COURT FILE NO.: CR-16-951-0000
DATE: 20180131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Elizabeth Barefoot, for the Federal Crown
- and -
Michael Duregger
Yaroslav Obouhov, for the Accused
Accused
HEARD: January 31, 2018
REASONS FOR SENTENCE
Conlan J.
I. Introduction
[1] On November 14, 2017, Michael Duregger (“Duregger”) entered guilty pleas to four counts on the Indictment, all stemming from an incident in the Town of Durham in Bruce County on August 3, 2016: count 1 - possession of fentanyl for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (“CDSA”), count 2 – possession of cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA, count 3 – possession of methamphetamine for the purpose of trafficking contrary to section 5(2) of the CDSA, and count 6 – possession of a prohibited weapon (a flick knife) while prohibited from doing so for life by virtue of a Court Order contrary to section 117.01(1) of the Criminal Code of Canada.
[2] On November 14th, a consent Forfeiture Order was issued, a presentence report was ordered, and the sentencing was adjourned to today, January 31, 2018, in Walkerton.
[3] The guilty pleas were entered after Duregger applied unsuccessfully to exclude evidence at trial on the bases of alleged Charter violations. This Court’s decision on the Charter Application is reported at 2017 ONSC 5834.
II. The Facts
[4] In the afternoon on August 3, 2016, Duregger was driving a car through Durham. The car was stopped by the police for reasons that are unimportant to the sentencing decision. A flick knife was seized from Duregger’s person, and he was arrested for the weapon offence. The car was searched and found to contain narcotics, drug paraphernalia, and a large quantity of cash, among other items.
[5] In terms of the narcotics, Duregger was in possession of, for the purpose of trafficking, 49.3 grams of fentanyl, 51 grams of cocaine, and 103 grams of methamphetamine. There were other narcotics seized as well, including a very large amount of marihuana and a plethora of steroids.
III. The Offender
[6] Duregger is now 33 years old. He is married and has several dependants. He is fairly close with his parents, neither of whom is in good health.
[7] The offender has a nasty criminal record. It spans from 2001, in Youth Court, to 2011, and it contains some 17 prior convictions, including possession of stolen property, assault causing bodily harm (two convictions), robbery, escape lawful custody, uttering threats, breach of recognizance, aggravated assault, breach of probation (four convictions), possession of a weapon for a dangerous purpose, breach of undertaking, assault with a weapon, common assault, and simple possession of a substance under the CDSA in 2011 for which he received a fine.
[8] Duregger had his first child, a boy, when he was just 18 years old. Since then, he has fathered five children, all girls, with his current spouse.
[9] Duregger has been with his current partner for 12 years. They have been married for nearly 7 years. Their children range in ages from 1 to 9 years.
[10] Duregger did not complete high school and has had several jobs over the years, from a forklift operator to a woodworker to a labourer for an insulation company.
[11] Duregger has a lengthy history of using alcohol and illegal drugs. At the time of these offences, he was addicted to crystal meth and fentanyl.
[12] During the interview for the presentence report, Duregger presented as polite, cooperative and willing to attend drug treatment.
IV. The Positions of the Parties
[13] The Crown requests the following sentence: 7.5 years in prison, less presentence custody, plus ancillary Orders.
[14] The Defence requests a sentence of 3 years in jail, less presentence custody. The Defence does not contest the ancillary Orders being sought.
[15] Both sides agree that the presentence custody amounts to the equivalent of 696 days.
V. Analysis and Conclusion
The Legal Parameters
[16] There is no minimum penalty for any of the four offences.
[17] The maximum penalty for the weapon offence is ten years in prison. The maximum penalty for each of the three narcotics offences is imprisonment for life.
The Basic Legal Principles on Sentencing
[18] Sentencing is a highly discretionary and individualized process.
[19] I 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.
[20] In this case, denunciation, specific and general deterrence and the need to separate Duregger from society are key. A strong message must be sent that possessing a deadly cocktail of dangerous illicit substances for the purpose of trafficking those substances to others will not be tolerated in our community and will be met with serious condemnation from the Courts.
[21] Exhibit 3, the Public Health Ontario documents filed by the Crown on sentencing, illustrate the deadly consequences of persons coming into contact with fentanyl, across Ontario and in Grey and Bruce Counties specifically.
[22] Of course, although Duregger has had chances in the past to mend his ways, rehabilitation is not to be forgotten. He has expressed a desire to attend for drug treatment.
[23] Any sentence imposed must be proportionate to the gravity of the offences and the degree of responsibility of the offender – section 718.1.
[24] These narcotics offences are at the very serious end of the spectrum. Not only are the substances (fentanyl, cocaine and methamphetamine) highly dangerous and addictive, they were being possessed here by Duregger in relatively large quantities.
[25] The offender should not be deprived of his liberty if lesser 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).
[26] Nothing but further time in jail would be reasonable for this offender on these facts.
The Aggravating and Mitigating Factors
[27] In my view, the chief aggravating factors here are (i) the prior criminal record for Duregger which includes weapons offences and one narcotics conviction, albeit minor, (ii) the relatively large quantities of the narcotics that were possessed by Duregger, and (iii) the fact that Duregger had three different illegal substances, all highly dangerous and one (fentanyl) having captured national attention for its potency and potentially lethal nature.
[28] Mr. Obouhov is correct that the criminal history does contain a significant gap, with the last entry being in 2011.
[29] The mitigating factors are the guilty pleas, not early but still mitigating, Duregger’s family responsibilities especially towards his many children, and Duregger’s willingness to seek drug treatment.
What is a fit Sentence for Duregger?
[30] In terms of the jurisprudence to consider, the Crown filed some decisions from the Ontario Court of Justice, all of them emanating from Kitchener. The Defence filed several decisions from the Ontario Court of Justice, two from the Superior Court of Justice, one from the Saskatchewan Court of Queen’s Bench, and one from our Court of Appeal.
[31] The latter is the most instructive as it is recent and speaks about general principles. In R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 (C.A.), Mr. Loor, after a trial, was convicted of three counts of using a forged document (a prescription) and three counts of trafficking fentanyl. He was sentenced to six years in the penitentiary, less credit for time already served.
[32] Mr. Loor was a low-level member of a fentanyl trafficking ring. Three times, he used a forged prescription to obtain a total of 45 fentanyl patches. He was 39 years old. He was not an addict. He had a previous criminal record including a conviction for trafficking. He had strong family support and young children and was a productive member of society in that he did volunteer work.
[33] The Court of Appeal upheld the sentence. It stated that, generally, those who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences. That applies even to first offenders. See paragraph 50 of the Court’s decision.
[34] Duregger’s age is comparable to that of Mr. Loor. The same applies to their family circumstances. Arguably, though not trafficking, Duregger’s offences are more serious than those committed by Mr. Loor. Unlike Mr. Loor, Duregger was an addict when he committed his offences. Duregger has just one prior drug conviction on his record, and not for trafficking, but his criminal history in general is every bit as nasty if not more so than Mr. Loor’s. Mr. Loor probably had more going for him in the community at large than can be said for Duregger. On the other hand, Duregger pleaded guilty, albeit late, while Mr. Loor had a full blown trial.
[35] The Defence relies extensively on this Court’s own decision in R. v. Gagnon, 2017 ONSC 7470, [2017] O.J. No. 6535 (S.C.J.). In that case, after a trial, I sentenced the offender to, effectively, four years in prison for possessing, for the purpose of trafficking, 12.34 grams of powder fentanyl and 43.76 grams of methamphetamine.
[36] I disagree with Mr. Obouhov that Duregger ought to receive a sentence shorter than that imposed on Mr. Gagnon. I am of the view that Duregger ought to receive a longer sentence than what Mr. Gagnon received. Notwithstanding the guilty pleas by Duregger, his convictions are more plentiful than Mr. Gagnon’s, and the quantities of the substances in Duregger’s situation are much higher than in the case of Mr. Gagnon, and Duregger, unlike Mr. Gagnon, has admitted to being a mid-level drug trafficker who was distributing illicit narcotics to others for many months prior to his arrest. Those distinctions far outweigh anything that the Defence can point to as being more mitigating for Duregger as compared to Mr. Gagnon.
[37] I do agree, however, with Mr. Obouhov that the sentence sought by the Crown is too high and is not justified by the case law filed on either side. After all, the harshest sentence imposed in any of the decisions filed is found in R. v. Boardman, [2016] O.J. No. 4379 (O.C.J.), that being 6 years in prison on top of 169 days’ time served. The offender there was a habitual drug trafficker with no less than six prior trafficking-related convictions on his record.
[38] In the end, I am of the view that a fit sentence for Duregger is something similar to but a little lower than what Mr. Loor received, and similar to but a little higher than what Mr. Gagnon received.
[39] A secondary DNA Order is issued on each of the convictions.
[40] On each of the convictions, a section 109 Criminal Code firearms and weapons prohibition Order is imposed for life. The Crown requested ten years in duration for certain items, however, it ought to be for life in light of Duregger’s violent criminal history and his penchant for weapons.
[41] The mandatory victim fine surcharge is imposed on each of the convictions, with 12 months to pay upon the offender’s release from custody.
[42] Finally, Duregger is sentenced to five (5) years or 1825 days in custody, less 461 days grossed-up to 696 days (a scale of 1 to 1.5) presentence custody, for a total sentence from today of 1129 days in jail (a little more than 3 years plus 1 month). That is broken down as follows: 1129 days on count 1 (fentanyl), with all of the presentence custody being applied to that count, 1129 days, concurrent, on count 2 (cocaine), 1129 days, concurrent, on count 3 (methamphetamine), and 180 days, concurrent, on count 6 (weapon).
Conlan J.
Released: January 31, 2018
COURT FILE NO.: CR-16-951-0000
DATE: 20180131
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
Michael Duregger
Accused
REASONS FOR SENTENCE
Conlan J.
Released: January 31, 2018