the time that he committed these offences.
[13] He did not have a criminal record.
[14] He describes his childhood as “normal and uneventful”. His parents were good role models for him and his brother. They provided him with “every opportunity to achieve success”. He completed high school and one year at Brock University.
[15] No mention was made of any legitimate employment history.
[16] I was told that he had been selling drugs in order to support his gambling addiction.
[17] Since being charged, Mr. Woods has been attending regular counselling to address his gambling addiction.
[18] The Pre-Sentence Report notes that:
The subject describes himself as outgoing, determined, and hardworking. He also stated that he is aware that at times he can be “a challenge to get along with”, due to his impulsive behaviour, and “too smart for his own good”. The subject expressed remorse of his offence. He stated that he is disappointed in himself, and feels ashamed that his actions have negatively affected his family. The subject mentioned that he plans to return to school in the future. He would like to have a career and become a productive member of society. He also mentioned that he hopes over time to restore his family’s faith and trust in him.
[19] Counsel for Mr. Woods also filed a letter confirming Mr. Woods’ participation in counselling.
THE LAW
[20] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.
[21] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[22] The punishment should fit the crime, but there is no single fit sentence for any particular offence. The determination of an appropriate sentence involves attempting to apply a blend of the above principles, including specific and general deterrence, denunciation and rehabilitation.
[23] Section 718.2(e) of the Criminal Code provides that
All available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, …
[24] Appellate courts in Ontario have long recognized the fact that this principle is even more applicable in cases involving youthful first offenders.
[25] For example, in R. v. Priest, 1996 CanLII 1381 (ON CA), [1996] O.J. No. 3369 (Ont. C.A.), Rosenberg J.A. wrote at para. 17 that
The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except for very serious offences and offences involving violence, this court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.
[26] He went on to say at para. 18 that “the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances”.
[27] Then at para. 20:
The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge’s reasons, why the circumstances of this particular case require that this first offender must receive a sentence of imprisonment.
[28] These principles are not to be considered in a vacuum however.
[29] In that regard I note the statements of the Ontario Court of Appeal in two decisions referred to by counsel.
[30] In R. v. Bajada, 2003 CanLII 15687 (ON CA), [2003] O.J. No. 721 (Ont. C.A.), Weiler J.A. stated at paras. 12 and 13 that
12 In his book, Sentencing, 5th ed. (Toronto: Butterworths, 1999), Clayton C. Ruby states under the heading Cocaine at p. 865-866:
Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking. .... in the case of Finlay and Grelette, the accused were convicted of what was described as a very serious offence involving 20 ounces of high purity cocaine and were concluded to be close to the level of importers. Sentences of four and one-half and six and one-half years were imposed according to the accuseds’ relative degrees of involvement. The court noted that although general deterrence was the primary factor to be considered in the imposition of sentence, “the rehabilitation of the offender can never be entirely overlooked and in each case the offender must be dealt with as constructively as the circumstances of the case permit”.
13 It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record. See e.g. R. v. Marton, [1980] O.J. No. 868 (C.A.); R. v. Molino (1987), 2 W.C.B. (2d) 391 (Ont. Dist. Ct.); R. v. Charles, [1997] O.J. No. 2247 (Gen. Div.); R. v. Cummings, [1990] O.J. No. 2747 (Dist. Ct.); R. v. Jones (1999), 1999 CanLII 3700 (ON CA), 133 C.C.C. (3d) 1 (Ont. C.A.). In R. v. Finlay and Grelette, [1985] O.J. No. 236 (C.A.), referred to above, this court imposed a sentence of six and a half years on an offender with one minor criminal offence fifteen years earlier, having regard to his position in the drug hierarchy which was close to the level of an importer. Longer sentences were upheld in R. v. Boughner, [1999] O.J. No. 5449 (Sup. Ct.), aff’d 2002 CanLII 44975 (ON CA), [2002] O.J. No. 2181 (C.A.) where, in addition to credit of 14 months for 5 months of pre-trial custody, the appellant was sentenced to five and a half years imprisonment for possession of 66 grams of 74% pure cocaine for the purpose of trafficking and possession of money derived from the commission of an offence. An aggravating factor was evidence that the appellant had been trafficking in cocaine over the preceding one and a half years. He also had three prior convictions for possession of a narcotic and one conviction for possession for the purpose of trafficking. In R. v. Gibson (1996), 1996 CanLII 816 (ON CA), 87 O.A.C. 393 (C.A.), a sentence of eight years was upheld for trafficking in cocaine with respect to a repeat narcotics offender with a serious criminal record apart from drug convictions. More recently, in R. v. Bertucci, 2002 CanLII 41779 (ON CA), [2002] O.J. No. 3870 (C.A.), a sentence of seven years was considered by this court on an appeal from sentence respecting one count of conspiracy to traffic in cocaine following the appellant’s trial and conviction. Concurrent sentences respecting six counts of trafficking in cocaine during an overlapping period were also imposed. The court stated that a sentence of seven years was a fit sentence for the offence of conspiracy to traffic standing alone. However, having regard to the fact that one count of trafficking was set aside the court reduced the sentence to six years.
[31] In an endorsement in R. v. Bryan, 2011 ONCA 273, [2011] O.J. No. 1581 (Ont. C.A.), the Court stated at para. 1 that
Normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine.
ANALYSIS
[32] Mr. Woods was convicted of possession for the purpose of trafficking in just under 13.5 ounces or slightly less than a pound of cocaine.
[33] He was first caught with 95.5 grams of cocaine in September 2011.
[34] While awaiting resolution of that charge, he was caught with another 288.5 grams of cocaine in February 2012.
[35] As was indicated in the decisions of the Ontario Court of Appeal quoted above, cocaine is a very dangerous drug.
[36] It is clearly a very serious offence for someone to be in possession of 96 grams of such a drug. It is an offence that calls out for a sentence that makes it clear to anyone who might contemplate committing the same offence that we as a society will not tolerate such behaviour. The sentence must make it clear that anyone who commits such an offence should expect to go to jail for a very long time.
[37] Keeping in mind that “the rehabilitation of the offender can never be entirely overlooked and in each case the offender must be dealt with as constructively as the circumstances of the case permit” I could see my way clear to impose a reformatory range sentence such as that proposed by counsel for Mr. Woods had that been the full extent of the criminal acts committed by Mr. Woods.
[38] After all, he is a young man who had never been convicted of anything prior to this. He is remorseful. He accepts responsibility for what he has done. He understands that it was wrong. He understands that he has to change if he is to stay away from future criminality. He has undertaken the preliminary steps towards that change.
[39] I have taken all of the above into account along with the fact that he entered guilty pleas.
[40] Finally, I have taken into account the comments in R. v. Woolcock, [2002] O.J. No. 4927 (Ont. C.A.) where the Court stated at para. 13 that
One of the dangers of imposing a lengthy term of imprisonment on facts such as these is that it could impair the rehabilitation and reintegration of this person as a responsible member of his community.
[41] The Court then went on to state:
It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.
[42] All this however is greatly reduced in significance as a result of the fact that while awaiting disposition of that first charge, Mr. Woods was found to be in possession of an even larger quantity of cocaine for the purpose of trafficking. Under circumstances where I would expect him to be on his best behaviour, he committed an even more serious offence.
[43] When I take that into account, along with all of the above-mentioned mitigating factors, the appropriate total sentence is well outside of the reformatory range.
SENTENCE
[44] With respect to the possession of cocaine for the purpose of trafficking committed on September 28, 2011, I sentence Mr. Woods to imprisonment for 18 months.
[45] With respect to the possession of cocaine for the purpose of trafficking committed on February 16, 2012, I sentence Mr. Woods to imprisonment for 30 months to be served consecutively.
[46] I also make the following ancillary orders.
[47] These are secondary designated offences. I make an order pursuant to section 487.051 of the Criminal Code authorizing the taking from Mr. Woods of any number of samples of one or more bodily substances that are reasonably required for the purpose of forensic DNA analysis.
[48] Pursuant to section 109 of the Criminal Code, I prohibit Mr. Woods from owning, possessing or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for ten years.
[49] I also make an order for the forfeiture of the money and the drug paraphernalia seized here.
[50] Finally, I note that Mr. Woods will be without any financial income for a considerable period of time while he is in jail. He will not be in a position to pay anything. In light of that, I waive the victim fine surcharges.
Released: February 14, 2013 Signed: “Justice D.A. Harris”
Justice D.A. Harris