CITATION: Her Majesty the Queen v. Nuttall, 2017 ONSC 970

COURT FILE NO.: CR-16-011-0000

DATE: 20170209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Ms. Elizabeth Barefoot, for the Federal Crown

• and -

Druin Nuttall

Mr. Douglas Grace and Ms. Anya Shahabi, for the Accused

Accused

HEARD: February 9, 2017

REASONS FOR SENTENCE

Conlan J.

I. Introduction

1What sentence should be imposed on a first-time offender who has been found guilty of three counts of simple possession of three different controlled substances, one of them being a sizeable quantity of cocaine?

2That is the question to be decided.

3Mr. Druin Nuttall was tried before me, without a jury, in Owen Sound in December 2016.

4In written Reasons for Judgment reported at 2016 ONSC 7777, I found Mr. Nuttall not guilty of possession of cocaine for the purpose of trafficking but guilty of the lesser and included offence of simple possession of cocaine, guilty of simple possession of methamphetamine, and guilty of simple possession of codeine.

5The sentencing hearing was held in Owen Sound on today’s date, February 9, 2017.

II. The Facts

6The following summary of the facts is taken from paragraphs 5 through 11 of the Reasons for Judgment.

An Overview of the Facts

5In the evening on October 15, 2015, after a few months of police investigation, Mr. Nuttall was stopped by the police while driving northbound on Highway 10, in Grey County (just north of the village of Markdale). He was the only occupant of the car, which vehicle was owned by his girlfriend.

6The accused was arrested for possession of cocaine for the purpose of trafficking.

7The authorities believed that Mr. Nuttall was picking up cocaine in the Toronto area and transporting it to Owen Sound for the purpose of trafficking in it.

8After the arrest at the roadside, Mr. Nuttall was then searched by the police and found to be in possession of, among other things, $440.00 in cash (twenty-two $20.00 bills).

9The car was also searched by the police. Inside a backpack was found 29.4 grams of cocaine. Three cellular telephones were also seized by the police.

10The police then searched the accused’s residence, which he shared with others. They seized some items with cocaine residue on them, other things believed to be indicative of drug trafficking (like a digital scale, for example), and a half-full bottle of liquid codeine.

11The police also searched the electronic devices that had been seized at the roadside. Photographs were taken of text messages that were on one of those cellular telephones.

7The methamphetamine was a very small quantity found on a digital scale in the offender’s bedroom.

8The codeine was a half-full bottle of liquid found in the offender’s bedroom.

9In terms of why the Court acquitted Mr. Nuttall on the cocaine charge as laid, I set out here paragraphs 60 through 63 of the Reasons for Judgment.

60On the totality of the evidence adduced at trial, including a consideration of the absence of evidence, I am more than just suspicious, especially given the text messages. I would go as far as to say that I think that Mr. Nuttall was probably dealing cocaine and was likely intending to do the same with what was discovered in his backpack.

61But I am just not sure of that.

62An intention to traffic is certainly one reasonable inference to be drawn from the proven facts, however, particularly given the accused’s statement and the absence of evidence summarized above, other reasonable inferences to be drawn are that Mr. Nuttall is a heavy marihuana user, a heavy cocaine user, is involved with other buddies in a marihuana lounge (which involvement takes him to and from Toronto regularly), and is generally someone immersed in the drug subculture but whose purpose for possessing the cocaine in the backpack was not to traffic in it.

[63]] Accordingly, a finding of guilt on the lesser and included offence of simple possession of cocaine is the appropriate result.

III. The Offender

10Mr. Nuttall is currently 37 years old. He has no prior criminal record. He is not employed and is in receipt of disability benefits. He has obeyed rather strict bail conditions, including house arrest later amended to a daily curfew, since October 2015. He has two children, ages 1 and 14 years. Tragically, the mother of the teenager died not long ago.

11The Crown concedes that Mr. Nuttall was cooperative with the police. For example, he readily confessed to ownership of the items found within the motor vehicle.

12The Court has received letters from Mr. Nuttall’s mother, his father, and his girlfriend. Those letters speak highly of the offender and indicate that he appears to have changed his life and abstained from illegal narcotics since the time of his arrest. The letters also speak about the importance of Mr. Nuttall in the lives of his two children, his partner and his parents, but especially his teenage daughter who is struggling to cope with the loss of her mother. Finally, the letters confirm that the offender is remorseful for his actions and committed to his rehabilitation from what is described as a serious addiction to drugs.

IV. The Positions of the Parties

13The Crown requests the following sentence: 6 to 8 months in custody, in totality.

14The Defence requests a suspended sentence and probation for 12 months.

15Both sides agree that a conditional sentence order is statutorily available to Mr. Nuttall. And both sides agree that the Court could impose what is commonly referred to as a blended sentence, for example, jail on the cocaine conviction and a conditional sentence order or probation on the other two matters.

V. Analysis

The Legal Parameters

16There are no minimum penalties for any of the three offences.

17The maximum penalty for each is imprisonment for seven (7) years.

The Basic Legal Principles on Sentencing

18Sentencing is a highly discretionary and individualized process.

19I must have regard to the principles of sentencing outlined in section 718 of the Criminal Code of Canada – denunciation, specific and general deterrence, the need to separate certain offenders from society, rehabilitation, restorative justice and the promotion of responsibility in offenders.

20Because of the nature of these offences and the personal circumstances of this offender, there is some tension between what would otherwise be the paramount sentencing principles. On the one hand, for these types of offences, denunciation and general deterrence are key. On the other hand, for a first offender, rehabilitation and specific deterrence are important.

21Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.

22These are serious offences, particularly the cocaine.

23Mr. Nuttall should not be deprived of his liberty if less appropriate sanctions are appropriate in the circumstances – subsection 718.2(d). I should consider all available sanctions other than imprisonment that are reasonable in the circumstances – subsection 718.2(e).

24Any custodial sentence imposed on a first offender ought to be as short as reasonably possible in the circumstances. Further, it ought to be tailored to the accused rather than solely for the purpose of general deterrence.

The Aggravating and Mitigating Factors

25In my view, the major aggravating factors here are (i) the sizeable quantity of cocaine and (ii) the fact that Mr. Nuttall was in possession of not just one but three illegal substances, at least two of which (the cocaine and the methamphetamine) are real scourges on our society.

26The main mitigating factors are (i) the lack of any prior criminal history and (ii) the offender’s cooperation with the police.

The Jurisprudence

27No two cases are ever the same. Sentencing decisions can always be distinguished on their facts.

28Of the cases filed by both sides, the two that are most relevant are Her Majesty the Queen v. Chad Lake, an unreported decision of Justice Seppi of the Superior Court of Justice in Brampton made on January 13, 2004 (relied upon by the Crown), and R. v. Day, 2011 ONSC 1148, a decision of Justice Thorburn (relied upon by the Defence).

29In Lake, supra, after a trial, the offender was acquitted of possession of cocaine for the purpose of trafficking but found guilty of simple possession of 12 grams of crack cocaine. Mr. Lake was in his early twenties at the time of the offence. He had no prior criminal record. He was employed. He had four young children. There was cogent evidence that he was a drug addict. He was on bail at the time of his arrest. Justice Seppi sentenced Mr. Lake to 6 months in jail to be followed by 6 months of probation. A conditional sentence order was considered but declined.

30In Day, supra, the offender was found guilty after a trial of several offences including simple possession of 27.37 grams of cocaine. Mr. Day was in his late twenties at the time of sentencing. He had no prior criminal record. He was employed. He had no children and lived with his girlfriend. He used drugs but described himself as a non-addict. Justice Thorburn imposed a conditional sentence order of 2 years less 1 day in length, globally, on all convictions.

What is a fit Sentence for Mr. Nuttall?

31In my view, it is difficult to reconcile the two decisions referred to above. They are simply illustrative of what both counsel submitted to the Court today – there is a very wide range of sentences available on these offences.

32I think that one of the chief distinguishing factors between Mr. Lake and Mr. Day is the degree to which the latter rehabilitated himself after his arrest. Mr. Day had “done everything one could have asked him”, including completing school, maintaining good employment, and fostering healthier relationships (see paragraph 24 of the reported decision).

33I see Mr. Nuttall’s situation, overall, as more similar to that of Mr. Lake than that of Mr. Day. I simply do not have the same degree of evidence before me, and neither did Justice Seppi, that was placed before Justice Thorburn and which caused that Court to conclude that any length of time in jail would amount to a serious setback to the offender’s recovery (see paragraph 25 of the decision of Thorburn J.).

34I reach the same conclusion as that of the Court in the Lake, supra decision; a conditional sentence order is not sufficient in these circumstances to meet the objectives of sentencing, particularly denunciation and general deterrence.

35For possessing a cocktail of illegal narcotics, including nearly 30 grams of cocaine, Mr. Nuttall must be sentenced to some time in a correctional facility.

36It necessarily follows that I reject the Defence request for probation on its own. I was impressed with the submissions of Defence counsel, however, such a sentence in my view, for this offender on these facts, would be inadequate.

37Six months in jail, however, is too long for Mr. Nuttall. Unlike Mr. Lake, Mr. Nuttall was not on bail at the time of his arrest, and that factor was identified by Seppi J. as a major aggravating one.

38Further, Mr. Nuttall appears to have a closer relationship with his children than Mr. Lake did. Certainly, it is relatively unique that Mr. Nuttall finds himself being sentenced when his daughter has recently lost her mother and he has an infant child at home.

39As well, there is no indication that Mr. Lake cooperated with the police to the degree that Mr. Nuttall did.

40A relatively short jail sentence for Mr. Nuttall will suffice, to be followed by probation.

41I contemplated having a conditional sentence order follow the time in jail, however, I have concluded that the same end can be accomplished through probation.

VI. Conclusion

42The sentence of the Court is as follows.

43On the simple possession of cocaine, a conviction is registered, and Mr. Nuttall is sentenced to 90 days in custody.

44On the other two matters, the simple possession of methamphetamine and the simple possession of codeine, suspended sentences are imposed and Mr. Nuttall is placed on one probation order for 12 months. All of the statutory terms apply. In addition, Mr. Nuttall shall report to probation; he shall attend for any counselling or treatment recommended and not leave that program without permission from the supervisor; he shall sign any releases of information demanded of him to monitor compliance with counselling or treatment; he shall abstain from non-prescription drugs; and he shall obey a curfew of 11:00 p.m. to 6:00 a.m., daily, except for medical or dental emergencies for him or one of his children or his girlfriend and except for other times as approved in writing in advance by the supervisor.

45The curfew condition is being imposed for two reasons. First, to provide some teeth to the probation order such that it adds something to the denunciatory and deterrent effect of the overall sentence but still respects the importance of rehabilitation. Second, I am not aware of anything that will cause that term to unduly prejudice the offender or his family.

46The mandatory victim fine surcharges are imposed on all three matters, with 12 months to pay upon Mr. Nuttall’s release from custody.

Conlan J.