Court Information

Ontario Court of Justice

Date: September 12, 2014

Court File No.: Toronto 11-10006442

Parties

Between:

Her Majesty the Queen

— And —

Joseph Pimblett

Before

Justice K. Caldwell

Reasons for Judgment released on: September 12, 2014

Counsel

Mr. Aaron Schacter — counsel for the Crown

Mr. Peter Lam — counsel for the accused Mr. Joseph Pimblett

Judgment

K. Caldwell J.:

[1] Mr. Pimblett pleaded guilty to the offences of marihuana production and fraudulent consumption of electricity. This judgment contains my reasons for sentence.

[2] It is difficult to determine the appropriate sentence for an individual facing significant emotional and some cognitive challenges who operated a very substantial and sophisticated grow operation with certain aggravating features.

Position of the Parties

[3] Given the 2011 offence date, a conditional sentence is available and requested by Mr. Pimblett. The Crown argues that the sentence should be 18 months of "real jail". I find that a conditional sentence of two years less one day with strict conditions is the appropriate sentence.

Overview of the Operation

[4] The operation's discovery was somewhat dramatic. The grow operation was in a home in a residential neighbourhood. A supervisor for Toronto Hydro was driving along Warden Avenue when he noticed that the hydro line leading to the house had fallen and was lying live across the driveway in the residential neighbourhood. He contacted a Hydro crew to attend. The crew discovered that the line had been tampered with, was overloaded, and thus had burned and fallen to the ground. This fact led Hydro to suspect that a marihuana grow operation might be contained inside.

[5] The police obtained a search warrant and found a sophisticated grow operation. There were 1460 plants in two growth stages. The equipment consisted of 25 electrical ballasts, 22 high intensity lights, 6 air conditioning units, 2 CO2 generators, 6 air filters, plus water pumps and fans. 2,548 grams of dried marihuana, packaged and ready for sale, were also found.

[6] In another interesting twist, Mr. Pimblett, through his counsel Mr. Lam, contacted the police before the warrant had even been obtained. It appears that Mr. Pimblett had somehow learned of the police and hydro presence at the house, knew that the police likely would enter, and became concerned for the safety of the officers given the potential dangers stemming from the CO2 generators. Through Mr. Lam, he relayed to the officer in charge the location and presence of the generators, and how to turn them off. The officer in charge expressed his surprise to Mr. Lam at the highly unusual nature of the call and thanked him.

[7] Further, Mr. Pimblett told Mr. Lam that he wanted to turn himself in. Again, this was done prior to any contact from the police and before the search warrant had even been executed. As Mr. Pimblett was not the owner of the home, it is possible that the police wouldn't have learned of his involvement but for his willingness to step forward and take responsibility. During the course of this protracted sentencing hearing, it was established that the home's owner was Mr. Pimblett's cousin. Whether the cousin had direct involvement in the grow is an open question; however, it was an accepted fact that Mr. Pimblett did not have the capacity to establish and maintain an operation of this degree of sophistication without a great deal of guidance. He does admit that he was the hands-on operator.

Sentencing Law

[8] The primary issue is whether a conditional sentence is appropriate. The leading case on this issue is R v Jacobson, in particular the following quote of Mr. Justice Rosenberg:

…..[I]t could not be said that a lengthy conditional sentence with strict terms would have been unfit, although in my opinion a conditional sentence for a cultivation operation of this magnitude in a residential area would be rare, even for a first offender. However, the fresh evidence demonstrates that a custodial sentence would be devastating for this appellant…

[9] The question is whether this is one of those rare instances in which a conditional sentence would be warranted, particularly given that Mr. Pimblett has a prior record. I find that this is such an instance.

[10] I have borne in mind that general deterrence and denunciation are significant factors in determining sentences for these offences. There are many reasons for this, including the risk of violence that attaches to drug offences.

[11] In R v Song, a conditional sentence was inappropriate in part due to the lack of significant mitigation. The Court noted the lack of issues of "ill-health, dire financial need or addiction" – the operation was purely an economic venture.

[12] Mr. Pimblett is not an addict and his involvement in this venture was for economic gain. As with many aspects of this case, even this factor had a unique twist.

[13] Mr. Pimblett did not get involved simply to sustain a lavish lifestyle or accumulate impressive material assets. He did it in part to prove to his family that he could be financially independent, a status that was difficult for him to achieve through regular employment given his particular challenges. More significantly, he did it to earn money to pay for litigation to regain custody of his young daughter. There is no question that earning money in this fashion in order to pay his family court legal costs cannot be condoned. Further, I have no idea if there would be any merit to such litigation – sadly for him, I suspect not given that I understand he lost his family court case "badly" and had to pay his ex-wife's legal costs. I find, however, that these emotional drivers, however misplaced, are more deserving of compassion than a mere desire to accumulate assets.

Mitigating Factors

[14] Another unusual aspect of this case was the sheer amount of time that I had to get to know Mr. Pimblett and his circumstances. Parenthetically, I note that it would be marvellous if the justice system could accommodate this degree of time in every case but unfortunately that isn't possible.

[15] I saw Mr. Pimblett over many, many days, often simply appearing in court to be adjourned. The adjournments came about for a variety of reasons and the "fault" did not rest with one party. Each time he showed up in court with his parents. The proceedings would be brief and he would say little if anything on each of these occasions. Our impressions of people are not drawn just from their words, however, or from their background details. We also get a sense of others from watching their behaviour, expressions and other nuances over an extended period of time. My overall sense of Mr. Pimblett was positive – he seemed concerned and interested in the proceedings, engaged, open and straightforward.

[16] Further, I had the benefit of hearing about half a day of testimony from his mother, his sister, and Mr. Pimblett made a number of comments himself. Mr. Lam, Mr. Pimblett's counsel, deserves a great deal of credit for the time he took in gathering and presenting the evidence on this hearing.

[17] One of the focal points of this testimony was a crime that occurred over ten years ago. Mr. Pimblett was the victim. Justice Molloy's sentencing decision in that case was entered as an exhibit in this hearing. She described a "particularly vicious and cowardly assault" in which a group of men beat another group of men, including Mr. Pimblett, senseless.

[18] Mr. Pimblett's injuries were the worst of the group. He was "lucky to be alive", had a shattered skull, serious damage to his eye, was in a coma for three days and was left with "cognitive problems, poor impulse control and personality changes".

[19] Mr. Pimblett's mother and sister elaborated upon the effects. His mother attributed virtually all of Mr. Pimblett's difficulties to that incident. I suspect that there may have been a few issues prior given that Mr. Pimblett's first criminal conviction preceded that incident. Similarly, his failure to complete high school also preceded that incident and he commented in his pre-sentence report (PSR) on one or more suspensions for absenteeism and "pranks". Having said that, I fully accept that Mr. Pimblett's abilities and personality were drastically impacted by the 2003 assault.

[20] Mr. Pimblett's younger sister Emily lives with her brother because he has trouble functioning on his own reliably. She said that her brother has a great deal of trouble making decisions, gets overwhelmed very easily, has difficulty managing his time, is very impetuous and exhibits very poor judgment. She finds that he gets very easily stressed and easily depressed. Her mother testified to the same characteristics. Both found that these qualities developed after the 2003 assault.

[21] Finally, I find that Mr. Pimblett's behaviour on the date the warrant was executed is mitigating. Sadly, it is rare to encounter someone who so readily takes responsibility and who is willing to step forward and warn the police about the dangers of entry. That very behaviour perhaps is illustrative of Mr. Pimblett's naiveté but it is unfortunate that it doesn't happen more often.

Aggravating Factors

[22] The size, amount of equipment and sophistication of this grow operation are aggravating factors. The dry and growing marihuana plants had a very substantial street value. The existence of a hydro bypass further increases the seriousness, as did the CO2 generators. Finally, the downed hydro wire also is aggravating given the clear risk to life generated by that situation. It is very fortunate that a Hydro employee just happened to be passing at the time and noticed the wire.

[23] Mr. Pimblett has a prior record. It covers four prior instances encompassing nine prior convictions, including four for drug offences, though none for production or trafficking.

Applicability of a Conditional Sentence

[24] R v Proulx is the SCC case that outlined the guiding principles in determining the appropriateness of a conditional sentence. The Court made it clear that conditional sentences, unlike probation, serve both a rehabilitative and a punitive purpose. The Court also noted that when general deterrence and denunciation are primary factors, jail often will be the preferable result. Still, the Court held:

[H]owever, a conditional sentence may provide sufficient denunciation and deterrence, even in cases in which restorative objectives are of lesser importance, depending on the nature of the conditions imposed, the duration of the sentence, and the circumstances of both the offender and the community in which the conditional sentence is to be served.

[25] I find that Mr. Pimblett would not be a danger to the community if he served his sentence in his home, especially with strict conditions. Further, I find that a penitentiary term is not required here. Both of these findings open the door to the conditional sentence.

[26] Sentencing for production offences requires great emphasis upon denunciation and deterrence. As noted in Proulx, however, a conditional sentence can fulfill those objectives, particularly if the terms are strict. I find that a conditional sentence of maximum length, combined with a lengthy (12 month) house arrest provision and electronic monitoring accomplishes those objectives.

[27] Further, I find that despite his prior record, Mr. Pimblett is one of those rare offenders that warrants such a sentence for these particular offences. I make that finding upon balancing the aggravating features including his record against the extensive mitigating factors put forth by his sister, mother, and in his own comments.

Conclusion

[28] I find that a conditional sentence of two years less one day with stringent conditions to be further elaborated upon after consultation with counsel is the appropriate sentence in this case.

Released: September 12, 2014

Signed: "Justice K. Caldwell"