COURT FILE NO.: CR-18-872
DATE: 2019 12 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
S. Weinstock, for the Crown
- and -
DWAYNE WILLIS
M. Macchia, for the defence
HEARD: November 21, 2019 at Brampton
REASONS FOR SENTENCE
André J.
[1] Mr. Dwayne Willis pled guilty to the offence of possession of 6.2 grams of heroin and fentanyl for the purpose of trafficking. The Crown seeks a sentence of four years imprisonment less time served in pretrial custody while counsel for Mr. Willis seeks a sentence of time served and two years probation.
BACKGROUND FACTS
[2] The police stopped a vehicle in which Mr. Willis was a passenger. They recovered a significant quantity of drugs within a backpack on the back seat of the vehicle and a small quantity of heroin mixed with fentanyl in Mr. Willis’ underwear. In a subsequent trial which ended on July 26, 2019, I acquitted Mr. Willis of the offences related to the illegal drugs found within the car but convicted him of the offence related to the 6.2 grams of heroin/fentanyl found on his person.
THE CROWN’S POSITION
[3] The Crown submits that the appropriate sentence range is 5 to 9 years incarceration and that the following aggravating factors justify his position:
(1) Heroin and fentanyl are very addictive and have caused untold havoc on the society.
(2) Mr. Willis is a recidivist who has a long criminal record, which includes numerous convictions for illegal drugs.
(3) Mr. Willis has not shown any remorse.
DEFENCE POSITION
[4] The defence relies on the following mitigating factors to justify its position:
(1) Mr. Willis has spent 154 days in pretrial custody and should receive credit of 231 days or 7.5 months for it.
(2) Mr. Willis has been on a strict bail from October 2017 and has not committed any further offences.
(3) Mr. Willis has been addicted to heroin since 2012 following the tragic drowning of a stepson in Puerto Rico.
(4) Mr. Willis is gainfully employed as a hair stylist and has a job offer to work as an elevator operator on a construction site.
(5) Mr. Willis has donated one hundred hours of his time to a non-charitable organization.
(6) Mr. Willis has a lot of community support evidenced by the reference letters filed on his behalf.
ANALYSIS
[5] Pursuant to s. 718.1 of the Criminal Code, 1995, c. 22 , s. 6, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Determining a proportionate sentence therefore involves an assessment of the aggravating and mitigating factors in the case.
[6] The aggravating factors are as follows:
(1) The fact that the fentanyl accounted for a mere one percent of the drugs found on Mr. Willis, does not diminish the fact that Mr. Willis was in possession of a very addictive and dangerous drug cocktail which was wreaked considerable havoc on the community.
(2) Mr. Willis has a long record from 1996 to 2014 which encompasses over thirty convictions, ten of which were for drug related offences. He has been convicted of importing a controlled substance, conspiracy to traffic in a controlled substance and possession for the purpose of trafficking and on three occasions, has received a penitentiary sentence of two years for the latter offence.
[7] That said, there are many mitigating factors in this case. Mr. Willis pled guilty, is gainfully employed, has support in the community and has been on bail for a lengthy period. The 42 year old accused has lived on his own in Canada since he was sixteen years old. While Mr. Willis claims to have become addicted to heroin in 2012, many of his drug convictions precede this date. For example, he was convicted of importing a schedule II controlled substance in 1999, trafficking a schedule I substance in 2001, possession of a schedule I substance and possession for the purpose of trafficking in 2007 and on two occasions in 2008, was convicted of possession for the purpose of trafficking in illegal drugs. I therefore view Mr. Willis’ assertion that he became addicted to heroin in 2012 with some skepticism.
[8] The Crown justifies its position on three cases namely R. v. Prestula, 2018 ONSC 4214; R. v. Cinelli, 2018 ONSC 4983 and R. v. Pimentel, 2004 CanLII 53604.
[9] In Prestula, the court sentenced an offender who had pled guilty to possession of 13.7 grams of fentanyl, trafficking a ½ kilo of cocaine and possession of 84.2 grams of cocaine to concurrent sentences of five years and three months custody less credit for pre-sentence custody of 42.5 months. The accused in this case had previously served seven years for previous convictions.
[10] In Cinelli, the accused pled guilty to two counts of possession of 63 grams of heroin for the purpose of trafficking and one count of possession of 20 grams of fentanyl for the purpose of trafficking. The court imposed a concurrent sentence of seven years custody.
[11] In Pimentel, Hill J. sentenced an offender who was convicted of possession of 5.1 grams of heroin for the purpose of trafficking following a trial, to five years imprisonment less pretrial custody.
[12] The facts in Prestula and Cinelli are more serious than that in this case. Pimentel involved a smaller quantity of drugs than the case at bar but the facts were more aggravating in that case given that the authorities discovered 22 mag envelopes of heroin in Mr. Pimentel’s trousers while he was being held in a courthouse cell.
[13] Counsel for Mr. Willis relies on a number of cases in support of her position, the most important being R. v. Toole, [2017] O.J. No. 2340; R. v. Klammer, [2017] O.J. No. 2605 and R. v. Smith, 2017 BCCA 112, [2017] B.C.J. No. 471.
[14] In Toole the police recovered 5,100 mg. of fentanyl pouches in the accused’s apartment. The accused was convicted of possession for the purpose of trafficking fentanyl and sentenced to four years imprisonment. On appeal, the court reduced the sentence to three years imprisonment largely because the appellant was found to have been a drug addict.
[15] In Klammer, the court convicted a first offender who had been convicted of trafficking fentanyl; possession for the purpose of trafficking in fentanyl and proceeds of crime to 33 months in custody. On appeal, the court reduced the sentence to 20 months custody largely on account of his drug addiction and the need for him to seek treatment for his drug addiction and mental health issues.
[16] In Smith, the British Columbia Court of Appeal affirmed a six month custody sentence imposed on an offender found to have been in possession of 13 flaps of fentanyl, 18 flaps of powdered cocaine and several rocks of cocaine. However, the majority held that given the public health crisis associated with illicit fentanyl consumption the appropriate sentencing range should be 18 to 36 months imprisonment. Mr. Smith had no criminal record, had been employed most of his adult life and his involvement in the drug trade had been recent and had been driven in part by an addiction to codeine.
[17] In my view, these cases confirm that the sentence proposed by the Crown is excessive. Klammer is distinguishable largely because the offender had no criminal record. On the other hand, Mr. Willis is a repeat offender who has received a penitentiary sentence on three separate occasions for drug related offences. Similarly, in Smith, the accused was a first offender whose involvement in the illegal drug trade had been quite recent. Mr. Willis however, has been involved in the illicit drug trade for many years and has a lengthy related criminal record.
[18] Mr. Willis claims that he has had a drug addiction for many years. However, he has not sought any treatment for his addiction and has continued to be involved in the drug trade. To that extent, Mr. Willis is not entitled to a significant sentence discount on account of any drug issues he may have.
[19] In my view, the appropriate sentence in this case, after considering all the relevant factors is one of 2 ½ years imprisonment less pretrial custody of 154 days for which Mr. Willis will receive credit of 7.5 months. He must therefore serve an additional 22.5 months in custody.
ANCILLARY ORDERS
(1) s. 109(2)(a) order for 10 years; and
(2) s. 109(2)(b) order for life.
André J.
Released: December 17, 2019
COURT FILE NO.: CR-18-872
DATE: 2019 12 17
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
DWAYNE WILLIS
REASONS FOR SENTENCE
André J.
Released: December 17, 2019