ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO: CR-11-40000649-0000
DATE: 20121026
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Leishman for the Crown
- and -
DELROY ALEXANDER
Morrie Luft for Delroy Alexander
HEARD: September 28, 2012
Thorburn J .
REASONS FOR SENTENCE
I. THE CONVICTIONS
[ 1 ] Delroy Alexander was convicted by a jury of:
i. possession of a loaded prohibited firearm;
ii. possession of an ammunition magazine for a handgun capable of holding more than ten rounds of ammunition without being a holder of a licence to possess it,
iii. careless storage of the firearm;
iv. two counts of possession of cocaine for the purposes of trafficking;
v. two counts of possession of cocaine; and
vi. two counts of possession of property knowing all or part of it was obtained directly or indirectly through the commission of an offence of trafficking cocaine.
[ 2 ] At the commencement of trial, it was agreed that if Alexander were convicted on the above counts, a guilty verdict would be rendered on four additional charges. Those charges are:
i. possession of a firearm while prohibited from doing so by virtue of a court order dated November 5, 2000;
ii. possession of a firearm while prohibited from having one by virtue of a court order dated July 19, 2007;
iii. possession of ammunition while prohibited from doing so by virtue of a court order dated November 5, 2000; and
iv. possession of ammunition while prohibited from doing so by virtue of a court order dated July 19, 2007.
[ 3 ] On August 27, 2010, a loaded firearm with ammunition, drugs and money were found in an apartment that had been occupied by Alexander and Delgado-Flores the night before and in a vehicle driven by Alexander at the time of his arrest. A jury found that Alexander was in possession of all of those items. The jury further found that the cocaine was in his possession for the purpose of trafficking and that the money found on his person and in the apartment he occupied the night before was obtained as a result of trafficking drugs.
II. THE FACTS SURROUNDING THESE OFFENCES
[ 4 ] On the evening of August 26, 2010 Alexander and Delgado-Flores slept in an apartment located at N[…] Drive in Toronto. Early the next morning, several officers attended N[…] Drive in unmarked vehicles.
[ 5 ] At approximately 10:35 a.m. Alexander left the apartment. He got into the driver’s seat of a Honda vehicle registered to Delgado-Flores. Officers Long and Ross followed him. Alexander drove the vehicle to the rear of […] Street and pulled into the circular driveway. After he stopped the vehicle, a male entered the front passenger seat of the vehicle.
[ 6 ] Officer Long parked in front of Alexander and Officer Ross parked behind him. Officer Long yelled “police” and Alexander looked in Officer Long’s direction. Officer Ross approached the driver’s side of the vehicle while Officer Long approached the passenger side. Officer Ross testified that as Alexander was looking at Officer Long, he pushed a clear plastic bag that contained a white substance to the floor of the vehicle.
[ 7 ] Alexander was arrested, handcuffed and searched. Officer Ross seized Alexander’s keys to the vehicle he was driving and gave them to Officer Long. Police retrieved a cell phone and $230 from Alexander’s person. Officer Ross then went to the vehicle Alexander had been driving and retrieved the clear bag with white substance and charged Alexander with possession of cocaine for the purpose of trafficking. It is agreed that the bag contains 3.8 grams of cocaine.
[ 8 ] At approximately 11:35 a.m., Officers Frederick, Long and Pala attended N[…] Drive apartment 105 and a search warrant was executed.
[ 9 ] Upon entering the apartment, Officer Frederick noticed marijuana on a glass table at the foot of the bed and a bag of what looked like crack cocaine on the dresser in the bedroom. Baggies of cocaine and crack cocaine were found on the dresser in the Swiss watch container.
[ 10 ] Inside a safe found in the apartment, police found:
• a loaded firearm with ammunition;
• two bags with smaller amounts of cocaine and crack cocaine;
• a health card, social insurance number and birth certificate belonging to Alexander;
• a rent receipt and correspondence from Hydro addressed to Delgado-Flores;
• legal documents belonging to Alexander;
• two folded bundles of currency each of which contained $1000 in cash; and
• $305 in cash.
[ 11 ] Delgado-Flores testified that the marijuana was for her own use.
[ 12 ] A picture of Delgado-Flores and Alexander was also found in the apartment. Digital scales were found in the kitchen and the bedroom.
[ 13 ] $230 was found on Alexander’s person at the time of his arrest.
[ 14 ] The firearm was a loaded prohibited firearm. The serial number on the handgun had been removed. The gun was loaded with one bullet in the chamber and eleven more in the magazine. The gun was fully operable. Eleven other bullets were found in a glove. Several of the bullets were used in testing the gun.
III. ALEXANDER’S PAST
[ 15 ] Alexander is twenty six years old.
[ 16 ] His criminal record spans twelve years and includes numerous convictions as follows:
(a) November 27, 2000 – Uttering threat, possession of a Schedule II substance and mischief under;
(b) June 8, 2001 – Theft Under, failure to comply with (FTC) an undertaking and carrying a concealed weapon;
(c) September 26, 2002 – Break and enter and possession of property obtained by crime;
(d) March 9, 2005 – Assault;
(e) October 19, 2005 – Possession of a schedule I substance;
(f) July 19, 2007 – Possession of a prohibited firearm with ammunition, possession of a firearm or ammunition contrary to a prohibition order and possession of a schedule I substance for the purpose of trafficking;
(g) November 26, 2007 – Discharge of a firearm with intent;
(h) May 4, 2009 – Possession for the purpose of trafficking (P4P) marijuana and FTC probation; and
(i) August 22, 2009 – FTC recognizance, FTC probation, P4P cocaine and possession of cocaine.
[ 17 ] Alexander completed high school in 2008 at a learning centre.
[ 18 ] Alexander’s sister testified on his behalf at trial to the effect that he lived with her for a short period. He has some relationship with his grandmother although she asked him to leave her home when he resided with her.
[ 19 ] He has had some sporadic employment doing roofing work.
IV. THE PRINCIPLES OF SENTENCING
[ 20 ] Section 718 of the Criminal Code , R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the following objectives must be considered:
denunciation of unlawful conduct;
deterring the offender and others from committing offences;
separation of offenders from society where necessary;
rehabilitation of offenders;
reparations for harm done to victims or to the community; and
promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
[ 21 ] The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[ 22 ] A sentence should be increased or reduced to account for aggravating or mitigating circumstances relating to the offence or the offender. Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances.
[ 23 ] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. [1] Consecutive sentences may however be imposed where the offences are temporally linked but constitute invasions of different legally protected interests. [2]
[ 24 ] Where there is a sentence for multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. [3] If the total sentence is excessive the court must adjust the sentence so that the total sentence is proper. [4] This can be done either by adding the individual sentences and then adjusting accordingly [5] or by making a global sentence and calculating individual sentences from that number. [6]
[ 25 ] Sentencing ranges are useful in ensuring that the parity principle is met because they provide guidelines to trial judges who must impose similar penalties for similar offences of a similar nature involving similar offenders. [7] However, they are guidelines only.
V. THE DEFENCE POSITION
[ 26 ] Alexander’s counsel submits that a global sentence of nine and one-half years is appropriate. He suggests the appropriate sentence for possession of the loaded prohibited firearm is seven and one-half years [8] , the appropriate sentence for possession of this quantity of cocaine for the purposes of trafficking is one and one-half years, and the appropriate sentence for breach of the court orders is one year.
[ 27 ] Alexander was arrested on these charges on August 27, 2010 and has been in presentence custody since that date. Alexander must also be given credit for the 26 months he has spent in pre-sentence custody.
[ 28 ] His counsel suggests 26 months from the date of arrest to the time of sentence is an inordinately long time. Moreover, he has produced records to confirm that while Alexander was at the Toronto East Detention Centre he was triple bunked for 35 nights, he had no yard time at all for 100 days and the facility was in full or partial lock down for 21 days. He suggests therefore that Alexander should be entitled to one year of enhanced credit (over and above the 26 months he has spent in presentence custody) in view of these factors.
VI. THE CROWN POSITION
[ 29 ] The Crown submits that denunciation, deterrence and separation from society are primary concerns in this case given the volume and type of offences committed by this offender, and his pattern of reoffending.
[ 30 ] He submits that Alexander should be sentenced to nine to nine and one-half years for the firearms offences, two to two and one-half years for the drug offences and three years for breaches of the court orders. When considering the principle of totality, that figure would be reduced to twelve to thirteen years’ incarceration for these offences.
[ 31 ] Alexander should not be entitled to any enhanced credit as the trial took place well within the guidelines set out by the Supreme Court of Canada in R. v. Askov [9] . This is particularly true since the trial involved two accused.
[ 32 ] The Crown suggests Alexander should be given no enhanced credit for time spent in presentence custody as the conditions when viewed in the total context and in light of present day norms, are not egregious.
VII. SENTENCING DECISION
[ 33 ] I have considered the principles of sentencing set out in the Criminal Code and have applied those considerations to the facts in this case. I have also considered the aggravating and mitigating circumstances, Alexander’s prospects for rehabilitation, the duration and conditions of Alexander’s pre-sentence custody, and the case law that addresses the appropriate range of sentences for offences of this nature committed in similar circumstances by similar offenders.
[ 34 ] General denunciation and deterrence are of primary importance when dealing with an accused with a lengthy criminal record involving similar firearm and drug offences. Protection of the public must be safeguarded. [10] The convictions in this case involve both gun and drug related offences. Moreover, Alexander’s significant criminal record includes prior offences involving both guns and possession and trafficking cocaine. On the other hand, the firearm in this case was not in public view but was found in a safe in the apartment.
[ 35 ] Alexander chose to make no statement during the sentencing proceeding nor did his counsel address the issue of remorse. Lack of remorse is not an aggravating factor. [11] It is simply the absence of a factor which can sometimes mitigate the seriousness of an offence.
[ 36 ] N o submissions were made regarding Alexander’s prospects for rehabilitation. Moreover, there is no indication that he has taken any real steps to reflect on his past, or that he has determined to make any real changes to his lifestyle. Although he is a young man, it would seem at this stage that his prospects for rehabilitation are poor given his long history of offending, the types of offences he has committed and his seeming unwillingness to change his life.
[ 37 ] Alexander does not have the benefit of a guilty plea.
[ 38 ] Both counsel agree that in accordance with the principle that a person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed, (the Kienapple [12] principle), one term of sentence should be imposed for the firearm and ammunition related offences, one term of sentence for the drug and possession of property obtained by drug trafficking related offences, and one term of sentence for the four counts of breach of court orders.
I. The firearms and ammunition charges
[ 39 ] Alexander was found guilty of possession of a prohibited firearm with ammunition in July of 2007. Because he has a prior record of being found in possession of a prohibited firearm and ammunition, section 95 of the Criminal Code stipulates that he is subject to a maximum penalty of 10 years’ imprisonment and a mandatory minimum penalty of five years’ imprisonment. Counsel referred to several cases dealing with sentences for offenders convicted of possession of a prohibited firearm and ammunition.
[ 40 ] In the case of R. v. Brown [13] , the Ontario Court of Appeal imposed a sentence of seven years’ imprisonment for possession of a loaded restricted firearm followed by an additional year for breach of a firearms prohibition order. [14] The offender had entered a guilty plea and there was no indication he was involved in any other criminal activity at the time of his arrest. This was the third time he had been found guilty of possession of a firearm and breach of a firearms prohibition. The offender was “moving about in the community with a fully loaded lethal weapon at the ready – and doing so despite court orders prohibiting him from possessing a firearm.” [15] His criminal record consisted of 34 prior convictions.
[ 41 ] In R. v. Johnson [16] Marrocco J. at paragraph 10, imposed a sentence of 7 1/2 years for a conviction of possession of a loaded prohibited firearm where the offender had two prior convictions involving a firearm, a significant record both as a youth and as an adult, was in breach of several court orders, the offender did not plead guilty and exhibited no remorse.
[ 42 ] In R. v. Newell [17] Molloy J. at paragraph 21 imposed a sentence of 7 1/2 years on an offender found guilty of possession of a loaded prohibited weapon with three prior convictions for gun related offences. In addition he had a lengthy criminal record and in a situation where there was found to be “virtually no mitigating factors”. [18]
[ 43 ] On the basis of the cases provided to me by both the Crown and Defence (there being no cases that imposed the sentence range suggested by the Crown) and taking into account the similar facts in this case, the appropriate sentence for the firearms offences is 7 1/2 years.
II. The Drug Offences and Possession of Proceeds of Crime
[ 44 ] Counsel did not provide me with authorities to substantiate the term of sentence to be imposed for these drug related offences.
[ 45 ] In R. v. Woolcock , [19] the Ontario Court of Appeal at paragraph 15 held that the typical range of sentence for trafficking small quantities of cocaine is six months to two years with higher sentences for those who commit these offences while on probation on in contravention of court orders.
[ 46 ] In this case, I believe a sentence of two years is appropriate for the drug related offences and possession of the proceeds of crime. I have come to this determination taking into account the relatively small quantity of cocaine found and because a separate consecutive sentence is being imposed for breach of the court orders. It is therefore unnecessary to consider these aggravating factors in the context of this sentence.
III. Breach of the Court Orders
[ 47 ] I have reviewed the cases regarding breach of court orders.
[ 48 ] In R. v. Manning [20] , Epstein J. (as she then was) imposed a sentence of five years for possession of a loaded prohibited weapon and an additional sentence of one year in prison for breach of five previous prohibition orders. Similarly, in R. v. W.C.A . [21] in addition to a six and one-half year sentence of a gun related offence, the offender received a sentence of one and one-half years for breach of several prohibition orders.
[ 49 ] I believe an appropriate sentence for breach of the two court orders is a sentence of one and one-half years consecutive to the other two sentences set out above.
Sentence to be Imposed
[ 50 ] While I believe these sentences are appropriate for these specific offences when viewed in isolation, I must invoke the totality principle to determine if the global sentence is appropriate. When taking into account the fact that all of these offences took place on one occasion, I believe the appropriate global sentence is 10 years.
Deduction for Time Spent in Presentence Custody
[ 51 ] Alexander has spent 26 months in custody awaiting trial and then sentence. For 35 days he was triple bunked and for an additional 100 days he had no yard time at all. Finally for 21 days, the facility he was in was in full or partial lockdown. Crown counsel submits that while these circumstances are not ideal they are not outside the norm and therefore do not qualify for enhanced credit.
[ 52 ] One of the effects of the enactment of the Truth in Sentencing Act , S.C. 2009, c. 29 which came into force in February 2010 was to limit credit for presentence time spent in custody to a maximum of one day for each day spent in custody. However, under the heading “Exception” Section 719(3.1) of the Criminal Code provides that enhanced credit of 1.5:1 may be granted “if the circumstances justify it”. Enhanced credit is the exception not the rule although the legislation does not stipulate that the circumstances must be “special” or “extraordinary”.
[ 53 ] Alexander’s time spent triple bunked is beyond the reasonable expectation of a person awaiting trial and sentence. So is the denial of any yard time at all. As such, these exceptions to the reasonably expected norms justify an exception to the general rule of 1:1 credit for time spent in pre-sentence custody.
[ 54 ] The time spent triple bunked will be accorded credit at a rate of 1.5:1 and Alexander will be given an additional credit of one months’ time to account for the 100 days he spent without yard time and the 21 days in partial or full lockdown.
[ 55 ] Alexander is therefore entitled to credit for the 26 months he spent in presentence custody and an additional 83 days of enhanced credit. This results in total presentence credit of approximately 29 months. This shall be deducted from his ten year sentence.
[ 56 ] I do not agree that in these circumstances, the time from the date of arrest to the time of sentence has been inordinately long given that the case involves two accused and the time limits are within the limits set out by the Supreme Court of Canada in Askov . For this reason I decline to given any enhanced on this basis.
Ancillary orders
[ 57 ] Finally, there will be an order imposed to prohibit Alexander from possessing weapons for life pursuant to section 109 of the Criminal Code , a DNA order, and a forfeiture order regarding the money, firearm, ammunition, drugs and digital scales seizure during the execution of the search warrant.
Thorburn J.
Released: October 26, 2012
COURT FILE NO: CR-11-40000649-0000
DATE: 20121026
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N: HER MAJESTY THE QUEEN - and - DELROY ALEXANDER
REASONS FOR SENTENCE Thorburn J.
Released: October 26, 2012
[1] Kienapple v. R. , 1974 14 (SCC) , [1975] 1 S.C.R. 729
[2] R. v. Houle , 2008 ONCA 287 , 79 W.C.B. (2d) 64 at para. 4 .
[3] R. v. M. (C.A.) , 1996 230 (SCC) , [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer , 1983 5286 (ON CA) , [1983] O.J. No. 181 (C.A.) at para 13 .
[4] R. v. D.S.K. , 2005 SKCA 18 , [2005] S.J. No.97 ; . R. v. Hicks , 2007 NLCA 41 , [2007] N.J. No. 219
[5] R. v. Newhook 2008 NLCA 28 , [2008] N.J. No. 258 at para. 55 .
[6] R. v. Lombardo , 2008 NSCA 96 , [2008] N.S.J. No. 456 at para 25 .
[7] R. v. Stone , 1999 688 (SCC) , [1999] 2 S.C.R. 290 at para 244 .
[8] R. v. Brown , 2010 ONCA 745 , [2010] O.J. No. 4707 at para 15 . and R. v. Newell [2012] O.J. No. 4014 at para 22 .
[9] R. v. Askov 1990 45 (SCC) , [ 1990] 2 S.C.R. 1199 at para. 69 .
[10] R. v. Sturge , [2001] O.J. No. 3923 (C.A.) at para. 6 . and R. v. Popovics , [2005] O.J. No. 2456 (C.A.) at para. 7 .
[11] R. v. Ambrose 2000 ABCA 264 , 271 A.R. 164 at para. 92 .
[12] R. v. Kienapple supra note 1
[13] R. v. Brown , 2010 ONCA 745 , [2010] O.J. No. 4707 .
[14] Ibid at para 15
[15] Ibid at para 7
[16] R. v. Johnson , 2010 ONSC 3213 , [2010] O.J. No. 2327
[17] R. v. Newell , [2012] O.J. 4014
[18] Ibid at para 13
[19] R. v. Woolcock [2002] O.J. No. 4927 (C.A.)
[20] R. v. Manning [2007] O.J. No. 1205 (SC) at paras. 42 & 43
[21] R. v. W.C.A. [2010] O.J. No. 2677 at paras. 49-51 .