COURT FILE NO.: CR-17-90000383-0000 DATE: 20180905 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N : HER MAJESTY THE QUEEN – and – BRANDON MICHAEL BAKER

Counsel: Victoria Rivers for the Crown Alana Barnes for the defendant

HEARD: July 17, 2018

REASONS FOR SENTENCE

FAVREAU J. :

Introduction

[1] On May 18, 2018, I found Brandon Michael Baker guilty of three counts of trafficking crack cocaine and three counts of possession of the proceeds of crime.

[2] On July 17, 2018, I heard submissions from the Crown and from Mr. Baker's counsel on sentencing.

[3] This is my sentencing decision.

Circumstances of the offence

[4] Mr. Baker sold crack cocaine to an undercover officer on three separate occasions.

[5] In each case, the officer contacted Mr. Baker on his cell phone, after which he gave her a meeting location and then sold her the crack cocaine at the designated meeting points.

[6] The dates of the transactions, the quantities of drug and the amounts of money at issue are as follows:

a. 0.9 grams for $120 on October 10, 2015; b. 2.98 grams for $220 on October 13, 2015; and c. 0.66 grams for $60 on October 31, 2015.

Circumstances of the offender

[7] Mr. Baker is 31 years old.

[8] He lives with his girlfriend and her mother. He has a four year old son from a previous relationship, who does not live with him. He does not have a job and receives social assistance. His lawyer indicated that he is unable to work due to ongoing epilepsy. After the sentencing submission hearing, I received a note from Mr. Baker’s doctor through his lawyer, indicating that Mr. Baker’s seizures have recently increased, that he is otherwise healthy, increasing his medication and urging Mr. Baker to comply with his medication requirements.

[9] Mr. Baker has a criminal record that arises from four sets of convictions between 2007 and 2010. None of the convictions was drug related. They were for possession of a firearm, fraud under $5000, failing to comply with a probation order, and, most recently in 2010, aggravated assault, robbery and again failing to comply with a probation order. While the earlier convictions resulted in minimal custodial time, Mr. Baker spent 8 months in custody and 2 years on probation as a result of the 2010 convictions for aggravated assault, robbery and breach of probation.

[10] Mr. Baker did not spend any time in custody while awaiting trial in this matter.

Position of the parties

[11] The Crown seeks a total sentence of 12 months in custody broken down as follows:

a. 12 months for each count of trafficking; b. 4 months for each count of possession of the proceeds of crime; and c. all sentences to be served concurrently such that the total sentence would be 12 months in custody.

[12] Mr. Baker's counsel submits that a total custodial sentence of 9 months is appropriate in this case.

Sentencing objectives

[13] As set out in section 719 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing "just sanctions" that reflect one or more of the traditional sentencing objectives, which include denunciation, general or specific deterrence and rehabilitation.

[14] The Criminal Code lists a number of principles to guide sentencing judges. The parity principle is set out in section 718.2 (b) of the Criminal Code, and it provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As noted in R. v. Mann, 2010 ONCA 342 at para. 17, the parity principle is not to be applied in an absolute fashion; given the highly individualized sentencing process, sentences imposed for offences of the same type will not always be identical.

[15] The totality principle is addressed by section 718.2 (c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender (R. v. C.A.M., [1996] 1 S.C.R. 500 at para. 42).

[16] The restraint principle is reflected in both ss. 718.2(d) and (e). As the court explained in R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at para. 95, the restraint principle is of paramount importance where incarceration is a potential disposition.

[17] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Aggravating and mitigating circumstances

[18] In determining the appropriate sentence, I must consider aggravating and mitigating circumstances.

[19] While the quantities of drugs sold in this case were not large, the nature of the substance at issue is an aggravating factor. In [R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 9], the Court of Appeal noted that "crack cocaine is an extremely dangerous and insidious drug with potential to cause a great deal of harm to individuals and to society" and that possession of crack cocaine for the purpose of trafficking is a “serious offence”. In this case, Mr. Baker's offence was not an isolated incident, but rather he sold the drugs on three separate occasions to the undercover officer. In addition, there is no evidence that Mr. Baker himself consumed crack cocaine or that he sold the drugs to support a drug habit. Rather, he evidently sold the drugs for profit, to supplement his social assistance.

[20] Another aggravating factor is Mr. Baker's criminal record. While the last conviction dates go back to 2010 and none of the convictions were drug related, the record does show escalation in the nature of Mr. Baker's offences, the last one being for aggravated assault and robbery.

[21] Mr. Baker's lawyer urged me to find that Mr. Baker's epilepsy is a mitigating factor. In my view, Mr. Baker’s medical condition does not mitigate the circumstances of the offence nor does it assist me in assessing his prospects of rehabilitation.

[22] I do find that Mr. Baker's relationship with his girlfriend is somewhat of a mitigating factor. She was a witness at trial, and is clearly supportive of Mr. Baker and his wellbeing. This suggests that when released from custody, Mr. Baker will have a supportive environment to which he can return.

Sentences imposed in other cases

[23] In deciding on the appropriate sentence in this case, I must consider sentences imposed in similar circumstances to ensure that the principle of parity is met.

[24] In Woolcock, the appellant was found guilty of possession of crack cocaine for the purpose of trafficking. The amount at issue was approximately 5 grams. The Court of Appeal stated that the "range of sentence for this type of offence appears to be 6 months to 2 years less a day". The Court also noted at the same paragraph that "the cases that fall at the higher end of this range involved either larger quantities of narcotics or offences committed while the accused was on probation for a similar offence." In that case, the Court reduced the trial judge's sentence of 2 years less one day to 15 months on the basis that the trial judge had failed to consider the principle of rehabilitation.

[25] In R. v. Radasso, [1994] O.J. No. 1990 (C.A.), at para. 12, the Court of Appeal also stated that the sentencing range for offences of this nature is 6 months to 2 years. In that case, the Court upheld a sentence of 12 months where what was at issue was the sale of ½ ounce of cocaine by a first time offender.

[26] In R. v. Butters, 2017 ONCA 973, the trial judge had imposed a 12 month sentence on the appellant in relation to a one time sale of 0.2 grams. The Court of Appeal reduced the sentence to 6 months, finding that the trial judge had failed to consider that a very small amount of crack cocaine was involved, that there was a single transaction and that the appellant had made significant progress in turning his life around.

[27] Accordingly, it appears that the range of sentencing for this type of offence is 6 months to 2 years, with 6 months being appropriate for very small amounts involving a single transaction and the higher end of the range being appropriate for somewhat larger transactions. Other factors considered by the courts include the prospects of rehabilitation and the offender’s record.

Appropriate sentence in this case

[28] As referred to above, given the nature of the substance involved and its negative societal impact, the paramount objectives of sentencing for offences involving the trafficking of crack cocaine are denunciation and deterrence. However, rehabilitation is also to be considered.

[29] In this case, while the amount at issue is not large, it is nevertheless significantly larger than in Butters. In addition, Mr. Baker's sale to the undercover officer was not an isolated incident. There were three separate transactions. Furthermore, Mr. Baker was not a user or an addict, but rather was selling for the purpose of making money. Finally, Mr. Baker is also not a first time offender.

[30] In terms of rehabilitation, Mr. Baker's strong relationship with his girlfriend does suggest some prospect of rehabilitation.

[31] Nevertheless, I am concerned that the 9 month sentence proposed by Mr. Baker's lawyer does not reflect an appropriate sentence in the circumstances of this case. I am also concerned that anything less than 12 months does not sufficiently address the seriousness of the offence.

[32] Accordingly, I find that 12 months in custody for the trafficking convictions and 4 months for the possession of proceeds of crime convictions are appropriate sentences in this case. These sentences are proportionate to the gravity of the offences, reflect the aggravating and mitigating circumstances, and satisfy the objectives of denunciation and deterrence while taking account of the prospects of rehabilitation.

[33] Both the Crown and the defence agree that the sentences should be served concurrently. I agree. In my view, Mr. Baker's offences arise from a continuing criminal operation and imposing consecutive sentences would be unduly disproportionate and harsh in the circumstances: R. v. Gummer, [1983] O.J. No. 181 (Ont.C.A.) at para. 13.

Conclusion

[34] Accordingly, I sentence Mr. Baker to a global sentence of 12 months in custody, broken down as follows:

a. 12 months for each of the trafficking convictions; b. 4 months for each of the possession of proceeds of crime convictions; and c. All sentences are to be served concurrently.

[35] In addition, I make the following ancillary orders:

a. Pursuant to section 109 of the Criminal Code, I order that Mr. Baker is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and that he is prohibited from possessing any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for 10 years; b. I order that a DNA sample be given pursuant to section 487.051(3) of the Criminal Code, as Mr. Baker has been convicted of a secondary designated offence and I am satisfied that it is in the best interests of justice to make such an order having regard to the nature and circumstances surrounding the offense and the minimal impact that it will have on Mr. Baker’s privacy and security of the person; and c. Pursuant to section 737(2) (b)(ii) of the Criminal Code, Mr. Baker is to pay the victim surcharge of $200 for each indictable offence for a total of $1,200. This amount is to be paid within 14 months of today’s date.

FAVREAU J.

RELEASED: September 5, 2018