ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-00656
DATE: 20120921
B E T W E E N:
HER MAJESTY THE QUEEN Crown
A. Adjei, for the Crown
- and -
OSHANE RICARDO DALEY Defendant
F. Bacchus, Agent for Nyron Dwyer, for the Defendant
HEARD: September 19, 2012
REASONS FOR SENTENCE
LAUWERS J.:
[ 1 ] Mr. Daley was convicted on August 1, 2012, of trafficking in a controlled substance, cocaine, contrary to section 5(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. He was also convicted under section 354(1) (a) of the Criminal Code , R.S.C. 1985, c. C-46 of possessing property or proceeds of property, the amount being $100.00 in cash, knowing that all or part of the property or proceeds was obtained or derived directly or indirectly as a result of the commission in Canada of an offence punishable by indictment. The decision is found at R. v. Daley , 2012 ONSC 4458 , [2012] O.J. No. 3695.
[ 2 ] The matter was put over to September 19, 2012, for the purpose of obtaining a pre-sentence report.
The Facts
[ 3 ] Members of the York Region Police Service participated in an undercover operation. An officer persuaded an addict to contact her supplier to assist him in purchasing a “half ball” of crack cocaine, which weighs 1.7 grams, in exchange for which she would be permitted to “chip off” a piece for her personal use. The transaction took place and the officer paid $120.00 for the cocaine; $100.00 of the buy-money was found on Mr. Daley when he was later searched. Additional cocaine was found in bags in the toes of Mr. Daley’s shoes. The evidence supports a finding that he is a street-level dealer in crack cocaine.
[ 4 ] Mr. Daley’s personal circumstances are described in the pre-sentence report. Mr. Daley is 23 years old. He emigrated with his mother from Jamaica at a young age. When Mr. Daley was 13 or 14 years old his father moved to the United States to pursue an employment possibility and he and his sister were raised by his mother. He lived at home until these charges were laid. The pre-sentence report indicates that Mr. Daley’s mother was and is a caring and supportive parent. Mr. Daley has been living with his cousin, who has been his surety, and her four children.
[ 5 ] Mr. Daley is a high school graduate. Although he is qualified as a carpenter and is a member of the union, he has had difficulty in finding long-term carpentry jobs through the union hall so he has been working for a moving company on a sporadic basis. Mr. Daley consumes alcohol occasionally and has been using marijuana for the last three years predominantly on the weekends. The pre-sentence report notes that Mr. Daley began the use of cocaine two years ago and engages twice a month at present. He acknowledges that his cocaine use is “problematic”.
[ 6 ] According to the pre-sentence report Mr. Daley apparently does not have deep roots in the criminal community nor have his friends been involved in the criminal justice system.
Positions of Crown and Defence
[ 7 ] Under section 5 of the Controlled Drugs and Substances Act , a conviction for trafficking cocaine, (a Schedule I substance) carries with it a maximum sentence of life imprisonment. There is no minimum sentence.
[ 8 ] The Crown seeks a sentence at the low end of the range for cocaine trafficking even though the quantity trafficked is not quite at the low end of the range. The Crown submits that a fit and just sentence on the facts of this case is six months in view of the seriousness of the offence. The Crown seeks one month concurrent in relation to the possession for the proceeds of crime conviction. The Crown also seeks a DNA order and a weapons prohibition order, to which Mr. Daley consents.
[ 9 ] The defence submits that an appropriate sentence would be 12 to 18 months by way of conditional sentence, with subsequent probation. The defence proposes that a term of the conditional sentence and probation require Mr. Daley to attend for drug counselling as recommended by his probation officer.
Principles of Sentencing
[15] Section 718 of the Criminal Code sets out, among others, the following objectives of sentencing:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences; …
(d) to assist in rehabilitating offenders; …and
(f) to promote a sense of responsibility in offenders, and acknowledge the harm done to victims and to the community.
[16] Section 718.1 provides that: “A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Proportionality requires the court to examine the particular circumstances of the offence as well as of the offender such that, ultimately, the punishment fits the crime.
Mitigating and Aggravating Factors
[ 10 ] Section 718.2 obliges a court to consider whether “a sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to the offence or the offender.” It also provides that: “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
[ 11 ] I consider the following as mitigating factors:
(a) Mr. Daley is a young man;
(b) This is Mr. Daley’s first offence;
(c) The amount of crack cocaine involved in this instance was not large;
(d) Mr. Daley has a supportive family; and
(e) Mr. Daley is qualified as a carpenter and has positive economic potential.
[ 12 ] I consider a number of other factors to be aggravating:
(a) Crack cocaine is an especially addictive and destructive drug;
(b) Mr. Daley victimized a known addict to make the sale;
(c) Mr. Daley may have been engaged in the transaction for commercial profit, although he may have been engaged to feed his own drug habits;
(d) The exchange took place in a residential neighbourhood; and
(e) Mr. Daley had more cocaine on him at the time of his arrest.
The Prospect of a Conditional Sentence
[17] Section 742.1 of the Code permits a court to order that an offender serve a sentence of imprisonment of less than two years in the community, subject to strict conditions, which is known as a conditional sentence, where certain statutory prerequisites are met. Those were identified by the Supreme Court of Canada in R. v. Proulx , 2000 SCC 5 , [2000] 1 S.C.R. 61, at paragraph 46 :
(1) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
(2) The court must impose a term of imprisonment of less than two years;
(3) The safety of the community would not be endangered by the offender serving the sentence in the community; and
(4) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.
[19] I am satisfied that the first two prerequisites are met in this case. The two live issues in this case, to which I will return below, are whether there is a risk that Mr. Daley would re-offend, and thus endanger the community, and whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing.
[20] Mr. Daley is a young man with no criminal record. Accordingly, I am particularly mindful of the words of Rosenberg J.A. in R. v. Priest (1996), 30 O.R. (3d) 538, 110 C.C.C. (3d) 289 at 295 (C.A.), that “[t]he 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.” See also R. v. Stein , 15 C.C.C. (2d) 376, [1974] O.J. No. 93 at 377 (C.A.). In Priest , the court held that the primary objectives of sentencing a first offender are individual deterrence and rehabilitation and are best achieved by either a suspended sentence and probation or a very short term of imprisonment. I also am mindful of the provisions of sections 718.2(d) and (e) to the effect that an offender should not be deprived of his liberty where a less restrictive sanction may be appropriate and that all other available sanctions other than imprisonment, that are reasonable in the circumstances, should be considered.
[21] There is no presumption against conditional sentences for certain types of offences: see R. v. Proulx , supra , at paragraph 81 . Although there may be circumstances in which the need for denunciation or deterrence is so pressing that incarceration is warranted, a conditional sentence can provide significant denunciation and deterrence, particularly if sufficiently punitive conditions are imposed. A conditional sentence may be as onerous as, and perhaps even more onerous than, a jail term: see R. v. Proulx , supra , at paragraph 41 . A conditional sentence has both punitive and rehabilitative objectives.
[22] Mr. Dwyer placed heavy emphasis on Mr. Daley’s youth, the fact that this was a first offence and the fact that he has good economic prospects, and submitted that a conditional sentence would be appropriate. He referred to a few cases on conditional sentences. In R. v. Kerr (2001), 153 O.A.C. 159, [2001] O.J. No. 5085, the Court of Appeal imposed a conditional sentence of 18 months in substitution for the original sentence of 18 months incarceration on convictions for three counts of trafficking in heroin and one count of improperly storing a firearm. The pre-sentence report identified the appellant as a suitable candidate for community supervision because he had no previous record, he had cooperated and appeared to appreciate the seriousness of the situation, he had a supportive family and he worked full-time. The amount of drugs involved was small. His involvement with heroin started as a user to alleviate pain from an operation. Evidence from his physician was that incarceration would negate the progress that the appellant had made. Abella J.A. noted at paragraph 13 that there is no presumption against a conditional sentence for trafficking offences.
[23] In R. v. Imoro , 2011 ONSC 1445 , [2011] O.J. No. 996, Spies J. imposed a conditional sentence of two years less a day plus 12 months probation for two counts of trafficking in cocaine, two counts of possession of proceeds of crime from trafficking, one count of possession of cocaine for the purpose of trafficking and one count of marijuana for the purposes of trafficking. The Crown had sought a sentence of 15 months incarceration. Spies J. explained her decision to impose a conditional sentence:
67 I find this to be a close and difficult case as to whether or not a conditional sentence should be ordered. The most compelling factors in favour of a conditional sentence are the change in circumstances in Mr. Imoro's personal life and the fact that he has not had any conflict with the law for the past three years. Hopefully he has learned his lesson and a sentence that would permit Mr. Imoro to continue to be employed and father his children will further his rehabilitation. Although there is no evidence that a jail term would jeopardize his employment, it would certainly remove him from his family at a critical time. The offences, however, are serious and I am concerned about the offences committed while on bail. However, the offences before me occurred before his conviction in March 2008 for possession of marijuana for the purpose of trafficking.
[24] In R. v. Letemplier , 2012 ONSC 4125 , [2012] O.J. No. 3348, Allen J. sentenced the accused to a 12 month conditional sentence and six months probation for trafficking in crack cocaine, possession of crack cocaine for the purpose of trafficking and possession of proceeds obtained from crime. The amount of crack cocaine found was 0.18 grams and $20 in police buy-money. The Crown sought a nine month custodial sentence. Allen J. explained the conditional sentence:
43 Before the current charges, he was last involved with the criminal justice system six years ago. He has not re-offended since his arrest on the offences charged. Although he had a drug problem during his earlier years, he underwent several drug treatment programs up to 2004, and the evidence is that he was able to overcome his drug and heroin addiction. The offences charged are the only drug related offences he has faced. He trafficked in a small quantity of drugs and there is no indication he is involved in a drug trafficking commercial enterprise.
44 However, the aggravating circumstances must be accounted for in tailoring the appropriate sentence.
45 I cannot ignore that Mr. Letemplier travelled to sell a dangerously addictive drug in a vulnerable neighbourhood plagued by street level drug trafficking. Further, Mr. Letemplier admits he used crack the night of his arrest, although he suggests it was a one-time occurrence. I am not confident of this due to his secretiveness. These circumstances call for denunciation, deterrence and rehabilitation. I think these objectives can be met without a custodial sentence.
[25] The Crown referred the court to R. v. Bui, [2011] O.J. No. 5429 .
[26] Taken together, the cases referred to by counsel do set the range of possibilities. I must, however, make a determination of the fit sentence for Mr. Daley in his unique personal circumstances.
Reasons
[27] As Chief Justice Lamer stated in R. v. M. (C.A.) , [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 227 at paragraph 92:
Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.
[28] In R. v. Woolcock , [2002] O.J. No. 4927 , the Court of Appeal set a range of sentences for this type of offence at six months to two years less a day. Cases at the high end of the range would involve larger quantities of narcotics or offences committed while the accused was on probation for a similar offence. This case involves the trafficking in a small amount of crack cocaine. As the Court of Appeal observed in R. v. Woolcock , “crack cocaine is an extremely dangerous and insidious drug with potential to cause a great date of harm to individuals and to society.” This is a serious offence, even though the quantity of crack involved was small. I am, however, persuaded that there are reasons in this case to stray outside of that defined range.
[29] As the Court of Appeal has consistently stressed, ranges exist to promote parity, one of the sentencing objectives identified by the Criminal Code . Aggravating and/or mitigating circumstances bear on not only where, within an established range, a sentence appropriately lies, but indeed whether it lies altogether within or outside of that range. Sentencing truly is an individualized process and one size does not fit all: see most recently R. v. Berry , 2012 ONCA 621 .
[30] I carefully observed Mr. Daley during the trial and during the sentencing hearing. It bodes well that Mr. Daley does not exhibit any trace of defiance. I agree with Mr. Dwyer on the importance of rehabilitation. Mr. Daley is a young, first time offender. He has a supportive family, a high school education, and a trade. Mr. Daley has a very reasonable prospect of turning his life around. I note that he was involved in dealing relatively small amounts of cocaine and his network of friends consists of individuals not otherwise involved in the criminal justice system. Ultimately, it is my view that a sentence a little below the typical low end of the range for this type of offence is warranted.
[31] That said, two considerations drive me to the conclusion that a period of jail time is necessary. The first is that Mr. Daley needs, in my view, a short but sharp experience to persuade him that he must turn his life around. In my view a conditional sentence would not communicate sufficiently to him the seriousness of the offence and the need for him to get serious about pursuing a straight and productive life.
[32] The second is this: before imposing a conditional sentence, I must find that the safety of the community would not be at risk if Mr. Daley were to serve his sentence in the community. Under s. 742.1, the safety of the community is a factor the court must consider in the context of conditional sentences. To decide the community safety issue, the court must look at, amongst other things, the risk of re-offending, not just relating to the offence convicted of, but in relation to any criminal activity: see R. v. Proulx , supra . If the judge finds that there is a real risk of re-offence, incarceration should be imposed.
[33] Mr. Daley has not pursued the type of therapy necessary to address the real underlying issues he faces. If Mr. Daley were to remain in the community, more or less in his ordinary routine, I am afraid that he might well re-offend by using drugs and by selling them. He is in grave danger of falling into a pattern of addiction and persistent criminality. I believe the risk of re-offending at this moment is real.
[34] Furthermore, I am not satisfied that the concept of rehabilitation should be given precedence over denunciation and deterrence, in view of the seriousness of the crime and Mr. Daley’s personal circumstances.
[35] In all the circumstances, I am of the opinion that a fit and just sentence for Mr. Daley is four months incarceration followed by eighteen months probation.
Final Disposition
[34] Mr. Daley, would you please stand.
[35] With respect to the conviction for trafficking in cocaine to the undercover officer, I impose a sentence of four months, to be followed by a probation order for the period of eighteen months; and with respect to the conviction for possessing property or proceeds of crime, I impose a sentence of three months to be served concurrently.
[36] The terms of that probation order are that:
(i) You keep the peace and be of good behavior;
(ii) You appear before the court when required to do so;
(iii) You will notify the court or probation officer in advance of any change of name or address;
(iv) You will promptly notify the court or probation officer of any change of employment or occupation;
(v) You will report within two working days from your release from jail, in person, to a probation officer as directed and thereafter be under the supervision of a probation officer or person authorized by the probation officer to assist in your supervision;
(vi) You will report at such times in such places as such person may require; and
(vii) While I cannot require you to take treatment or counselling, it is my strong recommendation that you attend and actively participate in a rehabilitative program for drug abuse as may be recommended by your probation officer.
[36] In addition, there will be a mandatory weapons prohibition order pursuant to section 109(1) (c) of the Criminal Code for ten years.
[37] I also make a DNA order pursuant to section 487.051(1) authorizing the taking of a DNA sample.
Justice P.D. Lauwers
Released: September 21, 2012