CITATION: R. v. Herta, 2016 ONSC 3051
File No. CR-14-3081
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
BENJAMIN HERTA
R E A S O N S F O R S E N T E N C E
BY THE HONOURABLE JUSTICE T. J. Carey
On April 22, 2016, at WINDSOR, Ontario
APPEARANCES:
R. Pollock Counsel for the Federal Crown
K. Marley Counsel for Benjamin Herta
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR SENTENCE Page 1
Transcript Ordered: September 20, 2016
Transcript Completed: May 12, 2016
Ordering Party Notified: September 20, 016
FRIDAY, APRIL 22, 2016
CLERK REGISTRAR: Her Majesty the Queen and Benjamin Herta.
R E A S O N S F O R S E N T E N C E
CAREY, J. (Orally):
Mr. Herta you are here for sentencing on two counts that you were convicted of, of trafficking and I want to review first of all the Pre-Sentence Report (P.S.R.) and some of the principles that I need to apply here as well as the case law.
PRE-SENTENCE REPORT:
The P.S.R. here is generally positive. It indicates that Mr. Herta has a criminal record for possession of for the purpose of trafficking with a conviction date of March 20th, 2012. He was paroled on June 8th, 2012. It is clear that you Mr. Herta, you were bound by a probation order on the date of this offence, November 14th, 2012. Under the personal information section of the P.S.R. it indicates relationships with siblings were good, but not close and noted that the information provided by Mr. Herta was limited. However, his father indicated there was a supportive family relationship. Unfortunately the probation office was not able to speak to Mr. Herta’s fiancé. His bipolar affective disorder diagnosed since 2011 was confirmed by his physician Dr. Rizvi. It appears he has employment when he’s released with his father’s construction company. Mr. Herta owns, he says, two houses in Windsor. The one on Lincoln where the search warrant was executed is, of course, the subject of a forfeiture application by the Crown.
Mr. Herta indicated to the probation officer writing the report for me that he started smoking cannabis at 19 years of age, but doesn’t feel he’s addicted. In fact cannabis gives him panic attacks. He further indicates he had a problem with prescription drugs. That was between 2013 and 2014 after he was prescribed pain medication for work related injuries. He stated to the author of the PSR that he abused prescription drugs, marihuana and alcohol to numb his depression. Mr. Herta told the probation officer he was ashamed and remorseful for his behavior and is committed to a crime and drug free life. He further indicated that his motivation for the crime was to make fast money and to feed a gambling problem. He said he had no responsibilities and was living from day to day in a “party house” when these offences occurred.
There is no indication in the P.S.R. that Mr. Herta blamed others for his conduct, although that was suggested in the Crown’s submissions. I agree with Mr. Marley that the comment about the poor choice of friends comes from the author of the P.S.R. in its final line in the “Assessment” area:
What is of concern to this writer is the subject’s evident poor choice of friends.
This conclusion came after an assessment that recounted his being a repeat offender with a previous record for the same offence; a comment that he appeared to be taking responsibility for the offending activity; that he was ashamed of his actions; and finally that his actions were motivated by a gambling addiction. There was no indication in the summary or anywhere else in the report that Mr. Herta blamed anyone but himself.
Mr. Herta describes himself as someone who has made changes in his life to better himself. He had guaranteed employment upon his release. He has a place to stay because he owns two houses. He has a close relationship with his father and mother. His diagnosis was confirmed with both a bipolar disorder and the self-reporting that he is in full compliance with all his medications. His doctor had confirmed his treatment and the medications.
Finally, the P.S.R. recommended that if community supervision was ordered that a number of conditions were requested. I will deal with that at the conclusion of my reasons.
Mr. Herta spoke to the court pursuant to my request which is mandatory under s. 726 of the Criminal Code. It is called an allocutus. It was his opportunity to say something in addition to the very thorough submissions of his counsel. I will say at the outset I was impressed with his intelligence and his articulation. I was impressed the most by his indication that in custody he was frequently approached by other prisoners for advice as to how to make big money in the drug game. It goes without saying that we know in the criminal justice system that frequently a jail sentence has been described as a sentence to a school for crime. It is not unusual to hear of first offenders who describe going to jail and being pressured to commit crime, to learning about criminal behavior and not coming out of jail reformed whatsoever. But Mr. Herta said when he was asked he advised people that what he had done wasn’t worth it and that he tried to discourage others in the jail from choosing trafficking in drugs as a profession. He appeared sincere when he apologized to his family and his fiancé. He is planning to marry his fiancé and said he would not let her down and that she would help keep him on the straight and narrow. He indicated he was a changed man from when he committed the charges that I am sentencing him on today. I accept that he is sincere and I believe he wishes to lead a straight, sober and law abiding life when he is released. I do believe he will need some assistance from the court for that. These offences, described briefly (I have given my reasons for acquittal on Count Number 1 and conviction on Count Number 2) involved approximately ten kilos of marihuana in Mr. Herta’s vehicle and approximately half a kilo of marihuana at his home. The evidence supported that Mr. Herta was involved in ongoing trafficking from his home. I found the drugs in the car were consistent with him making a purchase from the supplier. All of the drugs were marihuana listed in Schedule II and generally treated as a softer drug under the CDSA.
Society’s Changing Attitudes Toward Marihuana
During the sentencing submissions, with the government’s announced intention to legalize marihuana possession, counsel were asked if the changing landscape in this country and changing opinion should have any effect at all on my sentence. The changing landscape is a hot topic currently.
This week alone the Globe and Mail had an article published April 20th, 2016 with the heading “Marihuana Laws Should Vary By Province,” and this reflects a report by the CD Howe Institute which seems to suggest that every province create laws which would govern everything from the stores carrying the drugs to penalties for selling to under age users. They suggested, “Joint ventures where the Federal Government would monitor the safe protection of marihuana for recreational use while the provinces would oversee distribution with an eye to meeting public health goals.”
The same day The Globe and Mail Report was released this week, the Angus Reid Institute found that 68 percent of Canadians agree on the need to “make it legal” which reflects an almost ten percent increase in only two years.
April 20th is known as 4-20 among marihuana enthusiasts who have, it has been noted, “campaigned to legalize the drug for a long time.” Marihuana was first prohibited in Canada in 1923. The poll that was quoted in the article says that 40 percent of Canadians say they have used Cannabis in their lifetime. I quote from the report:
As with tobacco the federal government should establish penalties for illegal trafficking and production while provinces should have discretion over setting penalties for the purchase and sale of marihuana to minors.
Importantly the Angus Reid poll found only 23 percent of Canadians supported the right to grow and sell their own marihuana and only six percent said that growth of plants at an unlimited level for personal use and/or sales should be legal. The Angus Reid poll concluded there seems to be a broad consensus that if people are going to be growing it at home, Canadians don’t want them selling it.
The problem with unregulated sale and why we need to regulate it, in my view, is at least two-fold. The major reason cannabis is urged to be legalized and regulated by everyone from politicians through the police chiefs is firstly health related. Secondly, and just as important, is the criminality associated with the current regime - criminality which Mr. Herta was part of. In R. v. Vu, 2015 ONSC 5834, [2015] O.J. No. 5278; 2015 ONSC 5834, at para. 125. Justice Durno said the following at para. 125:
[125] The seriousness of an offence involving marihuana is a subject upon which reasonable people may differ. There is no dispute that marihuana is regarded as a soft drug. It is a controlled substance that individuals can obtain licenses to possess and grow. However, as the Supreme Court of Canada has found, it is a psychoactive drug that causes alteration of the mental function: R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, 2003 S.C.C. 74, [2003] 3 S.C.R. 571, at para. 3. Both lower courts found that the harm was neither insignificant nor trivial. Some groups, albeit a relatively small percentage of all marihuana users, share a particular vulnerability to its effects including chronic users, pregnant women and schizophrenics (at para 3).
Mr. Herta candidly, in the P.S.R., noted the problems he associated with marihuana use and why he did not currently use it.
There is a strong scientifically proven relationship between currently available marihuana with high levels of THC and feelings of paranoia. I am personally aware (in my previous professional involvement as a lawyer) of two cases where accused parties were found not criminally responsible for murder, one for murder of his own mother. Both had their schizophrenic and delusional behaviour described as beginning early as a result of heavy marihuana use.
SENTENCING CASE LAW
I was referred to a thorough case brief by the Crown to assist me in determining the appropriate range of sentence in this matter and those cases, there were six, I have reviewed.
R. v. Cavan (1999), 1999 9309 (ON CA), 139 C.C.C. (3d) 449, involved four pounds of hashish and the sentence was 15 months. In that case, there was no indication of remorse. That case is about 17 years old now and in my view there is a distinction in the case law between hashish and marihuana.
R. v. Lister (2003), 2003 BCCA 269, 175 C.C.C. (3d) 528; B.C.C.A. 269, that involved 30 pounds of marihuana worth $75,000. The accused had some health problems. There was a discussion of, in that case, the difference in sentencing between Saskatchewan and British Columbia as the accused had his plea brought in from Saskatchewan to British Columbia. There was discussion of the appropriateness of a conditional sentence and in the end the sentence was nine months.
R. v. Aslam (2007), 2007 BCCA 122, 237 B.C.A.C. 163; 2007 B.C.C.A. 122, involved 200 pounds of marihuana worth about $400,000. There was a youth record and the offence was found to be part of large scale distributions. The sentence there was two years. It was an amount of marihuana significantly higher than what we are dealing with here.
The next case R. v. Pepin, 2012 ONCJ 256, 2012 Carswell Ont 5612 (O.C.J.). It is an Ontario case. The accused, as I found Mr. Herta, was described as intelligent and remorseful. It involved 4.7 kilos of marihuana and there was an 18 month conditional sentence.
The Crown also referred me to R. v. Hoang, 2013 ONCA 430, 2013 O.N.C.A. 430. That case involved 26 pounds of marihuana in the trunk of the car. There were difficult personal circumstances that were rejected as appropriate for a conditional sentence and in the brief reasons the Court of Appeal indicated, at para. 8:
[8] The appellant received a sentence of nine months’ incarceration plus two years’ probation. He does not challenge the length of the sentence, only that a conditional sentence would have been fit. Despite the fresh evidence concerning the appellant’s difficult personal circumstances, we see no error in the trial judge’s rejection of a conditional sentence, particularly given the appellant’s antecedents and the amount of marihuana involved.
Unfortunately those antecedents were not shared with us in the appeal decision.
The final case is another Court of Appeal decision from Ontario, R. v. Pham, (2016) ONCA 258. It is the most recent. It was heard March 24th, 2016. The appellant was appealing her conviction for possession of 48 pounds of marihuana for the purpose of trafficking and her sentence of imprisonment for a term of six months as a result of that conviction. It is important to note that she was an older first offender and that amount was upheld by the Court of Appeal as an appropriate sentence.
Last week, in R. v. Lloyd, 2016 SCC 13, 2016 S.C.C. 13, the Supreme Court of Canada ruled that the minimum one year sentence that applied to those trafficking in certain circumstances, including over three kilos of marihuana and with a previous conviction, that that minimum one year sentence was cruel and unusual punishment. The Court set aside an 18 month sentence and reduced the sentence given to Mr. Lloyd by the Court of Appeal back to the original sentence of 12 months.
It has not been argued that the law, which on the face of it seems to come close to the situation that Mr. Herta found himself in, applies to Mr. Herta and I have not considered the minimum sentence. If I had, I would not have found it to be constitutional, given Lloyd’s release last week. It is important to note that that decision in Lloyd was not a marihuana case, it was crack cocaine and heroin, much more dangerous drugs.
In reviewing all of the cases that I have been given by the Crown and submissions by the Crown and the defence, I have concluded that the appropriate range of sentencing for these two offences, and I find that they should be treated concurrently, is between nine and 12 months. In deciding where in that range Mr. Herta’s sentence should fall, I look first at the aggravating factors. He was on probation at the time of this offence and he has a recent record for the same offence. In terms of the factors that I see as neutral, the fact that he had some security in his home, a camera, I do not find to be an aggravating factor. His role in the supply chain of this marihuana as I have found was that he was not part of the production or of a major criminal organization. I find that he was a small level trafficker in marihuana, out of his home. He certainly was engaged in that when he was arrested.
In terms of mitigating factors, I consider the factors that follow.
There was a long wait for the trial. I have dismissed a s. 11(b) Charter application by Mr. Herta and his former co-accused, Ms. Natywary; but it is important to note there were onerous bail conditions imposed. Those conditions lasted for about 16 months when he was initially released and, pursuant to R. v. Downes a Court of Appeal decision found at 79 O.R. (3d) p. 321 are relevant to sentencing.
At paragraph 29 the court says the following:
On the other hand, some of the same considerations that justify credit for pre-sentence custody apply to an offender who has spent a long time under house arrest. Stringent bail conditions, especially house arrest, represent an infringement on liberty and are, to that extent, inconsistent with the fundamental principle of the presumption of innocence. House arrest is a form of punishment, albeit of a different character than actual incarceration. Pre-sentence house arrest varies little in character from the house arrest that is often imposed as a term of a conditional sentence under s. 742.1 of the Criminal Code.
As pointed out in R. v. Proulx, 2000 SCC 5, 2000 S.C.C. 5; [2000] 1 S.C.R. 61, at para. 103, Chief Justice Lamer identified house arrest as a form of punishment in the conditional sentence context:
First, the conditions should have a punitive aspect. Indeed, the need for punitive conditions is the reason why a probationary sentence was rejected and a sentence of imprisonment of less than two years imposed. As stated above, conditions such as house arrest should be the norm, not the exception. This means that the offender should be confined to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs. Of course, there will need to be exceptions for medical emergencies, religious observance, and the like.
The Court of Appeal went on to reduce the sentence in Downes by a significant amount. The trial judge’s sentence of 21 months was reduced to 16 months imprisonment, a roughly 20 percent reduction.
I also take into account the fact that
Mr. Herta’s trial time and waiting for trial time was elongated by his case being paired with Ms. Natywary. I note that the prosecution of that count, Count 1, (Ms. Natywary was not charged on the two counts that Mr. Herta has been convicted of) was dismissed by myself for reasons that I’ve already given. Those reasons included finding no evidence at all of any connection between
Mr. Herta and Ms. Natywary, or her son, after the completion of the trial. The trial produced no evidence whatsoever that supported Mr. Herta or Miss Natywary having any control over the 225 kilos found in the second building adjacent to the home that Ms. Natywary occupied, in what I found to be a rent-to-own situation.
I have also found genuine remorse as a mitigating factor in sentencing Mr. Herta and acceptance of responsibility.
Finally, he is being treated for bipolar disorder and is on medication. I accept that this untreated disorder likely contributed to his criminal lifestyle in that he was living day to day and that, like many, he self-medicated for depression. I accept that he has abandoned that lifestyle.
SENTENCE AND PROBATION
In conclusion, an appropriate sentence for Mr. Herta in all of the circumstances is nine months in custody. That will be the sentence less credit for the time he has spent in custody. I had a calculation given to me earlier in the week and perhaps we can agree on that before his sentencing is complete. In addition, following your release from custody, Mr. Herta, you will be on two years probation with conditions as set out in the P.S.R.
You are to report as directed to the probation officer within two working days of your release from custody.
You are not to change your address without notifying and obtaining an approval from your probation officer in advance.
You are to abstain from the purchase, possession or consumption of illegal drugs except with a medical prescription.
You are to abstain from owning, possessing or carrying any weapon as defined by the Criminal Code of Canada.
You are to make reasonable efforts to find and maintain suitable full-time employment and provide proof of same to your probation officer. That should not be a problem. Your father has indicated employment is available with him.
You are to attend and participate and comply with any assessment, treatment, counseling program or any program as may be directed by your probation officer. You are to sign the necessary releases of information to allow your probation officer to monitor your compliance with any counseling program or programming you may be involved in.
If directed by your probation officer, you are to obey a curfew.
You must continue your compliance with your prescribed medication.
You are not to hold communication directly or indirectly with Edward Serey or Roddie Segemany or anyone else named in writing by your probation officer. The probation office recommended Tiffany Natywary. I do not know that you have any need to contact her, but at the same time she has not been convicted of anything and there is no relationship I know of between you. There was - Jackie Burkoski was recommended. I am not sure who that is. Mr. Marley, any comment on Jackie Burkoski as somebody he is not to associate with?
MR. MARLEY: It is factually connected to this case, Your Honour, in the sense that Mr. Burkoski was charged with offences that arise out of the police involvement at Mr. Herta’s home.
REPORTER’S NOTE: DISCUSSION WITH COUNSEL
THE COURT: Okay, so Jackie Burkoski will be the third person you are not to have association with or anyone else named in writing by your probation officer. Mr. Herta, if you could stand up. Do you understand those conditions of probation?
BENJAMIN HERTA: Yes I do Your Honour.
THE COURT: Do you have any questions? Anything you do not understand?
BENJAMIN HERTA: No, I’ll ... for that. Thank you.
REPORTER’S NOTE: THE ACCUSED IS OFF MICROPHONE AND COULD NOT BE HEARD CLEARLY
THE COURT: All right, thank you. In addition, there is a mandatory order that you provide a DNA sample and I will make that. It is normally by blood and would be done today. Do you understand? Have you given a DNA sample before?
BENJAMIN HERTA: Yes I have on my other conviction.
THE COURT: They may or may not take it if you’re already in the bank. As well, as a result of your previous record I am obliged under s. 110 of the Criminal Code to prohibit you from possessing or owning any weapons, ammunition etc. as defined in s. 110 or the remaining of your life. The victim fine surcharge, I believe these offences pre-date the mandatory section of the Criminal Code. The Criminal Code provides that a surcharge of $200 per count be assessed for the purpose of funding a fund that goes to victims of crime. In looking at your circumstances you are likely to be working. You have two houses. I did not receive any information that you would not be able to pay those counts and I am ordering a victim surcharge to be paid on each count in the amount of $200. Is there anything else?
MR. POLLOCK: No sir, there is, Mr. Marley may have something else. I just want to address the forfeiture application.
THE COURT: Yes.
MR. POLLOCK: And it should go to Assignment Court and we’ll set a date on that date.
THE COURT: All right.
MR. MARLEY: That’s fine.
THE COURT: All right, and as I mentioned at the outset, and you can have a seat sir, I have, as I promised, prepared Reasons for the dismissal of the s. 11(b) motion first of all and I have two copies for you Mr. Marley if you could deliver one to Mr. DiPietro...
MR. MARLEY: Yes sir I will.
THE COURT: ...on behalf of the court and I have as well Reasons for my dismissal of the s. 8 motion that you brought on behalf of your client. Are you content on behalf of Mr. Herta that rather than read those Reasons I distribute them to you?
MR. MARLEY: Yes Your Honour that’s fine, thank you very much.
THE COURT: Is there anything else?
MR. POLLOCK: No sir.
MR. MARLEY: No I don’t believe so.
THE COURT: All right, so we are adjourned and I will be available to sign any orders that are required. Mr. Herta, good luck to you. I’ve accepted the sincerity of what you said.
BENJAMIN HERTA: I appreciate it.
THE COURT: And you did not testify in this trial. I have never assessed your credibility before. You have a lot going for yourself. You are bright. You obviously have a business head. You are articulate. There is no reason why you should not be successful. You have a supportive family and your father has some employment that you are working with him. You are still a young man. You have the ability to be successful without turning to crime. You know that and I know that, so good luck in those endeavors. Ultimately, the safety of society is best protected by criminal behaviour stopping by rehabilitation. Good luck.
BENHAMIN HERTA: Thank you, Your Honour.
MR. MARLEY: Your Honour, just on the point of the pre-sentence custody, I’m sorry, I guess I should have raised it.
THE COURT: Oh yes, I did ask you about that.
MR. MARLEY: Right.
THE COURT: The calculation.
MR. MARLEY: I had given you information on Monday.
THE COURT: Yes.
MR. MARLEY: To which that number should be added now four more days or the equivalent of six more days. I didn’t bring my notes with me from Monday so I don’t know whether Your Honour has the notes before you or not. I’m sorry.
THE COURT: No.
MR. MARLEY: The indictment should reflect obviously that a substantial portion of that time has already been spent in custody.
THE COURT: Yes, and did you have an input on that? I think we had 169 days in pre-sentence custody or at one and a half times that would be 253. There have been four more days which are six. So it would be 259 days should be subtracted from the nine month sentence.
MR. MARLEY: Thank you.
THE COURT: Any comment on that Mr. Pollock?
MR. POLLOCK: No sir, those were the numbers that were provided to the court on Monday and the Crown didn’t dispute those numbers.
THE COURT: All right, thank you.
form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Annette Duquette
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. Benjamin Herta
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
245 Windsor Ave., Windsor, Ontario
(Court Address)
taken from Recording
DRD#0899_245-CRTRM3_20160422_092604__10_CAREYT
, which has been certified in Form 1.
September 20, 2016
Annette Duquette
(Date)
(Signature of Authorized Person(s))
*This certification does not apply to the Reasons for Sentence which was judicially edited.