Court File and Parties

CITATION: R. v. Dunstan, 2016 ONSC 971

COURT FILE NO.: 1-6032108

DATE: 2016-02-02

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRETT DUNSTAN

Defendant

COUNSEL:

Mindy Caterina & Damien Frost, for the Crown

Reid D. Rusonik, for the Defendant

HEARD: December 21, 2015

Justice B. Glass

Reasons for Sentence

[1] Mr. Dunstan was found guilty of one count of possession of MDMA (ecstasy) and one count of possession for the purpose of trafficking of each of cocaine, marihuana and psilocybin contrary to the Controlled Drugs and Substances Act. The date of the offences was September 20, 2011.

[2] The quantities of each substance were 6.77 grams of MDMA, 4.7 kilograms of cocaine, 43 pounds of marihuana, and 4 kilograms of psilocybin. Originally, Brett Dunstan had been charged with possessing ecstasy for the purpose of trafficking but both legal teams agreed that the jury should only determine whether he was in simple possession of the substance.

[3] Brett Dunstan was not in Canada at the time of the police investigation of his residence at 76 Red Ash Drive in the Town of Markham on September 20, 2011. He had travelled to the Philippines on September 2, 2011. When he returned to Canada, he surrendered to the police.

[4] For several months he was held without bail. Later, a judicial interim release order was issued with a limitation of house arrest and later that was changed to permit him to be out of the residence of his surety.

[5] Mr. Dunstan is 43 years of age and has no criminal record.

[6] He has a pattern of being employed and earning a living.

[7] The Defendant has one son who is 10 years old. He has his son with him every second weekend.

[8] Currently, Brett Dunstan is apprenticing to become a licensed plumber.

Considerations for the Sentencing Process Pursuant to [Section 718](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

[9] A person being sentenced for these offences might anticipate a custodial sentence being imposed. The variety of drugs and the quantity in particular of the more serious substance, i.e. cocaine, is cause for a sentencing court to be concerned with the potential for a commercial enterprise of drug trafficking. A sentence that conveys a message that discourages the general public not to engage in such activity as well as one that specifically emphasizes that a Defendant discontinue such conduct are important features of the conclusion of the trial process.

[10] With a person who has no criminal record, one who has a pattern of earning a living, one who has continued to train his skills in this case to become a licensed plumber, and one who has maintained an interest in his child, a sentencing court will consider the potential for rehabilitation and the potential of either not imposing a custodial sentence or of imposing a lighter custodial sentence for a person who has not been imprisoned.

[11] There are occasions when a person in the position of Brett Dunstan must face a custodial sanction if the circumstances are of such significance that custody must be imposed. Because rehabilitation is part of the focus of the sentencing process, a court will strive to avoid an unduly harsh sentence that might remove any chance of rehabilitation.

[12] The Defendant submits that he has experienced a considerable amount of pre-trial custody as well as harsh bail terms when out of custody. In this case, Brett Dunstan has encountered both such that enhanced credit for pre-trial custody ought to be reflected in the sentence imposed. He was in custody from his arrest in late September 2011 until May 9, 2012 when he was released on bail following the conclusion of his preliminary inquiry. That was 7 ½ months in pre-trial custody. At a credit of 1.5 days for each day of that pre-trial custody, he had the equivalent of 11 ½ months of pre-trial custody. That is 4 ½ months credit. Following his bail hearing, he was subject to house arrest bail restrictions for a year whereby he should be given credit of 1 day for each 4 days amounting to 3 months pre-trial custodial credit. Then, Brett Dunstan was subject to bail terms for another 30 months with a curfew from 10 p.m. to 6 a.m. for which he ought to be given credit of 1 day for each 8 days of this circumstance for another 3 months of credit. These credit times total 18 months approximately as pre-trial credit if the Defendant’s submissions are accepted by the court.

[13] Mr. Dunstan is not a person of Aboriginal heritage.

Aggravating Factors

[14] Multiple drugs in quantities larger than personal use in your own residence that is occupied by his son every second weekend infer that this is a commercial drug trafficking business. Some of the product was packaged with names on them, i.e. possible customers. The large sum of money seized, i.e. about $100,000 cash, draws a sentencing court to focus on the commercial feature of the drug business here.

Mitigating Factors

[15] He does not have any criminal record. He has been a person who has constantly earned a living. Currently, the Defendant continues to work as an apprentice to become a licensed plumber. He maintains contact with his son.

[16] Never having been imprisoned, he should be considered for as little custodial sanction as possible with the proviso of considerations for the current charges and the facts surrounding them.

[17] Brett Dunstan has the foundation for rehabilitation.

[18] There is not a specific victim of crime, but one must consider that society in general might be a victim of drug trafficking.

Range of Sentences

[19] Both legal teams accept that the drugs involved lead to consideration of significant custodial sentences. Cocaine is the primary major substance involved here.

[20] The quantum of cocaine is not small. 4.7 kilograms of cocaine is significant and is worth many dollars. If one were to break down the product by cutting it with a substance such as lidocaine, the value is inflated.

[21] The Crown seeks a 10-12 year custodial sentence whereas the Defence seeks a 3 ½ year sentence less 18 months credit for pre-trial custody and very restrictive bail conditions when out of custody for a net jail sentence of 2 years.

[22] Mr. Rusonik points out that the court could consider a conditional sentence with probation and community service if one gave weight to the mitigating factors favouring Brett Dunstan.

[23] Both legal teams provided many cases for consideration of sentence. As is often the case with criminal sentencing hearings, the sentences are fact driven.

Analysis for Sentences to be Considered

[24] I do not think that the sentence should be less than 2 years so that a conditional sentence is not in the cards because of the seriousness of the drugs involved, their quantity and the inference of commerce with the purpose of trafficking at play. A conditional sentence in this case would be excessively low.

[25] I conclude that a net 2 year custodial sentence after credit for pre-trial custody is not acceptable again because the extent of the facts upon which a jury found Mr. Dunstan guilty are significant enough to require his sentence be one of several years less pre-trial custody and harsh bail release terms.

[26] At the same time, I am not persuaded by the Crown that 10-12 years should be imposed in light of the fact that he has several mitigating factors in his favour.

[27] Credit for pre-trial custody and harsh bail release terms should be 18 months which will be deducted from the total.

[28] Cocaine is a more serious drug sold for considerable sums of money. Couple that with other drugs involved here and I think that the possession of cocaine for the purpose of trafficking should carry a penal sanction of 8 years. The sanction for 43 pounds of marihuana is 12 months in custody concurrent to the cocaine sanction. The sanction for 4 kilograms of psilocybin is 12 months imprisonment concurrent to the cocaine sanction, and the sanction for MDMA is 12 months in custody concurrent to the cocaine sentence. The sanction for count 5 proceeds of crime is 12 months concurrent to the cocaine sentence.

[29] The global sentence is 8 years less 18 months credit for pre-trial custody and an allowance for stringent bail terms for an extended period of time for a net sentence of 6 years and 6 months.

[30] Ancillary orders were made on December 21, 2015:

[i] forfeiture of drugs seized;

[ii] a Tanita digital scale, CS4000 digital scale, a black Aurex calculator and 9plastic trays.;

[iii] a 2006 BMW motor vehicle VIN number WBSNB93516CX06163 seized,

[iv] The currency in the sum of $99,752 Canadian in the trunk of the BMW motor vehicle, $1500 Canadian from within the residence, and $1790 American currency;

[v] the residence located at 76 Red Ash Drive, Town of Markham, Ontario was in the name of Mr. Dunstan and his mother. The property has been sold and one half of the sale proceeds will be forfeited to the Crown to the sum of just over $300,000;

[vi] a DNA order;

[vii] a weapons prohibition order for a period of 10 years.

[31] I note that the Defence took no issue with the court making the ancillary orders because they naturally followed the jury’s verdicts.

Justice B. Glass

Released: February 2, 2016