ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-8143
DATE: 20120625

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

TERRY RICARDO PHILLIPS
Applicant

Celine Harrington of the Public Prosecution Service of Canada, for the Respondent
James Harbic, for the Applicant

SENTENCING DECISION

JUSTICE L. RATUSHNY

[ 1 ] Mr. Phillips has pled guilty to two counts of trafficking in crack cocaine.

[ 2 ] On April 6, 2010 he sold 2.59 grams for $200.00 and on April 22, 2010 he sold 8.7 grams for $630.00, all to an undercover officer. On three other occasions in the weeks before April 6 he also sold crack cocaine to that officer. The total amount sold between the five transactions was 15.4 grams or almost ½ ounce.

[ 3 ] At age 38, Mr. Phillips is a repeat offender. His criminal record commences in 1991 as a youth and continues with twelve more offences as an adult including armed robbery and assault in 1992. The last entry on his record is in 2006 and involves the same activity as the present offences, namely trafficking in crack cocaine. His sentence in 2006 was six months incarceration.

[ 4 ] Mr. Phillips and his counsel request a conditional sentence of 2 years less one day all under house arrest followed by the maximum period of probation of 3 years. The Crown requests a sentence in the range of 30 to 36 months real jail and argues that a conditional sentence is inappropriate in all of the circumstances and particularly since Mr. Phillips has chosen to repeat his 2006 activities of trafficking in crack cocaine.

[ 5 ] The Crown submits that Mr. Phillips is simply presenting the court with the same “song and dance” as he did in 2006 when he said in a pre-sentence report prepared for that sentencing that while he had been addicted to crack cocaine in the past, he had changed his ways, his associations and his lifestyle, and he was able to be a law abiding individual.

[ 6 ] Much of what Mr. Phillips told the author of the 2006 pre-sentence report he has repeated to the author of the 2012 pre-sentence report. In the present circumstances where he has admitted by his pleas to trafficking in crack cocaine again in 2010 solely for personal profit and not because of personal addictions, he has told the probation officer in 2012 that he can do better and has been doing better. He has said that after 2006 he did leave the drug trade for years but returned because of financial pressures. He has written a letter to the Court and has said that ironically and notwithstanding these criminal charges, things have never been better for him and his family at the present time.

[ 7 ] He and his partner, Ms. Thin, have now been together for sixteen years. She is aware of his criminal history. She is very disapproving of it but she continues to support him so long as he does better. They have two children, a 15 year-old boy and a 6 year-old girl. Mr. Phillips is their caregiver while Ms. Thin holds down a permanent full-time job at Revenue Canada.

[ 8 ] Mr. Phillips and Ms. Thin bought their first home in Kanata a year and a half ago and that has made, Mr. Phillips said, a huge difference. No more projects, he commented. He said he found himself for the first time in his life sitting in his new home in the suburbs surrounded by people who work. It shamed him and he looked for work but his criminal record made his job-hunt very difficult. He was rejected over and over again. Finally, to his great relief and with the help of a friend, he secured a job at a nearby Best Western Hotel. For the last 7 months he has been working everyday from 4 p.m. until he is finished and he has been told that when this criminal matter is completed he will be able to return to that work.

[ 9 ] Mr. Phillips says he is committed to his family and to his work. He says he has never been in a situation like the present with the combination of an honest job, a home of his own and a family who support and need him. He feels lucky in spite of his mistakes. He has told the court that whatever happens today, he will finish his schooling at Algonquin College to learn a trade, work, look after his kids and make a better life for himself and his family.

[ 10 ] Mr. Phillips’ care of his children each day before Ms. Thin returns from her employment is complicated by the autism of their 15 year-old son. Their son has been diagnosed with autism since a very early age. He presently attends a special high school in Barrhaven for which he is picked up and driven back. He requires constant supervision at the present time to keep him safe. Mr. Phillips says his son is his biggest reason for wanting house arrest as he fears what would happen if he were not around. Their son is kept active by participating in soccer, basketball, a Special Olympics program and summer school. Ms. Thin works from 7 a.m. to 3 p.m. each Monday to Friday. If Mr. Phillips were incarcerated, she would have to quit her job and stay home with the children and particularly with their son because of his special needs. They would lose their home.

[ 11 ] Mr. Phillips has said the following in his letter to the Court:

I’ve done a lot of bad in my life but I’ve also done a lot of good. I’ve promised my family that this is the last time I’ll ever be involved with any kind of criminal activities. I’m no longer sleep walking through life. For 2 years I’ve been working and just enjoying our blessings living the Canadian dream. Our own house, 2 beautiful kids. They love living in the suburbs and so do I. The only thing I plan to do when this situation is over is get my job back, finish at Algonquin trying to get my plumber’s certificate and live happily ever after. I’ve completely changed my life around and I’m never going back to the past…This is the first time I’ve ever fought so hard for me and my family. I’ve done all the right things not because I had to but because I want to! I enjoy working; I enjoy being responsible.

Analysis

[ 12 ] The Crown’s request for a sentence in the 2½ to 3 years range is not inappropriate, generally speaking, for a repeat offender once again trafficking in crack cocaine for profit. Crack cocaine is a terrible drug. It destroys lives as Mr. Phillips knows and as Nicholas J. has eloquently expressed in R. v. Kabbouchi 2010 ONCJ 155 , (Ont. Ct. J.), at para. 10 .

[ 13 ] The need for a sentence that serves to strongly denounce these offences and deter others as well as Mr. Phillips from trafficking in crack cocaine again is obvious.

[ 14 ] In support of the recommended 2½ to 3 years range, the Crown has referred me to a number of cases where sentences for dealing in crack cocaine have been in the range of 18 months to 4 ½ years: R. v. Pitter , [2005] O.J. No. 2994 (Ont. SCJ) ; R. v. Datta , [2011] O.J. No. 2685 (Ont. SCJ) ; R. v. Mullings , [2012] O.J. No. 5028 (Ont. SCJ) ; R. v. Lucia 2010 ON 533; Kabbouchi , supra .

[ 15 ] In Pitter , after trial where 2 grams of crack cocaine had been sold as opposed to Mr. Phillips’ 15.4 grams, that accused who had an extensive criminal record was sentenced to 18 months incarceration. A conditional sentence was rejected, in part because Mr. Pitter had not complied well in the past with community supervision.

[ 16 ] In Datta , after trial involving 1 ounce of crack cocaine as opposed to Mr. Phillips’ ½ ounce, that accused, who had a related conviction just 8 months earlier and was on probation at the time of his charged offences, was sentenced to 54 months incarceration.

[ 17 ] In Mullings , after trial there was a joint position from counsel that was accepted of 3 years incarceration for offences involving 5 ounces of crack cocaine and one ounce of cocaine.

[ 18 ] In Lucia , after trial involving an unspecified amount of cocaine and evidence that the accused had been involved for some time in the trafficking of crack cocaine, the Ontario Court of Appeal upheld the sentence imposed by the trial judge of 3 years incarceration, rejecting the substitution of a conditional sentence to allow the appellant to carry on her successful retail fashion business.

[ 19 ] Defence counsel has also referred me to a number of cases in support of his request for a conditional sentence. All involve cocaine rather than crack cocaine.

[ 20 ] Sentencing is, of course, an individualized process that takes into account the circumstances of the offence and the offender and then imposes a sentence that is proportionate to the gravity of the offence and the degree of responsibility of the offender as mandated by s. 718.1 of the Criminal Code , and that is also appropriately reflective of all of the operative sentencing objectives referred to in s. 718 .

[ 21 ] In Mr. Phillips’ circumstances, the operative sentencing objectives are denunciation, deterrence both general and specific, rehabilitation and promoting a sense of responsibility and acknowledgment of harm.

[ 22 ] In terms of the Crown’s comment that Mr. Phillips is simply offering this Court the same song and dance as in 2006, there are important differences, most of them positive.

[ 23 ] The circumstances serving to aggravate sentence are Mr. Phillips’ prior and related record, the serious nature of the offence of trafficking and of crack cocaine, the appallingly bad judgment exhibited by Mr. Phillips in bringing along his then 3 year-old daughter to one of his drug transactions and exposing her to the risk of all of the well-known dangers, violence and volatility associated with the drug trade, that he was motivated by the need for money without having an underlying addiction, and the frequency of his transactions, five in total, within a forty-day period.

[ 24 ] The circumstances most strongly serving to mitigate sentence are Mr. Phillips’ successful efforts in the last two years to change his ways.

[ 25 ] In all of these circumstances, I have concluded that a sentence under 2 years would be appropriate. There is no doubt that this is a close case.

[ 26 ] I am not able, however, to ignore the family’s situation.

[ 27 ] If I were, instead, to impose a 30 months sentence on Mr. Phillips, a penitentiary sentence that I think would be able to be justified as it applies to some of the circumstances, such a sentence would certainly serve to adequately denounce Mr. Phillips’ actions and deter others who might learn from it.

[ 28 ] In considering the appropriateness of a conditional sentence, the analysis pursuant to 742.1 of the Criminal Code , is one that must first focus on the appropriate length of sentence and then, if that length is less than two years, whether a conditional sentence is available and appropriate.

[ 29 ] In the circumstances of Mr. Phillips’ plea, his successful efforts at rehabilitation and the best interests of his family, I am of the view that a sentence of 2 years less one day, though an exceptional sentence for repeat offences involving trafficking in crack cocaine, does adequately reflect the operative sentencing objectives referred to before.

[ 30 ] There is no statutory bar to the imposition of a conditional sentence on Mr. Phillips.

[ 31 ] In R. v. Kerr , 2001 ONCA 21142 , the Court of Appeal affirmed there was no presumption against conditional sentences for trafficking offences.

[ 32 ] All of the aggravating and mitigating circumstances affecting sentence balance out, in my view, to mandating a focus on the combination of a punitive sentence together with a restorative approach by way of a conditional sentence.

[ 33 ] A conditional sentence that strictly limits Mr. Phillips’ liberty for the next two years less one day, followed by the maximum probationary period of 3 years, is not a sentence that fails to punish and deter.

[ 34 ] It is for these reasons that I impose a total sentence for the offences of 2 years less one day conditional sentence, followed by 3 years of probation and also, the other Orders requested by the Crown.

[ 35 ] Mr. Phillips, please stand at this time.

[ 36 ] Your sentence for the April 6, 2010 offence is 2 years less one day incarceration that I allow you to serve in the community provided you comply with all conditions.

[ 37 ] There is a DNA Order made, requiring you to submit immediately to the taking of a bodily sample for the purposes of DNA analysis and data bank storage.

[ 38 ] There is also an Order made under s. 109 of the Criminal Code , prohibiting you for your lifetime from possessing any firearms, ammunition or any other item referred to in that section.

[ 39 ] I have already signed a Forfeiture Order with respect to items seized at the time of your arrest.

[ 40 ] The conditions of your 2 years less one day conditional sentence are the following.

[ 41 ] The other conditions of your conditional sentence order are the following:

(conditions reproduced verbatim)

[ 42 ] If you do not comply with every term of your conditional sentence order you will be arrested, kept in custody and brought before this Court and the presumption will be, should the breach be proved, that you are to spend the unexpired portion of your conditional sentence in custody.

[ 43 ] Following your completion of your conditional sentence you are placed on probation for the maximum period of 3 years.

The Hon. Madam Justice L. Ratushny

Released: June 25, 2012