COURT FILE NO.: CR-22-018 (Walkerton)
DATE: 2024-10-28
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
His Majesty the King
-and-
Kristopher Vandonkersgoed
B. Lawson, for the Crown
S. Newbould, for Mr. Vandonkersgoed
Heard: October 22, 2024
Justice. R. Chown
REASONS FOR Sentence
Introduction
[1] I convicted Kristopher Vandonkersgoed of possession of methamphetamine for the purpose of trafficking, contrary to s. 5(1) of the Controlled Drugs and Substances Act (CDSA) (2024 ONSC 1644). I am now required to sentence him for this crime.
[2] The Crown’s position is that five years is the appropriate sentence.
[3] The defence position is that the appropriate sentence is 30 months to 3 years.
Principles of Sentencing
[4] Under the Criminal Code, s. 718,
The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.
[5] Under s. 718.1, it is a fundamental principle that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[6] Section 10(1) of the CDSA also deals with the purpose of sentencing. It states:
Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.
Circumstances of the Offence
[7] When he was arrested, Mr. Vandonkersgoed was a passenger in a 2012 green Ford F150 pickup truck owned and driven by Greg Benninger. Police found a kilogram (to be exact, 1009.5 grams) of methamphetamine in a plastic bag in the footwell of the front passenger seat of Mr. Benninger’s truck, where Mr. Vandonkersgoed had been sitting and where his feet would have been.
[8] In addition to the one-kilogram amount, police found 31 grams of methamphetamine inside a Dove container which was inside a gym bag in the back footwell. They also found a small baggie in the centre console of the truck, later confirmed to be 9.4 grams of methamphetamine. I did not make a specific finding that Mr. Vandonkersgoed was in possession of these two smaller amounts. To be clear, I am sentencing Mr. Vandonkersgoed on the basis that he was found to be in possession of one kilogram of methamphetamine for the purposes of trafficking.
[9] I am advised that Mr. Benninger pled guilty and received a sentence of four years, although I do not have a copy of the reasons for sentence in that case.
[10] Ms. Newbould has correctly pointed out that although I made a finding that Mr. Vandonkersgoed was in possession of the one-kilogram amount, I have no evidence of who arranged the purchase, who financed it, or what the plan was for marketing the methamphetamine. Ms. Newbould says it could be that Mr. Benninger played the primary role and Mr. Vandonkersgoed played a minimal role. She says that I cannot conclude that Mr. Vandonkersgoed was the “brains of the operation” or that he was a high-level commercial trafficker. She points out that no money was seized and there is no evidence of other indicia of trafficking such as scales, baggies, debt lists, or weapons. Mr. Vandonkersgoed’s fingerprints were not found on the bag containing the drugs. Ms. Newbould argued that there is no basis to think that Mr. Vandonkersgoed did more than assist with the pickup.
[11] The Crown has the obligation to prove aggravating factors beyond a reasonable doubt. The Crown did prove that Mr. Vandonkersgoed was in possession of a kilo of methamphetamine for purposes of trafficking. I agree that there is no evidentiary basis to conclude Mr. Vandonkersgoed was a high-level trafficker in the sense that he was a “practiced” or “frequent” trafficker, or even that he had ever done this before. With that said, the one-kilo amount has been established beyond a reasonable doubt, and that is a large and high-value amount.
Failure to Attend Sentencing
[12] Mr. Vandonkersgoed did not attend the hearing on June 25, 2024 that was set for sentencing submissions. I issued a warrant for his arrest. He was arrested and has been in custody for the last 42 days. I am advised that he faces a charge for his failure to attend. I am not considering his failure to appear to be an aggravating factor or otherwise taking it into consideration in sentencing him today.
Circumstances of the Offender
[13] Mr. Vandonkersgoed is 37 years old. He has no criminal record.
[14] Mr. Vandonkersgoed was born and raised in Palmerston. A presentence report (“PSR”) indicates that Mr. Vandonkersgoed’s father was on the local fire department and is now a local business owner. His parents separated when he was an adult, and his mother moved out of the province and is now re-married. He has one older brother. He had an idyllic childhood. He started to have a substance use issue (including methamphetamine) in his adolescence. He started a college program in Ontario but moved to British Columbia in 2006. It is not fully clear to me, but it appears he was in B.C. for one, or possibly two, winters. He told the parole officer he abstained from methamphetamine while he was in B.C.
[15] Mr. Vandonkersgoed has fathered four children but does not have an active parenting role with any of them.
[16] The PSR states that Mr. Vandonkersgoed “has struggled to maintain employment for any length of time.” I do not have detailed evidence about Mr. Vandonkersgoed’s employment at the time of the offence. It has not been established that he had no employment or other means of support, so I am not able to infer that he had been supporting himself through trafficking.
[17] The PSR also states:
The subject has been involved in methamphetamine use for approximately 20 years and credits the introduction to the drug to its prevalence in his hometown, as well as his negatively influential peers. When recounting his past years of substance use and the impact it has had on his life, the subject appears to regret the losses he has experienced, however, remains deeply entrenched in his cycle of harmful use. He presents as interested in change and rehabilitative measures, however, has used his potential incarceration as a reason for not initiating supports. Given the subject’s long history of harmful substance use and considering he remains in a harmful cycle of use, he would benefit from intensive supports including withdrawal management, education about the various strategies for change, and avoidance strategies.
[18] Mr. Vandonkersgoed has been unable to maintain a relationship with his children and unable to maintain employment. These factors, along with the other evidence available, strongly indicate that Mr. Vandonkersgoed has a serious addiction problem. Until he can address this problem, his life is likely to continue to involve significant and needless misery. The irony is that had he been undetected, his crime would have perpetuated that misery not only on himself but for many others in the community.
[19] In his allocution, Mr. Vandonkersgoed said that being in jail for the preceding 40 days had given him an opportunity to exercise and an opportunity for clear thinking. He said that he is “grateful” to be in his current circumstances because he believes that he will now be able to move forward with his life.
Aggravating and Mitigating Circumstances
[20] A principle that I must take into consideration is that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender: CCC s. 718.2(a).
1. Aggravating Circumstances
[21] The amount of methamphetamine is a significant aggravating factor. Mr. Vandonkersgoed helped bring thousands of doses to West Grey, a mostly rural, sparsely populated community. The harm that this amount of methamphetamine would have caused is substantial.
[22] The Crown submits that it is an aggravating factor that Mr. Vandonkersgoed has done nothing about rehabilitation from his addiction in over four years from the offence date. I do not agree that this is an aggravating factor. While it would have been a mitigating factor if Mr. Vandonkersgoed had shown a commitment to rehabilitation, it is not an aggravating factor that he has failed to do so.
2. Mitigating Circumstances
[23] It is a mitigating factor that Mr. Vandonkersgoed has no prior criminal record.
[24] Mr. Vandonkersgoed had six supporters present (in person or by videoconference) for his sentencing hearing, including his mother, father, stepmother, and brother. I was advised he and his brother have taken steps towards reconciliation. Strong family support is a mitigating factor because it may signal that the offender will be supported in efforts at rehabilitation.
[25] Addiction is somewhat of a mitigating factor in this case. It is well known that methamphetamine is powerfully addictive. The moral blameworthiness of an offender is attenuated when addiction issues underlay their actions: R. v. Hilbach, 2023 SCC 3, at para. 92.
[26] Ms. Newbould submitted that Mr. Vandonkersgoed is an addict trafficker and that is a significant mitigating factor. I am not aware of a definitive definition of the phrase “addict trafficker.” However, the Court of Appeal in one case appeared to accept a police witness’s description of an addict trafficker as someone who may purchase quantities of drugs that exceed personal use amounts and “piece off” the excess to others to acquire funds for further purchases: R. v. Truong, 2019 ONCA 364, at para. 6. In R. v. Azeez, 2014 ONCJ 311, at para. 3, the court described an addict trafficker as someone “whose dealings were largely animated by his need to finance his dependence on heroin,” as opposed to an entrepreneur. Other courts have referred to an addict trafficker as someone who sells drugs at a subsistence level: R. v. Nuziato, 2021 ONCA 300, at para. 4; R. v. Hibbert, 2022 ONCJ 650, at para. 28. Mr. Vandonkersgoed does not fit the criteria for an addict trafficker as described in the jurisprudence I have reviewed.
Sentences Imposed in Similar Offences
[27] Another principle that I must take into consideration is that an offender’s sentence should be similar to the sentences imposed on similar offenders for similar offences committed in similar circumstances: Criminal Code, s. 718.2(b).
[28] Ms. Lawson and Ms. Newbould have provided me with numerous sentencing decisions in cases involving possession of methamphetamine and other drugs for the purpose of trafficking. I have reviewed all the cases that were provided to me. The cases in the Crown’s book of authorities overlap considerably with the cases the Crown provided to me in R. v. Halk, 2022 ONSC 6855. I will not, in these reasons, review those cases, as it would be largely repetitive of my reasons in Halk.
[29] The Halk case has many features that are similar to this case. The drug in both cases was methamphetamine. The quantity in both cases was about the same. The age of the offender was similar. The community was the same. Indeed, the investigations of the two crimes intersected. And interestingly, in both cases the offender was in the passenger side of a vehicle with the methamphetamine at his feet when caught by police.
[30] As a result of the many similarities in the two cases, it is appropriate to rely heavily on the Court of Appeal’s decision in Halk, reported at 2024 ONCA 108. The case provides clear guidance that five years is the very low end of the range for this crime.
[31] Distinguishing features between the Halk case and this case include the fact that Mr. Halk pled guilty without a trial. This is a significant mitigating factor that is not present here. It is of course not an aggravating factor that Mr. Vandonkersgoed elected to have a trial, but it was a mitigating factor for Mr. Halk that is not present here. Another mitigating factor in Mr. Halk’s case was that while in prison awaiting trial, he had suffered severe conditions, equivalent to extensive near-solitary confinement due to lockdowns and COVID restrictions, and despite this he was productive in furthering his education. In this case, except for the last 42 days, Mr. Vandonkersgoed has not been in custody pending sentence.
[32] On the other hand, Mr. Halk had a significant criminal record going back to 2003, including a prior trafficking conviction, whereas Mr. Vandonkersgoed has no criminal record. That works to Mr. Vandonkersgoed’s advantage in comparing the two cases. Also, Mr. Halk had encouraged his co-accused to try to flee from police in the car they were in, and the evidence showed that Mr. Halk had purchased the methamphetamine, whereas I have no evidence of Mr. Vandonkersgoed’s specific involvement in this case.
[33] Ms. Newbould pointed me to two cases in her June 2024 submissions and two cases in her most recent submissions. Although they were not mentioned in oral submissions, I did review the two cases from the June 2024 submissions: R. v. Thiessen, 2017 ONSC 3925 and R. v. Rile, 2016 ONSC 7991. Thiessen is easily distinguishable but Rile has some parallels. The accused in that case was convicted by a jury of possession of methamphetamine for the purposes of trafficking. The amount involved was 554 grams. The accused was age 32. His life began to fall apart when a long-term relationship with his girlfriend ended. He became an addict. The Crown sought a sentence of five years. The court imposed a sentence of 30 months.
[34] In her oral submissions, Ms. Newbould pointed me to R. v. Okonta, 2020 ONSC 1412, where the offender was also a first-time offender and the quantities of drugs involved were somewhat similar to the amount here. Mr. Okonta was in possession of 876 grams of methamphetamine and 129 grams of cocaine. He received a sentence of three years.
[35] In R. v. Pham, 2016 ONSC 7943, the quantity involved was 523 grams of methamphetamine, and the offender had been convicted of both possession for the purpose of trafficking and producing the drug. He received a sentence of four and a half years, and Ms. Newbould submitted that Mr. Pham’s conduct was considerably worse than Mr. Vandonkersgoed’s conduct in this case.
Sentence
[36] Mr. Vandonkersgoed please stand.
[37] My goal is to determine a sentence that is legally correct. It must be fit and appropriate to the circumstances of this case. It is not my goal to give you a harsh sentence, but rather my goal is to determine the sentence that the law requires.
[38] At the beginning, I mentioned that the goals of sentencing include denunciation, deterrence, rehabilitation, and reparation. The law is clear that in a case like this, when I set the sentence, denunciation and deterrence are the most important objectives of the sentence. Rehabilitation plays a role, and it is something I have to consider, but it plays less of a role in trafficking cases.
[39] When I offered you a chance to say what you wanted to say before I determined your sentence, you spoke about your sentence being an opportunity to move forward.
[40] I think one of the things you may have meant is that your sentence will be an opportunity for forced abstinence from drugs. I want to warn you that drugs may be available in prison. They may be hard to get, and they are certainly contraband in prison, but you should not assume you will not be tempted to partake in illicit drugs while you are in prison. I hope for your sake that you will resolve never to use illicit drugs again, in prison or anywhere else.
[41] You also indicated that it is unfortunate you were not arrested earlier in your life. I understand what you meant, but you still have lots of life in front of you. I agree with the sentiment that you have an opportunity for a “reset” in your life and then, after your sentence, a chance to move forward. Ms. Newbould said you are someone who has a lot of potential and a lot to offer. In other words, she thinks there is a good chance for rehabilitation for you. I suspect she is right about that because this is your first offence, but it will depend on whether you can avoid illicit drugs. It is concerning that you have not done much over the last four years since you were charged to make me think you will be able to stop taking methamphetamine. Certainly, it will not be an easy road ahead for you. Still, I think there is a good chance for you if you can reset and stay away from drugs. It is also important that you find work when you are released from prison, and that will not be easy either. In addition, it is important that you rebuild your relationships with your family and accept support from them. They are likely to support you, but not if you return to taking drugs.
[42] I think you have a reasonably good chance at rehabilitation. However, because denunciation and deterrence are important considerations, even though there is some basis to think you will not re-offend, I am required to impose a substantial prison sentence. I am required to follow the law and I am bound by decisions of the Court of Appeal.
[43] I spoke a few minutes ago about the Halk case, and how similar it is to this case. The Court of Appeal said that five years is at the very low end of the range. It would be wrong for me not to follow the guidance that the Court of Appeal has given. Although there are some differences between the cases, the differences cut both ways. I am satisfied that your case should be judged at close to the low end of the range, but the mitigating factors do not take you below the low end of the range.
[44] After considering all the arguments and reflecting about this, I have determined that the correct sentence in this case is five years in prison.
[45] In addition, there shall be a s. 109 order for 10 years and life, and a secondary DNA order.
[46] Mr. Vandokersgoed will get credit at 1.5 to 1 for the 42 days he has served. I am not prepared to take judicial notice of the circumstances at CNCC to give enhanced credit.
Chown J.
Released: October 28, 2024