Overview

[1] Tiggana Pinnock was charged with two counts of trafficking in crack cocaine, one count of possession of the proceeds of crime, and one count of possession of cocaine for the purposes of trafficking, all for offences having allegedly occurred between January 10 and 12, 2011. On April 19, 2012, he was found guilty of two counts, but the jury was unable to reach verdicts on counts one and four. Given that, Tiggana Pinnock was convicted only on counts two and three of the indictment, and so he must now be sentenced for those two offences.

Circumstances of the Offences

[2] The charges arise out of two sales of a small quantity of crack cocaine allegedly made by Tiggana Pinnock to an undercover police officer, the first on January 10, 2011, and the second on January 12, 2011. Those sales took place in vehicles in which Mr. Pinnock was a passenger on January 10, and the driver on January 12. Police made a conscious decision not to arrest Mr. Pinnock after the first sale, but to instead entice him into participating in a second sale.

[3] During the course of that second sale, the evidence showed that the undercover police officer delivered $120 to Mr. Pinnock in return for a small piece of crack cocaine, known as "half an eight ball". The delivery of those monies informs the count of possession of proceeds of crime.

[4] The final charge, possession of crack cocaine for the purposes of trafficking, arose out of evidence from the undercover police officer relating to what allegedly occurred after the sale took place on January 12, 2011 in the vehicle which Tiggana Pinnock was driving, and after the officer signaled that the deal was done and that it was time for a takedown. The Officer testified that as police started to descend on the vehicle, Tiggana Pinnock handed a larger bag of crack cocaine to the passenger in the vehicle, told him to hide it, and the passenger dropped that bag behind him on the rear floor of the passenger side of the vehicle. The police found it there moments later.

[5] As noted, these charges were tried before a jury but the jury only reached a partial verdict. After almost 3 days of deliberations, the jury found Tiggana Pinnock guilty of the second trafficking charge on January 12, 2011 and guilty of possession of proceeds obtained by crime from the transaction on January 12, 2011. However, despite my exhortation delivered to them the prior evening when they first communicated that they were at a partial impasse, the jury was unable to reach verdicts on the first charge of trafficking and on the charge of possession of crack cocaine for the purposes of trafficking.

[6] Given the evidence, it is perplexing that the jury reached this conclusion. Nonetheless, given that the accused testified and that I instructed the jury on the test to be applied as stipulated in Regina v. W. (D.), the verdicts indicate, at a minimum, that Tiggana Pinnock’s evidence was not believed and that the jury concluded that the Crown had met the burden of proving counts two and three beyond a reasonable doubt, but that they were deadlocked on whether the Crown had satisfied its evidential burden of proving counts one and four.

[7] Beyond that it is difficult to determine what findings the jury may have made during the course of its deliberations. At a minimum, given these verdicts, plainly the jury must have found factually that (i) a transaction took place between the undercover police officer and Tiggana Pinnock in the vehicle on January 12, 2011 in which Mr. Pinnock received $120 in cash, and delivered a small piece of crack cocaine to the undercover officer, and (ii) that is a result of that transaction, Tiggana Pinnock was in possession of proceeds obtained from the commission of an indictable offence in Canada.

Circumstances of the Offender

[8] Tiggana Pinnock is 30 years old. He lives at home with his mother. He has lived in that family home for his entire life. His mother showed her support of the offender by attended much of the court proceedings in this case. Before his arrest, Mr. Pinnock had been working but he was also in a program of training in order to become a certified or designated personal athletic trainer. He wants to continue with that once he has served his sentence.

[9] The offender also now has a partner who supports him, and continues to support him notwithstanding these circumstances. As noted, he lived with his mother but his brother also lives there. Both his mother and his brother are currently receiving Ontario disability payments. Mr. Pinnock was an important person to assist them in their daily tasks. There was also evidence that Mr. Pinnock had worked as an assistant in a landscaping business before these offences arose, and there was also some inferential evidence that he had been involved in a scrap metal business with another friend for a period of time.

Legal Parameters:

Positions of the Crown and the Defence:

[10] The Crown seeks a sentence of 12 to 15 months in jail plus a lifetime section 109 firearms possession prohibition order and a DNA order. The Crown argues that a sentence of that duration will address the predominant sentencing considerations that she says apply here, namely denunciation, general and specific deterrence, and protection of the public. Those are the fundamental objectives which she claims weigh most heavily on this sentencing.

[11] The Crown notes that the prohibited substance is crack cocaine, a particularly insidious substance whose extensive deleterious effects on Canadian society have been well noted in many Canadian decisions including those of our Court of Appeal in cases such as R. v. Hamilton, 2004 5549 (O.C.A.) and the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982.

[12] The Crown also says that there are a number of aggravating factors present here that require consideration, including Mr. Pinnock’s background associated with violence. She says that against the background of those aggravating factors, the Crown’s request of a sentence of 12 to 15 months incarceration is appropriate and not disproportionate and that it would fulfill the fundamental sentencing objectives set out in section 718 of the Criminal Code.

[13] Counsel for the defence says that those objectives can be and are satisfied with a sentence that is materially shorter than that sought by the Crown. In Ms. Scott’s view, a sentence in the order of 3 to 6 months in jail is appropriate in these circumstances, possibly followed by up to one year of probation. She claims to rely for that position principally on the decision of the Court of Appeal in R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), which in her view is most closely akin to the circumstances of Mr. Pinnock in this case, of the six cases put forward by the Crown on the sentencing hearing. At its essence, the defence takes the position that the case law advanced by the Crown all refers to and contemplates circumstances that are distinguishable because they are materially more serious, involving the possession of materially larger quantities of prohibited substances, in this case crack cocaine, and with circumstances that are more egregious, thus commanding lengthier sentences that would be appropriate in this case.

Case Law:

[14] In addition to the decisions in Hamilton and Pushpanathan referenced above, the Crown referred to four other authorities: R. v. Woolcock, above, at paras 1-8, and also R. v. Bryan, 2003 24337 (ON CA), [2003] O.J. No. 1960 (C.A.), R. v. Harrison, [2009] ONCA 386 at paras. 2-5, and R. v. Mangal, 2000 5707 (ON CA), [2000] O.J. No. 1373 at paras. 1-6 and 17-24. Counsel for the defence did not present the court with any case law authority but chose instead to make her presentation entirely on the basis of distinguishing the application of the cases presented by the Crown.

[15] In Bryan, the age of the offender was unknown but he was convicted of possession for the purpose of trafficking in the amount of 2.9 g of crack cocaine. The proceeds of crime in that case amounted to $1,500. He had a prior criminal record but its extent and relation to the offence before the court was unspecified. He was sentenced after a trial. He received a sentence of 12 months in jail.

[16] In Harrison, again the age of the offender was not known but she was a first-time offender who had been convicted of possession for the purposes of trafficking in the amount of 8.9 g of crack cocaine. She had breached her bail conditions. She was sentenced after trial to a sentence of 12 months in jail less 3.5 months in respect of presentence custody. The court rejected that a conditional sentence could be a realistic possibility in those circumstances.

[17] In Mangal, the offender was 20 years old at the time of the offence. He was a first-time offender convicted of possession of 9.16 g of crack cocaine for the purposes of trafficking. Unlike the two earlier cases, or this case, the offender pleaded guilty after failing to keep the evidence out on a Charter motion. Once again, a conditional sentence was rejected as inappropriate and the court imposed a sentence of 12 months in jail.

[18] Finally, in Woolcock, quite different from the other cases, the offender was 53 years old, had two related prior convictions and had served 30 days jail in 1998. He was convicted after a trial of possession for the purpose of trafficking 5.3 g of crack cocaine and of being in possession of proceeds of crime totalling $926 Canadian and $60 in United States funds. Once again, the possibility of a conditional sentence was rejected and the Court of Appeal imposed a jail term of 15 months following an appeal against the sentence imposed by the trial judge of two years less a day.

Mitigating and Aggravating Factors

[19] The Crown takes the position that there are a number of aggravating factors to consider in this case relative to sentence. These include that the substance is crack cocaine, but in the Crown submissions Mr. Pinnock is not a crack cocaine user and thus his conduct and motive is entirely based on greed and the potential for commercial gain. Ms. Bellerose says that Mr. Pinnock is a full participant in these transactions, both in acquiring the crack cocaine, in arranging sales and in completing those sales to willing purchasers. The Crown also says that Mr. Pinnock’s criminal record shows a prior conviction of possession of marijuana for the purposes of trafficking. In fairness, however, this is the first occasion when Mr. Pinnock has been arrested and convicted of trafficking in cocaine, and while possession for the purposes of trafficking is implicit in the trafficking offence itself, he has never been separately convicted of that offence. The jury was deadlocked on that charge in this case.

[20] Tiggana Pinnock’s criminal record is not long but neither is it insignificant. He was convicted in March 2006 of discharging a firearm with intent and of possession of a loaded prohibited or restricted firearm. He was sentenced to seven years, four years imprisonment on top of three years of pre-sentence custody for discharging the firearm with intent, and a one-year concurrent sentence plus 3-years of presentence custody for possession of the loaded prohibited or restricted firearm. In addition, a mandatory prohibition order was made under section 109.

[21] Then, while the offender was an inmate in Millhaven penitentiary serving that sentence, he was also convicted in November 2008 of possession of marijuana for the purposes of trafficking. Defence counsel objected to the Crown producing a general occurrence report obtained from the Kingston Police Service, on the basis that the Crown should have obtained a transcript from the sentencing hearing, but I accept that there was inadequate time between the conviction and the sentencing hearing to permit that transcript to be obtained. It will suffice for purposes of this sentencing hearing, for what it’s worth, to simply note that occurrence report indicates that he was apprehended and the drugs were seized from him at Kingston General Hospital, where they were recovered from the offender’s rectum. The amount in question according to the occurrence report was 79 g of marijuana, allegedly contained in a number of smaller packages.

[22] The Crown regards Mr. Pinnock’s conviction for possession of marijuana for the purposes of trafficking while he was incarcerated to be a significantly aggravating factor, showing criminal intent even while incarcerated on another offence. Moreover, the fact that he was incarcerated for firearms possession offences, and for intentionally discharging a firearm at that time, shows that he is not a stranger to violence. As the case law shows, the combination of firearms and drugs is a deadly one. While the Crown does not suggest that this is the worst of offenders, she is plainly taking the position that these are aggravating factors which support her position that a sentence in the range of 12 to 15 months in jail is appropriate in the circumstances.

[23] Finally, the Crown notes in her sentencing brief that Mr. Pinnock is not entitled to the benefit of an early guilty plea given that his conviction only arose following trial, but while this may be true, neither is it an aggravating factor that he chose to avail himself of his constitutional rights to a jury trial rather than choosing to plead guilty. It is true the plea of guilty is a mitigating factor on sentence, but I reminded the Crown that the corollary is not true.

[24] Defence counsel suggests that little weight should be put on Mr. Pinnock’s prior record on the basis that it is somewhat dated. Instead, given that she claims that he had started to turn himself around just before these charges arose (even though I note that subsequent drug charges are also pending once this case is completed) she argues that I should ignore the earlier violent offence, ignore the offence committed while incarcerated on the gun offences, and that instead I should be placing emphasis on the offender’s prospects for rehabilitation. She says that that there is no indication in the evidence before the court that he cannot be rehabilitated, and as such, that is a factor that the court must take into account. I accept that rehabilitation is one important factor, but it should not be the focus of this sentencing while turning a blind eye to the earlier violent offences as an aggravating sentencing matter.

[25] The mitigating factors that are present in this case are not extensive but they are important. While Mr. Pinnock did get a bad start with his firearms offences in 2006, and with his first period of incarceration spent in a federal penitentiary, during which he was convicted of another drug trafficking related offence, he does not have the kind of extensive criminal record that must be regarded as a seriously aggravating factor, and there is no indication whatsoever of a connection between the 2006 firearms offences and this most recent offence where he is convicted simply of selling a relatively small quantity of crack cocaine and possession of $120, derived from the commission of that indictable offence in Canada.

[26] More importantly, mitigating circumstances include the fact that members of his family were here to support him throughout this trial, that he has always lived in his family's home with his mother and his brother and would continue to do so following release, that he now has the support of a partner who has continued to stand beside him notwithstanding these charges, and that he has an ambition to complete training in order to receive a certificate of designation as a personal trainer, training that would permit him to leave behind the path of criminality that he has followed in the past few years, and embark instead, still at a young age, on the other path as a lawful and law-abiding Canadian citizen.

[27] It is also a mitigating factor in the circumstances of this case that the quantity of crack cocaine on which Mr. Pinnock was convicted of trafficking by the jury was a very small quantity, 1.06 g, an amount that was described in the evidence as being half of the size of a baby fingernail. While it is true that he was also charged with possession of a substantially greater amount of crack cocaine for the purposes of trafficking, more than 6 g, he was not convicted of that offence. The jury was deadlocked on that offence. As such, it cannot be taken into account as a factor on sentencing. It is simply not relevant as a factual matter.

[28] That leaves the court confronted by a first-time trafficker in crack cocaine, with some criminal antecedents, antecedents that are not insignificant, but at a young age, with no evidence that he cannot be rehabilitated, and with a realistic prospect of rehabilitation lying ahead of him should he choose to proceed in that direction.

Principles of Sentencing

[29] Section 718 of the Criminal Code states the fundamental purposes of sentencing and lists its underlying objectives. The fundamental purpose of any sentence is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by the imposition of just and appropriate sanctions. Among the specific objectives listed in section 718 of the Criminal Code, several are relevant here. They are to denounce unlawful conduct, to deter the offender and others from committing offences and to separate offenders from society where necessary. In a case such as this, general deterrence to others is paramount but specific deterrence of this offender also occupies a prominent place in deciding what sentence to impose.

[30] However, section 718.1 of the Code requires that the sentence be proportionate to the offence and the degree of the offender's responsibility. An offender is not to be deprived of his or her liberty if less restrictive sanctions may be appropriate in the circumstances of the case. All available sanctions, other than imprisonment, that are reasonable in the circumstances must generally be considered for all offenders. In R. v. Hamilton, however, Hill J. observed that offences such as these are not to be punished by conditional sentences.

[31] With the enormous damage caused by drugs to Canadian society, the need for general deterrence and specific deterrence of the offender necessarily calls for a custodial sentence. That is a proposition that is endorsed by the Court of Appeal of this province.

I also endorse this sentiment in the circumstances of this case and note that neither counsel suggests that the objectives of sentencing can be achieved in a case such as this through the imposition of a non-custodial sentence.

[32] When looking at the sentence of an accused person, as the Supreme Court of Canada observed in R. v. Nasogaluak (2010) S.C.C. (6th), courts must also strive to ensure that the sentence imposed respects the principles of proportionality and consistency of sentences for similar offences:

The principle of proportionality is central to the sentencing process set out in the Criminal Code and it requires that a sentence must speak out against the offence, but may not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence. The determination of a fit sentence is, subject to some specific statutory rules, an individualized process that requires the judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences.

[33] Finally, even if the Crown advocates a position that has little room for any prospect of rehabilitation, I am of the view that it is too early in this offender’s criminal career to relegate him to the ever growing group of offenders who have been offered and effectively spurned offers of the prospect of rehabilitation. I acknowledge that there are pending charges against him that are drug related, perhaps similar to these charges, but that does not to my mind mean that Mr. Pinnock may not already have concluded, reinforced by the salutary effects of pre-sentence incarceration, or yet conclude from that experience, that continuing on a criminally oriented path is a pointless road to follow that will only serve to keep him removed from his mother and brother, from the woman who is now his partner and willing to take a chance on him, and from his own hopes of obtaining a personal trainer’s designation and taking the other path from this point forward.

Reasons

[34] Turning to the reasons for the sentence that I have determined is appropriate in this case, they can be stated briefly. At its simplest, I agree generally with the position taken by counsel for the defence that the range of sentences sought by the Crown as supported by the case law she presented would be appropriate in circumstances where the quantity of drugs sold or found in the possession of the offender was substantially greater than was the case here. For example, had the jury not been deadlocked on count four of possession of some 6 g of crack cocaine for the purposes of trafficking, certainly the range of sentence sought by Ms. Bellerose would have been appropriate, and indeed, taking account of the aggravating aspects of Mr. Pinnock's background, and his criminal record as previously discussed, I would have inclined towards a sentence in the 15 months range sought by the Crown as the top-end for this offense, or been inclined to an even higher sentence. But the fact is, as Ms. Scott correctly observes, in this case Mr. Pinnock benefits from the deadlock that prevented the jury from reaching verdicts on counts one and four. As such, while the addition of convictions for those two offenses would have significantly aggravated the circumstances, and called for a sentence in the 15 month plus range as sought by the Crown, the absence of convictions for those two offenses, combined with the relatively small quantity of crack cocaine involved, suggests that the Crowns suggested range of sentence is somewhat in excess of what can reasonably be considered to be appropriate in the circumstances, even after taking account of the aggravating features of Mr. Pinnock’s background.

[35] Turning to the position of the defence on the other hand, the 3 to 6 month sentence advocated by counsel for the defence is plainly inadequate in my estimation to satisfy the sentencing objectives outlined above that are present on the sentencing. In my view, the appropriate range of sentence here would have been between nine and 12 months in jail, rather than 12 to 15 months as sought by the Crown, and the aggravating factors, including Mr. Pinnock’s prior criminal record and the fact that his involvement in these transactions was entirely for commercial gain as a commercial participant, would have moved me towards the upper end of that range.

[36] However that would be before I took account of principles of proportionality and took into account that I still regard Mr. Pinnock to be a person who has prospects of rehabilitation. Once I take account of those principles, I have reached the conclusion that a sentence of nine months in jail on top of 16 days of pre-sentence custody, to be followed by two years of probation, is an appropriate sentence in these circumstances that recognizes the seriousness of these offences, the significance of background aggravating factors, but that also leaves room for Mr. Pinnock to be released sooner back into the community to pursue a course of rehabilitation, should he choose to make the life-changing decision to do so.

Ancillary Orders:

[37] Given that there is no opposition from counsel for the defence, a lifetime prohibition order from the possession of firearms will issue under section 109 of the Criminal Code, and the offender will provide a sample of his DNA, if he is not already done so, for inclusion in the national DNA registry.

[38] Mr. Pinnock’s probation will be in accordance with standard terms to be agreed by counsel for the defence and Crown Counsel, absent which I will impose probation terms. In any event, the period of probation contemplated in the sentence is intended to commence immediately following Mr. Pinnock’s release from jail, either on the sentence, or on any extended sentence that may be imposed should he be found to be guilty of the other offenses which are presently outstanding as charges against him.

Final Decision

[39] Throughout the course of preparing these reasons for sentence, I have had in the back of my mind another sentence I recently found myself obliged to impose on an offender who I found guilty of his seventh repeat possession of a firearms offence, and his fifth repeat breach of a lifetime prohibition order. I sentenced that offender to a very lengthy penitentiary sentence.

[40] I had that sentencing in mind, not because the circumstances are similar which they obviously are not, but because he had previously been given the opportunity for rehabilitation by the imposition of a lenient sentence at an earlier time, and yet he had continued to reoffend.

[41] In that other case, ten years before I was sentencing him, the judge had imposed a very lenient sentence. He did so in spite of wondering aloud why he was even considering leniency. He told that offender that he hoped he would think about his future and his family's future, the safety of the community and do everything he could to abandon the criminal lifestyle. He told that offender that were it not for that leniency, he would be looking at a sentence of many years length, and the next time, if he did not get the message, the sentence would be much longer. He told him that all of his career chances and opportunities would be gone. He concluded by telling that offender that if it were not for the fact that he saw a lot of potential in him, he would have imposed a lot longer sentence than what he did impose. But that offender did not get the message there, and so 10 years later, after he had been given that chance, I found myself being obliged to impose that very lengthy sentence on him. That, Mr. Pinnock, is a bit of the way I feel in this case – like the judge sentencing that offender 10 years earlier in that other case.

[42] Whether you know it or not, you are on the cusp of being forced to make an important life direction decision. The relatively short time that you will be spending in jail serving a sentence for the two offences for which the jury convicted you in this matter will provide you with the time to reflect and to give further consideration to those two competing directions. The point is that arguments are being made here in your favour. Ms. Scott argues strongly in support of reasonable prospects of rehabilitation at a young age for a person like you. You are a person who has a relatively limited criminal background and she says you believe and claim you can still turn yourself into a productive and law-abiding member of Canadian society by pursuing positive life ambitions, such as becoming certified as a designated personal trainer.

[43] Well, Mr. Pinnock, I have been persuaded in part by those arguments. Those arguments have caused me to impose a lower sentence than what I might otherwise have imposed in the circumstances. Those arguments have also caused me to impose two years of probation after you finish serving that sentence to ensure that the state continues to have an opportunity to supervise your progress, in the hopes that my belief that you can and will make the correct decision to change your life path will not have been unfounded. But let me assure you, that if it is unfounded, and if I am mistaken in showing you that leniency, you like the offender in that other case I referred to will find yourself in circumstances for future offences where you will increasingly face lengthier sentences and where prospects of rehabilitation will effectively become meaningless and unavailable. So the choice, sir, is entirely yours. I sincerely hope you will make the right choice, and have the strength of character to stick with it. I believe you do. I sincerely hope you will not disappoint my confidence in you.

You will now stand up Mr. Pinnock.

Having been found guilty by the jury and convicted by me of trafficking in crack cocaine and of possession of proceeds obtained from the commission of an indictable crime in Canada, I hereby sentence you to serve nine months in jail in addition to and on top of your period of pre-sentence custody, which is believed to have totalled a period of 16 days, and in addition to two years of probation thereafter.

Again, I hope that the leniency of this sentence will serve as an impetus to you to change the direction of your life so that we do not see you again before our courts in the future.

Michael G. Quigley J.

Released: May 27, 2013

CITATION: R. v. Pinnock, 2013 ONSC 3114

COURT FILE NO.: CR13900002710000

DATE: 20130527

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

and –

TIGGANA PINNOCK

REASONS FOR SENTENCE

Michael G. Quigley J.

Released: May 27, 2013

R. v. Pinnock, 2013 ONSC 3114

Case Summary

Overview

Circumstances of the Offences

Circumstances of the Offender

Legal Parameters:

Positions of the Crown and the Defence:

Case Law:

Mitigating and Aggravating Factors

Principles of Sentencing

Reasons

Ancillary Orders:

Final Decision

You will now stand up Mr. Pinnock.

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 1