ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-G1056
DATE: 2013-05-31
B E T W E E N:
HER MAJESTY THE QUEEN
J. MacFarlane, for the Crown
- and -
PHILLIP FRED McGUFFIE
N. Calvino, for the Defendant.
Defendant
HEARD: May 27, 2013
REASONS FOR SENTENCE
T.D. RAY J.
1. Overview:
[1] The defendant was convicted of possession for the purpose of trafficking 30.2 grams of crack cocaine contrary to section 5(3)(a) of the Controlled Drugs and Substances Act, (CDSA) and 118.5 grams of cocaine contrary to section 5(3)(a) CDSA, following his arrest outside a bar on Elgin St, Ottawa on December, 18, 2011 (2013 ONSC 2097). He was also convicted of three counts of breach of orders in contravention of section 145(3) of the Criminal Code of Canada (CCC), and one count of breach of probation in contravention of section 733.1(1) CCC.
2. The Facts:
(a) Circumstances of the Offence
[2] The defendant had been part of a group in a bar in Ottawa which had been observed by the bar staff and management to have had a gun. The police were called. Several members of the group were searched in an effort to locate the gun. The defendant did not cooperate as the other members of the group did, and attempted to leave. He was followed by a police officer, detained and searched. He was found to have 118.5 grams of cocaine. The defendant lied about his identity and was generally uncooperative. He was taken to the police station and subjected to a thorough search. Sewn into his boxers and also secreted between his buttocks was found 30.2 grams of crack cocaine. During the search, which he physically resisted, the defendant was argumentative and mouthy.
[3] The value of the drugs was between $3,000 and $12,000.
[4] During the entire interaction, the police officer committed a number of egregious breaches of the defendant’s rights which are detailed in my reasons for decision.
[5] The defendant was in breach of the probation order of Maisonneuve, J., dated January 25, 2011, that he keep the peace and be of good behaviour.
[6] He was also in breach of the bail conditions in his recognizance of September 2, 2011 that he abstain from alcohol, comply with house arrest, abstain from drugs, and keep the peace and be of good behaviour.
(b) Circumstances of the Offender
[7] The defendant is a 21 year old repeat offender who gave information to the supervisor which was seriously at odds with court file information. He is described as having a prior official youth/adult criminal record that includes a prior trafficking offence as well as a violent offence. The supervisor notes that in discussing the present offences, the defendant had expressed little regret or remorse. He also noted that the defendant completed limited schooling and experienced little employment. The report also observes that the defendant abused drugs and alcohol since his teens and appears to have espoused a generally unmotivated attitude, maintaining company with negative peers, especially in the past couple of years prior to the arrest for the present offences. While he is noted as being interested in moving in with his mother, because of previous disciplinary issues, she appears less than enthusiastic. She says she has health issues that would prevent him living with her.
[8] The defendant’s record includes convictions as a youth – robbery with a firearm, disguise with intent, and failure to comply in June 2008; and false messages in July, 2008. As an adult, his convictions included two counts of trafficking and obstructing a police officer in January 2011; and two counts of failure to comply with a recognizance in June, 2011. For the adult offences, he was sentenced to five months plus 12 months probation; and 37 days jail respectively. In January, 2012, he was sentenced to one year probation, and one day in jail following 30 days pre-sentence custody for assault with a weapon, fabrication, and breaking and entering.
[9] He has a girl friend now who is a good influence on him. The defendant’s mother has said she will provide emotional support. He has said he would like to train to be a cook.
[10] At the conclusion of submissions, the defendant told me that while in jail, he has thought a lot about what he has done. He said “I know I went down a bad path and know I ruined people’s lives. I have been sitting in jail thinking that I am not going anywhere unless I change”. The defendant’s mother was in court. He has been in custody for 13 months.
(c) Impact on the Victim and/or Community
[11] Cocaine and crack cocaine are a scourge on our society. There are no redeeming benefits. To the contrary, those drugs are at the root of a good deal of the criminal activity in the community. The trafficking in cocaine and crack cocaine cannot be tolerated. Those who profit from these drugs must be condemned in the most explicit terms.
3. Legal Parameters:
[12] The maximum penalty for a conviction under section 5(3)(a) CDSA is life imprisonment. Since this offence was committed prior to the amending legislation, there is no minimum sentence.
[13] Were the amended legislation to apply, he would be facing a two year minimum sentence.
[14] The sentences imposed for the breaches should be concurrent to the sentence on the possession for trafficking.
4. Positions of Crown and Defence:
[15] The Crown’s position is that the appropriate sentence is three to four years less a deduction of three to six months in recognition of the police misconduct, and credit for pre-sentence custody of 13 months, a mandatory life weapons ban, and a DNA order.
[16] The defendant agrees that the usual range is two to five years but contends that in this case, the appropriate starting point is a range of two to three years less a reduction for the police misconduct, and less a credit of 1.5 to 1 for his presentence custody of 13 months – down to a sentence of time served. The defendant says a DNA order is not appropriate because of his young age and the absence of violent conduct.
5. Case Law:
[17] I was referred to a number of authorities as follows:
a) R. v. Migalski, [1999] O.J. No. 1235 (ONCA) that the usual penalty for 13.5 oz of cocaine is a penitentiary term.
b) R. v. Dinh 2012 ONSC 1016 (SCJ) Usual range 5 to 8 years, but police misconduct and plea of guilty – conditional sentence.
c) R. v. Okash 2010 ONCJ 93 (Ont. Ct.) young offender facing first penitentiary term must be no longer than necessary.
d) R. v. Lecompte 2012 ONSC 2170 usual term for larger amount of cocaine in excess of two years.
e) R. v. Rebello 2010 ONCJ 43. 13.5 grams of cocaine, guilty plea, and strong references- 2 years less a day.
f) R. v. Morris 2013 ONCA 223 @ paragraph 15-16, and R. v. Morris, 2011 ONSC 5206 – Judge may refuse enhanced credit where detention not mandatory but in analogous circumstance.
g) R. v. Ebanks 2012 ONSC 5002. Absent police misconduct, no record, .5 kilo cocaine, favourable PSR, and young – 2.5 years. Reduction by 6 months because of the police misconduct of a second strip search.
6. Mitigating and Aggravating Factors:
[18] Conviction of possession of crack cocaine and cocaine for the purpose of trafficking is itself an aggravating factor, as is the defendant’s breach of a probation order which was in effect at the time of his arrest.
[19] It is not an aggravating factor that the defendant failed to plead guilty. In fact, a plea of not guilty was the only way he could bring before the court the several Charter breaches. I do note that the defendant did not delay the trial. In fact, an agreed statement was filed which shortened the trial significantly so that the only witnesses were those related to the Charter breaches. That merits acknowledgement, and some weight as a mitigating factor.
[20] The defendant’s youth is a mitigating factor.
[21] The misconduct of the police officer, during and following his arrest as described in my decision, may also be treated as a mitigating factor.[^1] The six separate breaches were egregious. I do note however, that there was no evidence of a problem of systemic issues by the Ottawa police. It might have been helpful at the sentencing hearing stage to have learned whether the police officer in question had been disciplined for his misconduct. In a proper case, that kind of evidence might have demonstrated that the deterrence effect on the police officer in question was sufficient so as to give less weight as a mitigating factor to the police officer’s breaches.
[22] It is an aggravating factor that the defendant was on recognizance and on probation at the time of these offences. In other words, the breaches, in and of themselves, are notice that he cannot be trusted.
7. Principles of Sentencing:
[23] The fundamental purpose of sentencing is set out in section 718 of the Criminal Code of Canada. Its objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations, promotion of a sense of responsibility in the offender and acknowledgement of the harm done to the victims and to the community.
[24] I am also guided by section 10(1) of the CDSA which states:
“Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an 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.”
[25] A sentence must be proportionate to the gravity of the offence and the moral blameworthiness of the offender. Consideration must be given to similar sentences for similar offenders for similar offences in similar circumstances.[^2]
[26] The process of analysis requires that the offence first be placed in a category. Secondly, a range of sentences is identified for that category through reference to texts and decisions. Lastly, the sentence is placed at the appropriate point according to all of the circumstances.
8. Reasons:
[27] The defendant is 21 years of age, is not in school and has no job. He has a supportive mother and sister, but his mother finds that he would be too much for her to handle. From that, I conclude that he is not much of a son. While she has health issues, she does not see him as a help – but a hindrance. He has chosen the path that he is on. His record demonstrates a virtually continuous life style of illegal activity. The only bright spot are his comments to me that perhaps he has some insight – and perhaps rehabilitation is a worthwhile goal. Further criminal activity will invite a long penitentiary term, primarily for specific deterrence and for the protection of the public. The only way I can be sure that he will curtail his life style is if he is in jail. At his young age, I must very carefully weigh that option. There are other sentencing principles that I must consider besides his record and the circumstances of this offence.
[28] The principle factors in this case are specific and general deterrence. The defendant is young. He must ‘get it’ that he has to change his life style. Otherwise, he will shortly face a significant penitentiary term.
[29] I don’t accept that increased credit should be granted for the defendant’s pre-trial custody beyond one to one.[^3] There are no exceptional or pressing reasons before me. He was not working and was not going to school prior to his arrest. I don’t see that his incarceration diminished his opportunities to any extent. In any event, while not mandatory, the probation order and recognizance which were in force at the time of his arrest made it virtually impossible that he not remain in custody.
[30] I consider the mitigating and aggravating factors to essentially cancel each other out, except for the Charter breaches. Credit of nine months will be given for the police misconduct. A further credit for pre-sentence custody of 399 days brings the total credit to 489 days. The proper sentence in this case, before the credits, is 30 months, so that the sentence to be imposed is 7 months, 21 days.
[31] Probation of 24 months is to be imposed at the conclusion of his sentence, the terms to include the standard non-association and reporting provisions. The non-association order is to except school and work since the defendant has indicated some interest in schooling or obtaining employment.
9. Ancillary Orders:
[32] A mandatory life weapons ban and a DNA order.
10. Final Decision
[33] The defendant is sentenced to 7 months, 21 days followed by 24 months probation on Count #1.
[34] Count #2, 7 months, 21 days concurrent to Count #1.
[35] Count #7, 6 months concurrent to Count#1.
[36] Count #8, 6 months concurrent to Count #1,
[37] Count #9, 6 months concurrent to Count #1,
[38] Count #11, 6 months concurrent to Count #1.
[39] The ancillary orders are to include a DNA order and a lifetime weapons ban.
Honourable Justice Timothy Ray
Released: May 31, 2013
COURT FILE NO.: 11-G1056
DATE: 2013-05-31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
PHILLIP FRED McGUFFIE
Defendant
REASONS FOR SENTENCE
Honourable Justice Timothy Ray
Released: May 31, 2013
[^1]: R. V. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 (S.C.C) paragraph 55
[^2]: R. V. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 @ para. 37.
[^3]: R. V. Summers 2013 ONCA 147 @ para. 117