Her Majesty the Queen v. Wendell Damian Cuff
Court File No. CR-14-99
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
WENDELL DAMIAN CUFF
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE C. BRAID
on March 1, 2016 at BRANTFORD, Ontario
APPEARANCES:
S. Antoniani Counsel for the Federal Crown
S. Reid Counsel for Wendell Cuff
TUESDAY, MARCH 1ST, 2016
...SUBMISSIONS BY MR. REID.
THE COURT: Thank you. Mr. Reid, is there anything that your client would like to say before I impose sentence?
MR. REID: No, thank you, Your Honour.
THE COURT: Thank you.
R E A S O N S F O R S E N T E N C E
Over the course of seven days in August and September of 2015, I heard pretrial motions on this matter. Mr. Cuff brought a Charter application seeking to exclude cocaine that was seized from him at the time of his arrest, pursuant to Sections 8, 9, and 24(2) of the Charter. I dismissed that application.
On November 9, 2015, Mr. Cuff was scheduled to commence his trial before a jury. Mr. Cuff attended before me and stated that, in light of my ruling on the Charter voir dire, he did not wish to challenge the Crown’s case. Although he did not plead guilty, Mr. Cuff conceded that the Crown could lead sufficient evidence to prove its case.
After taking into consideration the facts that I heard on the Charter voir dire, and upon hearing additional facts from the Crown, I found Mr. Cuff guilty of two charges, namely: possession of cocaine for the purpose of trafficking and breach of probation.
The matter is now before me for the imposition of sentence.
FACTS:
The following is a summary of the facts: On March 2, 2014 at approximately 2:50 p.m., an officer conducting speed enforcement in the City of Brantford observed Mr. Wendell Cuff driving at speeds of 84 and 85 kilometres per hour in a 50 kilometre per hour zone. The officer activated his roof lights and blasted his siren a number of times. Mr. Cuff veered onto another street, kept driving a short distance, and then made an abrupt right turn into the driveway and parking lot of a multi-unit apartment complex. The officer had followed Mr. Cuff for approximately one or two minutes before his vehicle turned into the lot.
Mr. Cuff drove through the first parking lot area, around the left of the building and into a second parking lot area before coming to a stop. He parked and the officer pulled in behind him, effectively blocking in the vehicle. Mr. Cuff was the only person in the vehicle.
Mr. Cuff immediately got out of the car and walked towards the rear of his vehicle. The officer asked Mr. Cuff for his licence, insurance and registration. Mr. Cuff stood there for about one to two seconds and then “bolted.” He ran on foot towards the back of the apartment complex. Officers began a foot chase that lasted for approximately five to six minutes, and eventually apprehended Mr. Cuff in a snowy field.
Mr. Cuff was arrested for failing to identify himself. He was given his rights to counsel and cautioned. Mr. Cuff was searched, and police located $731.40 cash in his pocket. Police learned that he was on probation with a term to keep the peace and be of good behaviour. Mr. Cuff was arrested for breach of probation and was transported to the police station. The failure to identify himself and the running from police constituted failing to keep the peace and be of good behaviour, which was a breach of his probation order.
The vehicle was not owned by Mr. Cuff. It was towed and police conducted an inventory search. Police found a yellow plastic shopping bag on the back seat behind the driver seat, which contained Mr. Cuff’s Ontario health card with his photo; the paper portion of Mr. Cuff’s temporary driver’s licence; and a sandwich style bag with numerous smaller baggies that contained powder cocaine.
The officers discontinued the inventory search of the vehicle, put everything back into the vehicle and applied for a search warrant. After obtaining a warrant, police searched the vehicle. In addition to the items noted above, police also seized two cell phones from the front passenger seat, a digital scale, a black pot, a glass measuring cup, and a set of utensils.
The cocaine was contained in four baggies that weighed 72.2 grams in total (approximately 2.5 ounces). Two baggies weighed approximately one ounce each. One baggie had 6.2 grams, and a fourth baggie had 8.1 grams. The cocaine had a street value of $7,220. A fifth baggie containing baking soda was also seized.
The police expert stated that, in light of the cocaine, baking soda, pot, and utensils, it was his opinion that Mr. Cuff had the intention to cook the powder cocaine into crack cocaine. The defence did not strongly dispute this opinion.
PRINCIPLES OF SENTENCING:
I have considered the purposes of sentencing as set out in s.718 and the sentencing principles set out in s.718.1 and 718.2 of the Criminal Code.
Mr. Cuff is 33 years of age. He was raised by his mother who worked very hard to make ends meet. He lacked supervision growing up and felt financial stressors. He had a strained relationship with his father that has improved in recent years. His uncle was a positive male role model as he was growing up. Due to his mother’s long work hours, Mr. Cuff lacked supervision as a youth and fell into crowds with gang members, although he himself does not identify as a member of a gang. He is three credits short of a high school diploma. He suffers from diabetes.
Mr. Cuff has a supportive partner and two young children. One is eight years old and one is 16 months old. I understand that the youngest child was born when Mr. Cuff was on bail, and he states this is part of his change in attitude.
Mr. Cuff was employed in a cleaning job before his arrest. His employer complimented Mr. Cuff’s work ethic and has expressed a wish to have Mr. Cuff return to that job upon release.
Mr. Cuff has been on a strict recognizance of bail since shortly after his arrest. The recognizance had three sureties, namely his common-law partner, his mother and his aunt. He was permitted to reside with his partner or his mother, effectively permitting him to continue his relationship with his family, especially his young children. He was subject to house arrest and could not be out of the house, except with his sureties. There was an exception for medical emergencies. He was not permitted to work.
During the preparation of his presentence report, Mr. Cuff acknowledged having been “deeply entrenched in the sale of drugs and the lifestyle associated with such. He confirmed that he often turns to these activities for monetary gain.”
Mr. Cuff was asked how the future will be different for him. He stated that his age will make a significant difference and that he is more mature now. He acknowledges that he has an anger management problem. He is more self aware, and is willing to attend counselling. He says his children are his main priority now.
I have considered the aggravating and mitigating factors in determining the appropriate sentence. The following is a list of the mitigating factors in this case:
- Pursuant to the case of R. v. Downes, 2006 3957 (ON CA), 79 OR (3d) 321, I have taken into consideration the fact that Mr. Cuff was on a recognizance of bail for two years that required him to be subject to house arrest.
With respect to Mr. Cuff, I take into account that he has had strict terms of bail since his release that have prevented him from working. I note, however, that he was permitted to reside with either his mother or his common-law partner. The bail did not negatively impact his family life, as in the Downes case. I have not assigned a specific amount of credit for the house arrest bail, but I have taken it into account as a mitigating factor.
I have also taken into account that Mr. Cuff spent the equivalent of six days in pretrial custody before being released on bail.
Mr. Cuff has been on bail for two years without incurring further charges.
Mr. Cuff is entitled to some credit for the manner in which the trial proceeded. On the first day of what would have been his jury trial, he advised the court that he did not require the Crown to call evidence, thereby saving court resources. While he has not pled guilty and expressed remorse, I will not treat his lack of remorse as an aggravating factor.
He has the support of his family, including his mother, aunt, and his current spouse. His family support and the fact that he has two young children will hopefully assist with his rehabilitation once he is released following the completion of his sentence.
The following is a list of the aggravating factors in this case:
The facts of this case are aggravating. Cocaine is a Schedule I drug which has serious negative effects on addicts and on the community. Mr. Cuff had 2.5 ounces of cocaine which has a street value of more than $7,000. Mr. Cuff breached a court order. He failed to identify himself and fled from police, which potentially placed himself and others in danger.
Mr. Cuff’s criminal record is a significant aggravating factor. His record includes three convictions for possession for the purpose of trafficking; a possession of a loaded prohibited or restricted firearm; a flight from police; dangerous driving, and two breaches of court orders. He received the equivalent four years in custody in 2011 for the loaded prohibited firearm and the two possession for the purpose charges.
The drug offence is motivated solely by greed. He is not an addict. He became entrenched in the drug trade and the lure of quick money, and the lifestyle associated with it. He confirms that he often turns to these activities for monetary gain.
When meeting with the probation officer to prepare the presentence report, Mr. Cuff stated that he has made poor decisions in his life and is motivated towards making positive changes. It is suggested that perhaps counselling might be of assistance. It is unfortunate, however, that Mr. Cuff has not taken any positive steps himself to engage in counselling while out on bail. Although his bail has been restrictive, he could have attended counselling with his surety and was not prevented from doing so. It is almost impossible to assess Mr. Cuff’s true motivation to make changes and to participate in counselling without him having taken any positive steps to date.
Because Mr. Cuff was convicted of possession for the purpose within the last ten years, he is subject to a mandatory minimum penalty of one year. Both counsel agree that the appropriate sentence is higher than the minimum in any event.
CASE LAW:
Courts have consistently held that cocaine trafficking in general is a serious offence.
In R. v. Greyeyes, 1997 313 (SCC), [1997] 116 CCC (3d) 334 SCC, the Supreme Court of Canada stated the following at paragraph 339:
It should not be forgotten that the offence of trafficking is taken extremely seriously by both the courts and the public, and a conviction brings along with it a great deal of social stigma. Additionally, sentences for these offences tend to be quite high.
The Ontario Court of Appeal has made similar statements and provided trial judges with guidance concerning the governing principles, and the customary range of sentence.
In R. v. Radassao, 1994 779 (ON CA), 1994 O.J. No.1990, the Court dismissed an appeal for a sentence of 12 months imprisonment imposed on a 33-year-old first offender convicted of trafficking. The offence involved the sale of half ounce of cocaine for $750. The accused in that case had been lawfully employed, lived with and supported his family, and had a history of involvement in community activities. The court stated at paragraph 12:
The court has, on a number of occasions, stated that persons involved in the trafficking of drugs, particularly cocaine, must be dealt with severely. Crown counsel submits that for this type of offence the range of sentence is from six months to two years less a day. The sentence of twelve months falls within that range and we are not persuaded, in all the circumstances, it was unfit or inappropriate.
These comments were repeated in R. v. Reid, [1997] O.J. No.2167 (Ont. Ct. Gen. Div.), (length of sentence upheld by the Court of Appeal [1991] O.J. No.2719) in which the court stated at paragraph five:
Offences involving trafficking in narcotics, especially crack cocaine, require exemplary sentences.
The court in Reid stated that a penitentiary sentence was required to reflect the severity of the offence and the nature of the drug, including its ability to not only destroy lives, but to lead to the commission of other serious offences.
The cases that I have just cited are somewhat dated, however, those principles still apply and have not been overturned in any subsequent case law. It is clear that trafficking in cocaine is a serious offence. Possession for the purpose of cocaine requires a sentence with an emphasis on specific and general deterrence and denunciation.
I have considered the cases provided by counsel for the Crown and the defence. While these cases are particularly helpful and provide a range, the facts on many of those cases can be distinguished.
Defence counsel submits that a sentence of two years less a day plus probation would beneficial and appropriate in this case. While I agree that rehabilitation should be a consideration, I am of the view that specific and general deterrence as well as denunciation are of primary importance in this case. Mr. Cuff’s criminal record reflects that he has been on probation almost constantly since 2006, and yet he has continued to commit very serious offences.
This is Mr. Cuff’s fourth conviction for possession of a controlled substance for the purpose of trafficking, and it involves possession of cocaine, a Schedule I substance. An escalation of penalties is needed to provide specific deterrence. It is also important to send a message to Mr. Cuff and to others who consider committing similar offences that this type of conduct is not appropriate.
I do recognize, however, that Mr. Cuff has a supportive family and has expressed a desire to change his behaviour for the better. An unduly harsh sentence would not be appropriate either in these circumstances.
Mr. Cuff, would you please stand. Mr. Cuff, on the charge of possession of cocaine for the purpose of trafficking, I sentence you to 30 months in custody. On the charge of breach of probation, I sentence you to 90 days concurrent.
I have already made a s.109 order for life, which is a mandatory order.
Possession for the purpose is a secondary designated offence. I have considered your criminal record, the nature of the offence, the circumstances surrounding its commission, and the impact this order would have on your privacy and security. I am satisfied that it is in the best interest to the administration of justice to make this order. Pursuant to s.487.051, I am ordering that a sample of your DNA be taken.
There will be the usual victim fine surcharge.
I have already made an order for forfeiture of the money and the packaging.
THE COURT: Do you understand the sentence, sir?
WENDELL CUFF: Yes.
THE COURT: Madam Crown, there is one additional charge, are you asking that it be marked withdrawn?
MS. ANTONIANI: Yes, please, thank you.
THE COURT: Thank you. So ordered. May I have the indictment, please.
MR. REID: Your Honour.
THE COURT: Yes.
...SUBMISSIONS BY MR. REID.
THE COURT: All right. So I am endorsing both indictments that Mr. Cuff has 40 months from today to pay the victim fine surcharge.
MR. REID: Thank you, Your Honour.
THE COURT: I have also made a notation that Count 2 on the two-count indictment is marked withdrawn at the request of the Crown.
MR. REID: That was the proceeds of crime charge? Yeah.
THE COURT: That was the proceed of crime charge, yes. Okay. Is there anything else that I can assist with?
MR. REID: I, I don’t believe so, Your Honour. Thank you.
THE COURT: Okay. Thank you.
MR. REID: Thank you, Your Honour. Thank my friend.
THE COURT: All right.
COURT REGISTRAR: Order. All rise.
THE COURT: Thank you. Good luck, Mr. Cuff.
...WHEREUPON THESE PROCEEDINGS CONCLUDE.
FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Rosemarie Hall certify that this document is a true and accurate transcription of the recording of
R. v. Cuff in the Superior Court of Justice held at 70 Wellington Street, Brantford, Ontario taken from Recording 0212_200_20160301_094701__10_BRAIDC.dcr which has been certified in Form 1.
*This certification does not apply to the Reasons for Sentence which were judicially edited.
March 17, 2016 ______________________
(Date) Signature of Authorized Person
Rosemarie Hall, Court Reporter
Authorized Court Transcriptionist ID No. 9001646627