SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
ZEDEKIAH McANUFF
REASONS FOR SENTENCE
BEFORE THE HONOURABLE JUSTICE C.J. CONLAN
On Tuesday, October 10, 2017, at Owen Sound, Ontario
APPEARANCES:
Ms. E. Barefoot Counsel for the Federal Crown
Mr. G. Pannue Counsel for Zedekiah McAnuff
Her Majesty the Queen v. McAnuff, 2017 ONSC 6175
TUESDAY, OCTOBER 10th, 2017:
CONLAN, J. – Orally:
I. Introduction
Zedekiah McAnuff has entered guilty pleas and been found guilty of three offences, namely, possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, count 1; careless storage of ammunition, specifically, 0.38 calibre bullets, contrary to section 86(1) of the Criminal Code, thereby committing an offence under section 86(3) of the Criminal Code, count 2; and possession of ammunition, specifically, 0.38 calibre bullets while prohibited from doing so by Court Order, contrary to section 117.01(1) of the Criminal Code, thereby committing an offence under section 117.01(3) of the Criminal Code, count 4.
II. The Facts
On September 15, 2016 Mr. McAnuff was a passenger in a motor vehicle stopped by the Ontario Provincial Police at a R.I.D.E checkpoint in the Town of the Blue Mountains.
The driver of the vehicle was Emily Vukasinovic. Mr. McAnuff was the registered owner of the vehicle.
Ms. Vukasinovic failed a roadside breath test.
Mr. McAnuff made a nuisance of himself at the roadside and was arrested by the police for public intoxication.
In an effort to retrieve Mr. McAnuff’s driver’s licence from the interior of the motor vehicle, the police discovered a substantial quantity, namely, $2,700.00 of Canadian currency, plus suspected cocaine.
Five packets of cocaine were ultimately seized by the police, weighing in total 21 grams. In addition, the police seized 51 grams of a cutting agent substance and two vials of cannabis resin or a substance akin to cannabis resin. Eight 0.38 calibre bullets were seized by the police, as well as five cellular telephones. Two of those phones that were searched under warrant by the police were found to contain drug related communications to or from Mr. McAnuff.
As of September 15, 2016 Mr. McAnuff was prohibited from possessing ammunition by Court Order made by Justice J. Richardson in the City of Toronto on June 29, 2011.
In summary then, Mr. McAnuff is to be sentenced for possessing 21 grams of cocaine for the purpose of trafficking, careless storage of eight 0.38 calibre bullets, and possession of the eight 0.38 calibre bullets while prohibited from doing so under Court Order.
III. The Positions of the Parties
In addition to the ancillary Orders that are to be issued on consent, the Federal Crown requests the following sentence, two years in custody less presentence credit.
Mr. McAnuff has served 389 actual days in custody to be credited at the rate of 1:1.5 to equal 583 days, or nearly 19.5 months in custody.
Thus, the position of the Federal Crown from today is a further 147 days in jail for Mr. McAnuff.
The Defence has put forward two alternatives for the Court’s consideration.
The first is a sentence of time-served for Mr. McAnuff and a period of probation of three years on certain terms and conditions.
The second position put forward by the Defence, in the alternative, is 90 days in custody to be served intermittently and possibly to be followed by some period of probation.
The Defence takes no issue with any of the ancillary Orders sought by the Crown.
IV. Analysis
The Legal Parameters
There is no mandatory minimum sentence facing Mr. McAnuff.
The maximum sentence available on count 1, possession of cocaine for the purpose of trafficking, is life imprisonment, which is a clear sign that Parliament has determined that that offence is to be treated very seriously by the Courts.
The Basic Legal Principles on Sentencing
Sentencing is a highly discretionary and individualized process, whereby, the Court must take into the consideration the principles of sentencing in section 718 of the Criminal Code and other provisions around section 718.
The prime objective is to impose a sentence that takes into account the aggravating factors, the mitigating factors, the key principles of sentencing that are most applicable to this case, and to impose a sentence that is proportionate to the gravity of the offences committed, while at the same time, taking into consideration the unique circumstances of the offender.
In this particular case, in my view, the paramount sentencing principles are denunciation, general deterrence, specific deterrence of Mr. McAnuff, and rehabilitation.
The clearest mitigating factor on sentence in this case are the guilty pleas entered by Mr. McAnuff.
The jurisprudence is clear that guilty pleas, whenever they are entered, are to be treated as a mitigating factor as they are a sign of remorse on the part of the offender and they save the administration of justice court time in terms of a trial.
So, regardless of the strength of the Crown’s case - and it seems to me that the Crown’s case here was quite strong – these guilty pleas by Mr. McAnuff still avoid what would have likely been a multi-day trial in the Superior Court.
In terms of the aggravating factors, one of them is the related criminal history for Mr. McAnuff. He is certainly not a first offender.
His criminal history includes from June 2011 in Toronto, convictions for possession of a prohibited or restricted firearm with ammunition; unauthorized possession of a firearm; careless storage of a firearm, weapon, prohibited device or ammunition; possession of a Schedule II substance for the purpose of trafficking; and simple possession of a Schedule I substance. And from February 2012 in Cambridge, Ontario, a conviction for breach of probation.
It is certainly not the most extensive criminal record that this Court has ever seen, but it is highly relevant because it contains related convictions.
By that I mean, Mr. McAnuff has a history of committing drug offences. This will be the third conviction for a drug related offence.
Mr. McAnuff has a history of committing firearms or ammunition related offences. These will be Mr. McAnuff’s fourth and fifth convictions of that sort.
And finally, Mr. McAnuff has a history of breaching Court Orders. This will be his second conviction of that sort. First the breach of probation in 2012, and now the failure to comply with Justice Richardson’s Order.
The other chief aggravating factor in this case is simply a recognition of the dangerousness of having in one’s possession various illicit substances, plus ammunition, plus items to traffic the illegal substances, and that is exactly what Mr. McAnuff possessed on this date in September of 2016 - 21 grams of cocaine, that is not an insignificant quantity; 51 grams of a cutting agent whose only function is to aid in the trafficking of the narcotic; two vials of some other substance, probably cannabis resin; and eight 0.38 calibre bullets which were operational; as well as multiple cellular telephones which presumably were being used to assist with the trafficking of the narcotics.
V. Conclusion
In my view, the appropriate range of sentence for Mr. McAnuff is something between 21 and 24 months in custody.
I do not believe that a sentence of time-served would be sufficient in order to meet the sentencing principles of denunciation, general deterrence and specific deterrence. I am of the view that some further period in custody for Mr. McAnuff is required.
In determining how much more time is necessary, I will accede to the alternative position put forward by the Defence and limit the further period in jail to 90 days. That is less than what the Crown has asked for, at 147 days.
I do not think that the Crown’s position is unreasonable in any way, but in order to give some attention to the principle of rehabilitation and in order to give adequate weight to the mitigating factor of the guilty pleas, I have decided to temper the further period in jail.
So, the decision of the Court will be 90 further days in custody on top of the time served.
I am not going to allow Mr. McAnuff to serve the 90 days intermittently. In my view, he is not a suitable candidate for an intermittent jail sentence. He has already shown a willingness to breach Court Orders, whether it be a probation Order or a firearms and ammunition prohibition Order.
Besides, Mr. McAnuff is not somebody who is going to lose his job over the next 90 days since he works for his father. There is no need to have an intermittent jail sentence.
In terms of his ambition to go to college, I think that is a laudable goal, but he can do that after he is released from the correctional facility.
The sentence for Mr. McAnuff is as follows:
Unopposed, a forfeiture Order is issued and has been signed as presented.
Unopposed, on count number 1, a section 109 Criminal Code of Canada firearms and weapons prohibition Order is issued for life.
Unopposed, on count number 1, a secondary DNA Order is issued.
On count number 1, the sentence is 90 days in jail from today, on top of 389 days credited at 1:1.5, for 583 days of presentence custody. On count number 2, 90 days in jail concurrent. On count number 4, 90 days in jail concurrent.
So, the global sentence, in addition to the time already served, is 90 days in custody.
The mandatory victim fine surcharge is imposed on each of the three convictions for Mr. McAnuff, with 12 months to pay upon his release from custody. The time to pay does not start until Mr. McAnuff is released from jail.
I am not imposing any probation on Mr. McAnuff. In my view, it is a waste of time and energy. He has been on probation a couple of times in the past. It is up to him what he does when he is out. If you commit crimes then you come back to court. We do not need to be babysitting Mr. McAnuff anymore.
I will note that all remaining counts are withdrawn.
MATTER IS CONCLUDED
Form 1
CERTIFICATE OF RECORDING
Evidence Act (subsection 5(1))
I, Linda J. Thompson, certify that Recording 1011-crtrm#201-20171010-094247-10-CONLANC.dcr is the recording of the evidence and proceedings in the Superior Court of Justice held at 611 9th Avenue East, Owen Sound, Ontario on Tuesday, 10th October, 2017, and that I was in charge of the sound recording device during those proceedings.
Form 2
CERTIFICATE OF TRANSCRIPT
Evidence Act (subsection 5(2))
I, Linda J. Thompson, certify that this document is a true and accurate transcript of the recording; Her Majesty the Queen v. Zedekiah McAnuff, in the Superior Court of Justice, held 611 9th Avenue East, Owen Sound, Ontario taken from Recording which has been certified in Form 1.