R. v. Moffatt

Reasons for Sentence

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. –

ALVIN MOFFATT

REASONS FOR SENTENCE

BEFORE THE HONOURABLE

JUSTICE G. MULLIGAN

On MARCH 5 th , 2012 at BARRIE, Ontario

APPEARANCES:

P. Brissette Agent for Federal Prosecutor

A. McLeod Counsel for Mr. Moffatt

March 6 th , 2012

REASONS FOR SENTENCE

Mulligan, J. (Orally):

[ 1 ] Mr. Moffatt, do you have anything to say before I pronounce sentence

MR. MOFFATT: No, thank you.

THE COURT: You may be seated.

[ 2 ] Mr. Moffatt pleaded guilty to three counts on an eight count indictment on October 12 th , 2011. Alvin Moffatt pleaded guilty to possession of marijuana for the purpose of trafficking, contrary to s. 5.2 of the Controlled Drugs and Substances Act , production of marijuana contrary to s. 7(1) of the Controlled Drug and Substances Act , and possession of a weapon, brass knuckles, contrary to s.88 of the Criminal Code of Canada .

[ 3 ] Prior to the plea, Moffatt brought an application attacking the validity of the search warrant seeking to have the evidence seized excluded, pursuant to s.24(2) of the Charter o f Rights and Freedoms . For reasons issued October 20 th , 2011, the defence application was dismissed. The sentencing hearing was adjourned so that a pre-sentence report and an electronic monitoring report could be obtained. The sentencing hearing took place on January 11, 2012. The offender appeared with his counsel, who made submissions on his behalf. A pre-sentence report was filed together with an electronic monitoring report. Both Crown and defence counsel submitted casebooks, setting out their respective positions for an appropriate sentence for this offender. The Crown submits that a fit sentence should be 12 months of incarceration followed by a period of probation together with ancillary orders. The defence submits that this is a proper case for a conditional sentence of imprisonment, for a period of two years less a day together with a three-year probation period to follow. The defence does not oppose the ancillary orders sought. The following are my reasons for sentence.

[ 4 ] There is no dispute as to the summary of facts submitted by the Crown. On June 23rd, 2010, the South Simcoe Police Services entered Mr. Moffatt’s home in Bradford pursuant to a search warrant. Among the items seized were: 451 marijuana plants at various stages of development, 54 bags of marijuana seeds together with growing paraphernalia including grow lights, shades, ballast, trays, rigs, water reservoirs, and humidity and temperature monitors. Police seized receipts indicating that the grow operation had been operating since the spring of 2008. Brass knuckles were also located in the residence. Mr. Moffatt was cooperative with the police.

THE OFFENDER

[ 5 ] The Crown filed a pre-sentence report which made reference to Mr. Moffatt’s previous record, which is not disputed. In 2007, he was convicted of marijuana production pursuant to s.7(1) of the Controlled Drugs and Substance Act . He received a 12 month conditional sentence and a 12 month probation order. In 2008, he was convicted of assault and given a conditional discharge plus 18 months probation.

[ 6 ] Mr. Moffatt is 34 years of age. His parents separated when he was an infant. He had difficulty in elementary school and was identified as a high needs student. He spent some time in group homes. He returned home as a teenager but left home when he was 17 or 18 to seek employment. He has a positive work record with nearly continuous employment. He had a long term domestic relationship which terminated with a domestic assault charge for which he received a conditional discharge as previously mentioned.

[ 7 ] The pre-sentence report indicates that he is a long term user of marijuana, but he reports that he has not used marijuana since his arrest on these charges.

[ 8 ] The report indicates that he was cooperative with the author of the pre-sentence report and he was cooperative with the police in connection with these charges. It appears that he responded well to community supervision with respect to the previous order and completed some counselling programs successfully. As the author of the report indicates in his assessment:

“This is a recidivist with two previous terms of community supervision. One was for very similar offences to do with producing drugs, namely growing marijuana. He served a conditional sentence plus probation. He has also had a term of probation for domestic assault which was for 18 months.”

[ 9 ] The author of the pre-sentence report makes a number of recommendations including that Mr. Moffatt seek counselling for substance abuse and attend life skills counselling.

POSITIONS OF CROWN AND DEFENCE

[ 10 ] As noted, the Crown seeks a term of incarceration of 12 months followed by a period of probation. Defence submits that this is a proper case for a conditional sentence of two years less a day together with an electronic monitoring program and a period of probation.

PRINCIPLES OF SENTENCING

[ 11 ] Parliament has now codified many former common law principles in the Criminal Code of Canada . Section 718 describes the fundamental purpose of sentencing to be “to contribute along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions.”

[ 12 ] The Code sets out six objectives for sentencing judges to consider.

(i) to denounce unlawful conduct;

(ii) to deter the offender and others from committing offences;

(iii) to separate offenders from society where necessary;

(iv) to assist in the rehabilitation of offenders;

(v) to provide reparations for harm done to victims or to the community; and

(vi) to promote a sense of responsibility in offenders and acknowledge the harm done to victims in the community.

[ 13 ] The Controlled Drugs and Substances Act , S.C. 1996, c19, provides additional sentencing principles at para.10(1) :

“Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for 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.”

AGGRAVATING FACTORS AND MITIGATING FACTORS

[ 14 ] Section 10(2) requires the Court to consider any relevant aggravating factors including previous convictions for designated substance offences and the involvement of a weapon.

[ 15 ] There are a number of aggravating factors here. Mr. Moffatt has a criminal record for two offences. The offences are recent and one of them is very similar to the matters before the Court. The previous offences did not involve a weapon offence. In this case, Mr. Moffatt has pleaded guilty to possession of brass knuckles.

[ 16 ] Mr. Moffatt was conducting his marijuana operation from his residence in a residential area of the community. Mr. Moffatt had a substantial amount of marijuana plants on hand together with dried marijuana and packaging seeds and growing paraphernalia. The quantity found and the receipts going back for one or two years prior to the seizure indicate that this was a sophisticated operation conducted for no purpose other than commercial gain.

MITIGATING FACTORS

[ 17 ] Mr. Moffatt has maintained a positive work record over the years in spite of his lack of formal education.

[ 18 ] Mr. Moffatt had entered a guilty plea with respect to the three counts before the Court.

[ 19 ] Mr. Moffatt has been cooperative with the police and with the author of the pre-sentence report and has attended counselling when recommended.

[ 20 ] While on probation previously, Mr. Moffatt was not charged with any breaches of the probation orders.

THE STEP PRINCIPLE

[ 21 ] Mr. Moffatt has a previous criminal record for a similar offence. The step principle discourages a dramatic increase in penalty but recognizes the need for an increased penalty for a similar offence. In R. v. McRea, [2008] BCCA 227, Mr. Justice Smith described the step principle as follows:

“The theory of the “step” approach is that, when an offender has a previous record for a related offence, the sentence should be escalated since the offender was not deterred by the previous sentence, but the escalation should be in moderate steps.”

[ 22 ] The Crown provided a casebook with a number of decisions from the Ontario Court of Appeal and other courts in support of its position that a period of incarceration of 12 months is required in this case to provide specific deterrence to Mr. Moffatt and general deterrence to others in the community who may wish to attempt to profit by similar ventures. Because of Mr. Moffatt’s previous recent conviction for a similar offence, the Crown opposes a conditional period of imprisonment.

[ 23 ] Defence counsel provides cases in support of its position that a conditional sentence would be appropriate in the circumstances of this case. In addition, defence provided discussion as to why the cases relied on by the Crown could be distinguished on the facts applicable to this case and the circumstances of this offender.

[ 24 ] The Court of Appeal has provided guidance as to whether or not a conditional sentence is appropriate for offences of this nature. In R. v. Jacobson , 2006 ONCA 12292 , 2006 Carswell Ont. 2331 , Rosenberg J.A. stated at para 31:

…It 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.

[ 25 ] On the facts of that case, the Court substituted a six month custodial sentence for an 18 month conditional sentence based on fresh evidence as to the accused’s mental health problems and his clinical issues.

[ 26 ] In R. v. Nguyen , [2007] ONCA, 645, La Forme J.A. repeated this principle that a conditional sentence for a cultivation operation in a residential area would be rare, and upheld the trial judge’s decision of the imposition of a 15 month period of imprisonment. The facts of that case indicated that 1121 plants were seized together with 18 pounds of harvested marijuana in addition to the theft of electricity. On those facts, the Court stated at para. 47:

“The trial judge determined that these circumstances required the need for denunciation and general deterrence that could not be achieved through a conditional sentence. She was entitled to do so. This was not one of those rare cases.”

[ 27 ] The Court went on to note that as well that the 15 month sentence of imprisonment imposed by the trial judge could be considered somewhat high but was not outside the range. The Court of Appeal did not interfere with that sentence.

[ 28 ] The Crown submits that R. v. Lozinski [2009] O.J. No. 5494 (O.C.J.) provides a basis for a custodial sentence in circumstances such as these. In Lozinski, Zisman J. rejected a conditional sentence for an offender who pleaded guilty to possession of weapons dangerous, production of marijuana and possession of marijuana for the purpose of trafficking. That offence involved the discovery of 264 marijuana plants together with growing paraphernalia in the offender’s home. The offender pleaded guilty and had no criminal record, and had completed a substance abuse program prior to the sentencing hearing. The Court imposed a period of eight months incarceration and noted at para 20.

“In my view, a conditional sentence is not appropriate in the circumstance of this offence, and for this particular offender. Denunciation and general deterrence mandate a custodial sentence. It is only by sentencing the defendant to incarceration that a strong message can be sent to like-minded individuals that establish grow operations in residential communities will not be tolerated and will have serious consequences.”

[ 29 ] Counsel for the defence submits that this is one of the rare cases where conditional sentences ought to be considered. The defence seeks to distinguish this case from other referred to by the Crown on the basis that the number of plants found or the lack of hydro theft charges lower the seriousness of the circumstances here.

[ 30 ] Defence counsel relied on R. v. Gorcsi, 2011 Caswell Ont. 11967 (O.C.J.) for the proposition that a conditional sentence can still be considered by the Court for an offender who does have a previous record. In Gorcsi, the offender pleaded guilty to a single count of possession of marijuana for the purpose of trafficking. Marijuana was seized during the execution of a search warrant at the offender’s home. However, as Harpur J. noted in Gorcsi, the offender’s previous convictions were dated and unrelated and the offender was in a stable relationship and had a broad and supportive network of friends. The Court noted that a conditional sentence will be rare for participants in commercial level trafficking, but noted as to specific deterrence for this offender:

“As to specific deterrence, Mr. Gorcsi has undergone the process of arrest and public prosecution. His broad social network is aware of his commission of this offence. His reputation in the community as a law abiding citizen has been destroyed. In short, a custodial sentence is not required to discourage Mr. Gorcsi from recidivism; he could not be mistaken about the many dangerous consequences of his conduct even without the prospect of a jail term.”

[ 31 ] I am satisfied that the range of sentence for these types of offences would be in the range of less than two years, therefore a conditional period of sentence merits consideration. The Supreme Court of Canada provided guidance as to when a conditional period of sentence ought to be considered in R. v. Proulx, [2001] S.C.R. 61. However, as the Court noted at para 106:

“There may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”

[ 32 ] I am satisfied that a conditional sentence is not an appropriate sentence for this offender with respect to these offences. If a conditional period of sentence is to be considered rare for a first offender, then it will be rarer still for an offender who has a criminal record similar to Mr. Moffatt’s.

[ 33 ] Mr. Moffatt pleaded guilty to two offences under the Controlled Drugs and Substances Act in connection with marijuana production and possession at his residence. In addition, he pleaded guilty to possessing brass knuckles at his residence. I am satisfied that this was not a small scale operation, and given the brass knuckles available to him, there was a potential for violence.

[ 34 ] Mr. Moffatt has a criminal record for two offences, one of which was for a recent similar offence of marijuana production under s.7.1 of the Controlled Drugs and Substances Act . He received the benefit of a conditional sentence of 12 months followed by a period of 12 months probation. It is clear that the conditional sentence imposed then failed to bring home the specific deterrence objective of s. 718.

[ 35 ] A conditional period of sentence under the circumstances of this offender would not be a fit sentence. In my view, Mr. Moffatt requires a period of incarceration to provide the specific deterrence required to denounce his unlawful conduct and to deter him from committing other offences. At the same time, any sentence imposed on Mr. Moffatt should assist him in rehabilitation when he re-enters the community after a period of incarceration.

[ 36 ] Mr. Moffatt, please stand. I am satisfied that a fit sentence is a period of 12 months incarceration followed by a period of two years probation. Terms of probation will be that you report to your probation officer upon your release and as directed thereafter, and take such counselling programs as may be directed by your probation officer.

[ 37 ] In addition, the following ancillary orders shall apply:

(i) There will be a DNA order under s.487.051 of the Criminal Code ;

(ii) There will be a mandatory weapons prohibition order under s.109 of the Code for ten years;

(iii) There will be a forfeiture order in connection with items of property seized by the Crown in according with Schedule “A” filed by the Crown at the sentencing hearing.

[ 38 ] I just want to break down the sentence with respect to the three counts. The first count which is count number five so my sentence is 12 months for that sentence. The next count is count six, so the sentence is 12 months concurrent to count five and the final count was count eight and I sentence to him to six months concurrent to count number five. So the totality of the sentence is 12 months.

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I,

Cathy Knelsen

(Name of Authorized Person)

certify that this document is a true and accurate transcript of the recording of

R. v. Moffatt

In the

Superior Court of Justice

(Name of Case)

(Name of Court)

held at

75 Mulcaster Street, Barrie, Ontario L4N 3P2

(Court Address)

taken from Recording

3811-04-20120305

, which has been certified in Form 1.

March 10 th , 2012

(Date)

(Signature of Authorized Person(s))