R. v. Sloboda Date:, 2013 BCPC 142

Citation: R. v. Sloboda Date: 20130124 2013 BCPC 0142 File No: 151416-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SCOTT WILLIAM SLOBODA REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P. D. GULBRANSEN Counsel for the Crown: J. Walker Counsel for the Defendant: M. Klein Place of Hearing: Surrey , B.C. Dates of Hearing: Feb. 28, Apr 10 , 12, 13, May 22, June 21, July 17, Sept. 6, 2012; Jan. 10 , 2013

Date of Judgment: January 24, 2013 [ 1 ] THE COURT : Scott Sloboda stands convicted of possession of cocaine for the purpose of trafficking. The events occurred seven years ago when police arrested him with four kilograms of cocaine in his vehicle. [ 2 ] He submits that he should receive a conditional sentence because he was a mere courier, he has no record, he has lived an exemplary life since his arrest and is not responsible for any of the trial delay. Incarcerating him now would be pointless. [ 3 ] The Crown disagrees, pointing out that there is no separate offence of being a drug courier. A person who knowingly transports large quantities of illegal drugs plays a vital

part in a lucrative criminal enterprise. The drugs that Sloboda possessed were worth about $120,000. The Crown therefore submits that the court must impose a sentence which denounces such crimes and which deters others from committing them.

The Crown says that Sloboda's lack of record and otherwise positive personal circumstances entitle him to be sentenced on the lower end of the range of sentences imposed by the courts in similar cases, thus the Crown submits that Sloboda should be sentenced to a prison term of three-and-one-half years. [ 4 ] There is no doubt that the most pressing objectives in sentencing persons convicted of possessing relatively large quantities of cocaine for the purpose of trafficking are denunciation and deterrence, particularly general deterrence.

The courts have generally imposed prison sentences well in the excess of two years in such cases, even for first-time offenders. [ 5 ] There have, however, been exceptions to that general rule where courts have found that are exceptional circumstances. For instance, courts have imposed conditional sentences where the court concludes that the moral culpability of the accused is relatively low, the offence is an isolated event in the accused's life, and it is very unlikely that the accused will reoffend.

Courts have found support for the latter two findings in cases where there has been a long delay between the offence date and the time of sentencing, for which the accused is not responsible and where the accused has remained free of criminal activity and has otherwise maintained a positive lifestyle during that time. CIRCUMSTANCES [ 6 ] On February 18th, 2006, some Surrey RCMP officers decided to watch the co-accused, Swales, because they knew he was a drug dealer. They watched Swales in his motor vehicle as he met with Sloboda, who was in his own vehicle. Eventually Swales drove off, with Sloboda following.

They took a very circuitous route to a nearby apartment tower. This was an attempt to detect surveillance, which of course did not work. Swales and Sloboda both parked their vehicles outside the tower. Swales went inside and a few minutes later, he emerged, carrying a duffle bag. Swales put the bag into the rear seat of Sloboda's vehicle. One of the police officers emerged from a hiding place nearby and arrested Sloboda at gunpoint. Swales fled away in his car, managing to elude the pursuing police cars. [ 7 ] Upon searching Sloboda's vehicle, the police found a duffle bag inside it.

There were four separate bricks of cocaine, weighing one kilogram each. [ 8 ] Further investigation revealed that the apartment where Swales had obtained the cocaine was a storage site for drugs and firearms. There was a very large safe in the apartment which contained 19 one-kilogram bricks of cocaine, substantial quantities of other illegal drugs, $270,000 cash, many handguns, both restricted and prohibited, as well as substantial quantities of ammunition and some silencers.

The police found more guns and ammunition under the couch. [ 9 ] Surveillance video of the lobby of the apartment showed that Swales had come and gone from the apartment several times that day, likely making deliveries of drugs. While there is no doubt that Swales was part of a large drug trafficking enterprise, there is no evidence that Sloboda had any other involvement with Swales that day, other than the meeting observed by the police. WHY WAS THERE SUCH A LONG DELAY? [ 10 ] Sloboda was charged with possession of cocaine for the purpose of trafficking.

Swales was charged with 28 counts, including possession of cocaine and the other drugs for the purpose of trafficking, as well as numerous firearms-related charges. When the Information was sworn, the police had not yet located Swales. [ 11 ] Sloboda retained counsel and his case was set down for a preliminary inquiry. Shortly before Sloboda's preliminary inquiry was to start, Swales turned himself in. The case had to be adjourned to allow Swales to instruct counsel to prepare his defence. [ 12 ] Mr. Bolton, who was Swales' lawyer, was also counsel on the case of R. v. Basi and Virk .

This was a lengthy, high-profile prosecution regarding political corruption. Mr. Bolton was unavailable for long periods of time because of the need for him to be at the proceedings against Basi and Virk. [ 13 ] Another delay occurred when Mr. Sloboda's lawyer accepted a position with the Crown. The case had to be adjourned to allow Sloboda's new lawyer to review the case and to prepare to represent Mr. Sloboda. [ 14 ] During all this time, both accused had re-elected to be tried by a Provincial Court and had made significant admissions. It took only a few days for the Crown's case to be completed.

Nonetheless, the case had to be adjourned for long periods of time to accommodate Mr. Bolton's duties in the Basi case. [ 15 ] Mr. Sloboda had indicated that he would not be calling a defence. Mr. Swales said that he was. Before he could do so, Swales suffered two serious strokes. At that point, counsel agreed to sever Sloboda's case from Swales', thus Sloboda's case was concluded in October of 2011 when I convicted him. Swales' case was completed afterwards. I also convicted him. He is yet to be sentenced. [ 16 ] Mr.

Sloboda's sentencing was adjourned a couple of times, once to allow his counsel to undergo a medical procedure.

[ 17 ] From the foregoing

summary, it is clear that Mr. Sloboda was not himself responsible for any of the lengthy delays in this case. He did apply for a stay of proceedings based on unreasonable delay, but I dismissed that application, essentially because I could not find that he suffered any significant prejudice. SENTENCING PRECEDENTS [ 18 ] Counsel referred to various cases involving roughly similar circumstances. I will deal with them in turn. Crown Cases [ 19 ] R. v.

Aslam 2007 BCCA 122 , the British Columbia Court of Appeal upheld a two-year sentence imposed by a trial judge for possession of 200 pounds of marihuana for the purpose of trafficking. The police had found this marihuana in the accused's vehicle after a traffic stop. The accused was 20 years old and had only a youth record. In addition to the marihuana in his car, the police found some papers in his possession which were directions for delivering the marihuana.

The court found that the trial judge was not in error when he refused to impose a conditional sentence because of the pressing need for a deterrent sentence. [ 20 ] The next case is R. v. Hein 2008 BCCA 230 , also a decision of our Court of Appeal. In that case, the court increased a 15- month sentence for possession of six-and-a-half kilograms of cocaine for the purpose of trafficking to a sentence of three years and eight months incarceration. The police had found the cocaine in a suitcase the accused brought with him to the airport on a flight to Toronto.

He was later kidnapped and beaten, probably by his so-called employers. Although he ultimately did not cooperate with the prosecution of his kidnappers, he did provide other useful information to the police. He was 30 years old and had a minor criminal record. There was some strong evidence that he had made significant efforts at rehabilitation; nonetheless, the Court of Appeal found that the trial judge's sentence did not properly address the pressing need for a deterrent and denunciatory sentence. [ 21 ] The next case is R. v. Mileo 2008 BCSC.

The police found, in that case, 50 kilograms of cocaine in a vehicle driven by the accused. He told them that he was paid $5,000 to deliver these drugs. He was 43 years old, with no record. He was remorseful and had strong family and community support. The trial judge sentenced the accused to three-and-a-half years in prison, despite the many positive features in the accused's circumstances. The court remarked that he was found in possession of a very large commercial quantity of cocaine.

The sentence imposed was required to both denounce and deter such criminal conduct. [ 22 ] The next case the Crown cited was R. v. Match and Virk 2012 BCSC 1492 . These two young men, aged 30 and 24, were arrested as they tried to carry 40 kilograms of cocaine in four bags from a location near the U.S. border near Chilliwack. Match had no criminal record, while Virk had a recent record for assault.

The trial judge found that the Crown did not prove that they were actually bringing the drugs across the border; therefore, he sentenced them on the basis that they were in possession of the drugs for the purpose of trafficking. They were transporting the drugs. The court remarked that they possessed a very large quantity of a very valuable illegal drug and therefore had high moral culpability. The trial judge sentenced them both to five-and-a-half years in prison. [ 23 ] The next case is R. v. Huber 2004 BCSC 1421 .

In that case, the accused was convicted of trafficking one kilogram of cocaine for $34,000 to an undercover police officer. He was 52 years old and had no record. He had a good work history throughout his life. He had a grown family, was respected in the community, and was remorseful. The sentencing took place seven years after the offence, mainly because the accused had appealed his first conviction and pleaded guilty at the retrial. After carefully reviewing the circumstances and the case law, Mr. Justice Ehrcke declined to order a conditional sentence.

In his view, the circumstances and the case law required that it was necessary to incarcerate the accused. He sentenced Mr. Huber to two years in prison. The accused had spent the equivalent of five months in pre-trial custody. Defence Cases [ 24 ] The defence also cited cases to me. The first was R. v. Kreutziger 2005 BCCA 231 . In that case, the Court of Appeal overturned a three-year sentence imposed for possession of cocaine for the purpose of trafficking, and substituted a conditional sentence order of two years less a day. The police found one kilogram of cocaine in a vehicle controlled by the accused.

The accused was 34 years old, he had no criminal record and he was remorseful. The trial judge found that he was unlikely to reoffend. Mr. Justice Oppal, as he then was, found that the trial judge had erred in treating the accused's not guilty plea and his post-offence conduct as aggravating factors on sentence. Mr. Justice Oppal stated that there were important extenuating circumstances in the case, the most importance of which were that seven years had passed from the date of the offence until the date of the appeal decision. The delay was not the accused's fault. Mr.

Justice Oppal found that it would be counterproductive to send this man to prison. [ 25 ] In her concurring reasons, Madam Justice Levine commented that the sentence imposed by the trial judge had been fit when it was imposed, but after the passage of seven years, she agreed that it would be counterproductive to incarcerate the accused. [ 26 ] The next case cited by the defence was R. v. Nesbitt 2012 BCCA 243 . In that case, the Court of Appeal upheld a conditional sentence imposed by the trial judge on an accused who had been found guilty of possessing 17 kilograms of cocaine for the purpose of trafficking.

He was 20 years old when he committed the offence. He had become acquainted with a drug dealer and was soon drawn into the false glamour of the drug world. He eventually began to allow the dealer to store drugs in his basement suite and to allow various persons to drop off and pick up cocaine from him. The accused was arrested after he had agreed to "make a drop" for the drug dealer. He was arrested in his vehicle as he was about to drive to his place with the drugs. He was cooperative with the police, giving them whatever he could about the drug-trafficking operation.

The police officers believed that he was naive. The trial judge found that it was very significant that the sentencing occurred six years after the offence had been committed. The accused was not responsible for any of the delay. The accused had done well on bail, was gainfully employed and supporting a common-law spouse and her two children. He had severed his connection with the drug dealer. Between the ages of 20 and 26, he had matured. It was unlikely he would reoffend.

As well, the psychological effects of the lengthy delay in the proceedings weighed heavily on him. [ 27 ] Madam Justice Levine, in her concurring reasons, suggested that the trial judge had somewhat underemphasized the depth of the accused's involvement in the drug business. She said that the judge had also incorrectly characterized the accused's possession of the drugs as being relatively brief. She noted that the accused had been arrested before he was able to take the drugs to their intended

destination. In her view, the justification for imposing a sentence that was outside the usual range lay in the fact that the accused had completely rehabilitated himself and that it was now more than six years since he committed the offence. She adopted the point made in Kreutziger that in such circumstances, it would be counterproductive to send Nesbitt to prison. She stated, at paragraph 43 of that judgment: The reason to require Mr. Kreutziger or the respondent to be incarcerated would be to satisfy the principles of denunciation and general deterrence.

It seems to me that as time passes after an offence has been committed, the denunciatory and deterrent impact of an individual's sentence on the community proceeds, and the outcome of the intercession of the justice system on the individual offender takes on primary importance.

Where, as here, an offender has, over a period of time after committing an offence become a fully rehabilitated productive member of society, sending that person to jail seems, as was said in Kreutziger , counterproductive. [ 28 ] Support for the approach taken in Nesbitt and Kreutziger can be found in the Alberta Court of Appeal case of R. v. Arcand 2010 ABCA 363 . That is not a drug case; however, in that case, the court heard an appeal by the Crown of a sentence imposed on an 18-year- old man for sexually assaulting a young woman. He had had sexual intercourse with her after she had passed out in the bedroom.

The trial judge imposed a 90-day sentence with probation. The appeal involved much more than just the question of the fitness of that particular sentence; thus, the Court of Appeal took about a year-and-a-half longer than would have been required to merely deal with the issue of the fitness of that specific sentence. In fact, the case deals, among other things, comprehensively and in a very learned fashion with the development of sentencing principles in Canada and the roles of Courts of Appeal in enforcing consistency in sentencing by trial judges.

In any event, the court ruled that the trial judge had made many errors in principle and varied the sentence to one of two years less a day. However, the accused had already completed his 90-day sentence, had completed all of the required community service work and also had completed a substantial portion of his probation term. The court also commented that the accused had played no

part in the long delay in the appeal being resolved. The court merely needed, in that case, all that extra time to prepare its comprehensive reasons. Thus, the court decided to stay the remainder of the accused's sentence despite the fact that the most important issue in the case was that of general deterrence. [ 29 ] Of the other cases cited to me by defence counsel, the case of R. v. Telford is apt, not so much for the legal principles discussed, but for the similarity in its facts to the case at bar.

In that case, Surrey RCMP officers observed the accused Telford get into a motor vehicle occupied by Swales, the co-accused in this case. The officers saw Swales place a brick of cocaine into a bag held by Telford. Telford got out of the car and was arrested soon thereafter with the one kilogram brick of cocaine in his possession. Telford told the police that Swales had offered to pay him $300 for making a delivery of the drug. The offence committed by Telford occurred in 1995, before Sloboda's offence, but the circumstances are somewhat similar.

When Telford was sentenced, the police had yet to locate Swales to bring him before the court on the current charges. The circumstances tend to support Sloboda's claim that he was offered $500 to deliver the drugs for Swales. CIRCUMSTANCES OF THE ACCUSED [ 30 ] The evidence presented at the sentencing proceedings suggest that this offence was out of character for the accused. His close acquaintances and his family, who all know him well, were shocked that he was charged with such a serious offence. [ 31 ] Mr. Sloboda is 30 years old. He was 24 years old when he committed this offence.

He is self-employed, working as a contractor installing high-speed internet for Telus. He has previously worked in the family business, selling and installing office furniture. [ 32 ] The many reference letters filed with the court speak of him as a hardworking, respectful, community-minded man. He comes from a stable, loving family.

Both his family members and friends were quite realistic about him; that is, they acknowledged that the crime he committed was a serious one and none of them exaggerates their description of his good qualities, nor do they minimize the seriousness of the offence that he has been convicted of. [ 33 ] Mr. Sloboda was a good athlete in his youth, and is still quite active. He has coached hockey for a number of years. He had a relationship with a woman and her young son for a number of years, but they have recently split up. He still keeps in touch with the young man that he lived with for those years.

He is now in a new relationship which appears to be stable. [ 34 ] There is no evidence that Mr. Sloboda lived anything but a normal lifestyle. There really is no evidence that he was the beneficiary of some large sums of money from the illegal activities, nor that he participated in what I would call the high-flying lifestyle that one sometimes sees with drug dealers. All of his reference letters suggest that he tends to associate with very good friends. WHAT ARE THE SIGNIFICANT ISSUES ON THIS SENTENCING? [ 35 ] The critical issues in this sentencing are the assessment of Mr.

Sloboda's level of moral culpability in committing a serious offence, and balancing that with the assessment of the extent to which the very lengthy delay in these proceedings can be taken as a mitigating factor. [ 36 ] While there is no specific victim who has suffered harm in this case, deterrent sentences are necessary in cases involving the traffic in illegal drugs, because the victim is really society as a whole. Cocaine is a very dangerous drug which has ruined many lives. Importantly, the traffic in illegal drugs threatens the fabric of Canadian society.

It is a lucrative business for some, but the whole economy, of course, is hidden. It is an untaxed, unregulated economy. As well, the whole drug trafficking industry encourages disrespect, if not contempt, for the legal system and for the rule of law. Much of the money made from drug trafficking fuels the activity of organized crime. [ 37 ] The jurisprudence does show discernible differences in sentences imposed for the various parties involved in the cocaine trafficking business; thus, the longest sentences are reserved for those involved in the high-level importation of cocaine.

As well, there is a high level of moral culpability attached to those who are involved in the distribution of very large quantities of cocaine once it has been imported. This holds true as well for those who traffic in large quantities, in the level of many kilograms at a time. Those who traffic in a level closer to single kilograms at a time of course commit a serious crime, but are not regarded as being at the same level of

moral culpability as an importer of a drug. Then of course there are those who actually traffic to the end users by breaking down larger quantities of cocaine into smaller packages and distributing them, often through their dealers in what is colloquially called a dial-a-dope operation. Those who actually distribute the drugs in those operations still bear a high level of moral culpability, but not nearly as high as the organizer of the business or the traffickers in larger amounts of cocaine. Then, of course, there are the end users.

They usually are regarded more with sympathy than condemnation. [ 38 ] It is apparent, looking at the various levels of the cocaine trafficking business, that someone is needed to transport the drugs at every level. That is why those who choose to transport cocaine in that context commit a serious crime. Nonetheless, there are discernible differences in the seriousness of those offences, depending on which level the transporter does his work.

For instance, those who transport very large quantities of cocaine, for example, at the level of 50 kilograms or up to 100 kilograms or more at a time, are almost certainly more deeply involved in the drug business than someone transporting a few kilograms. [ 39 ] In addition, it is relatively common for people without records to be recruited to be distributors. Where those persons have not become very deeply involved in the actual business by, for example, becoming a regular delivery driver for the business, they can be regarded as having a lower level of moral culpability than the more experienced couriers.

WHAT IS THE APPROPRIATE LENGTH OF PRISON SENTENCE IN THIS CASE? [ 40 ] The most significant factors in Mr. Sloboda's circumstances are as follows: 1. His committing this offence was an isolated act in an otherwise law-abiding life. It appears that he was only briefly involved with the co-accused, Swales. He was not known to the police and he was not known apparently as a close associate of Swales. For example, it is clear that he did not know where Swales stored the drugs and weapons. Swales had to lead him there. As well, there is no evidence that Mr.

Sloboda lived an antisocial lifestyle as a member of the drug culture. He has been employed most of his adult life and has distinguished himself as a hard worker. 2. Mr. Sloboda was not responsible for any of the delay in this trial; that is, he did not engage in stalling tactics or make strategic failures to appear or engage in obstructionist or specious trial tactics. 3. The lengthy trial delay has taken a psychological toll on him. This, however, should not be given too much weight because the delay has also worked to Mr.

Sloboda's advantage in that he has been able to conduct his life in a manner which conclusively proved that he has rehabilitated himself; that is, if he ever needed to be rehabilitated. 4. While it can be said that possession of the cocaine was brief, that is only because Mr. Sloboda was arrested before he was able to make the scheduled delivery; that is, the nature of his possession of his drugs is not made less culpable because of the brief time he actually had them in his possession.

The more important point is that it appears that this was an isolated transaction, albeit a serious one. [ 41 ] There are some significant differences between Mr. Sloboda's circumstances and those accused persons in the cases referred to me by the Crown: 1. In Aslan , the accused had no adult record, but did have a youth record for significant offences. As the court remarked, he was not truly a first-time offender. 2. In Hein , the accused also had a prior record and was not really a first-time offender.

He had refused to cooperate with the prosecution of the persons who had kidnapped him; that is, he appeared to be still obeying the code of silence that exists in the drug underworld. As well, he had created difficulties in the trial process by disappearing for a period of time and had to be arrested. He is far short of completely rehabilitating himself. 3. In Mileos , the accused possessed a very large quantity of cocaine, 50 kilograms, worth well over a million dollars.

This amounted to such a high quantity, worth so much money, that it is very difficult to believe that the accused was engaged in an isolated act. To be trusted with this much cocaine, it is almost certain that he was more closely involved in the drug dealing. 4. In Match and Virk , the accused had possession of 40 kilograms of cocaine, again, a very large, valuable quantity of drugs. They may not have been the actual importers of the cocaine, but they must have been the next link in the chain after the cocaine had been imported into Canada.

Once again, it is very unlikely that someone entrusted with cocaine worth so much money would somehow just casually or temporarily be brought into the business. 5. In Huber , the accused was convicted of actually trafficking in a kilogram of cocaine. This alone suggested he had a much deeper involvement in the drug business; that is, he would necessarily need contacts in the drug business and would have to go to the efforts to get a significant amount of cash to buy the drugs.

Secondly, he would have to actively seek out purchasers and know how to effectively transfer the cocaine to the purchaser and get paid for it. That is, he must have been an experienced member of the drug culture. 6. As well, both Mileos and Huber were middle-aged men, significantly older and more mature than Sloboda; that is, they had reached the stage in their lives where it is less likely that they made either an impulsive or foolish choice, in the sense that they should have known better. In Mr.

Sloboda's case, he was not a youth, but he was a much younger man, and the decision he made can be regarded as a less-considered decision. [ 42 ] For the following reasons, I conclude that there are exceptional circumstances in the case at bar which support imposing a sentence that is lower than the range of sentence usually imposed for persons convicted of possessing quantities of cocaine at the multi- kilogram level. Mr. Sloboda's involvement in the case was limited to the transporting of the drugs. He was not a trafficker.

His involvement was limited to a single transaction; that is, there is no evidence that he had any other involvement in the drug business. The lengthy delays in the trial were a burden on him psychologically.

[ 43 ] More importantly, during that period of time, he demonstrated that he was fully integrated in the community and was living a pro-social lifestyle, was employed and was a contributing member of society. His rehabilitation was somewhat easier than it is for others; that is, it was not necessary for him to defeat a longstanding drug addiction or to reform his life and become fully employed. Rather, it required him to realize, after he had been arrested, that he had taken a seriously wrong turn in his life and had to return to the straight and narrow path. He did so.

In other words, the evidence about the nature of his life both before and after the arrest reinforces the view that the offence is a truly isolated act. Mr. Sloboda was relatively young when the offence occurred. In my view, he has matured to the point where it seems unlikely that he would now, or ever again, be tempted by the false hopes of easy money by working in the drug business. [ 44 ] Mr. Sloboda's circumstances then are similar to the circumstances of Nesbitt and Kreutziger and Huber, in that a sentence of two years or two years less a day is warranted.

The next question, however, is whether a conditional sentence is appropriate. SHOULD THERE BE A CONDITIONAL SENTENCE? [ 45 ] Prerequisites to permit me to impose a conditional sentence exist. A fit sentence would be less than two years. There is no minimum sentence prescribed in the Controlled Drugs and Substances Act , at least there is no minimum sentence prescribed in 2006, which is the date upon which the applicable

section of the Controlled Drugs and Substances Act applies. There is a minimum sentence now. It would not endanger the community to have Mr. Sloboda serve the sentence in the community; the likelihood of him reoffending is minimal. [ 46 ] The issue becomes whether imposing a conditional sentence would be consistent with the fundamental purpose and principle of sentencing. The fundamental principle of sentencing is proportionality. That is set out in s. 718.1 of the Criminal Code and states: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

That balance or proportion in a case like Sloboda's tends to favour a conditional sentence. That conclusion is supported by the decisions of the appellant courts in Kreutziger and Nesbitt and, in a greater sense, in the case in Arcand . In those cases, the courts ruled that it was unnecessary to incarcerate accused persons where there were exceptional circumstances created by lengthy delays between the offence date and the date of sentencing and where the accused bore no responsibility for the delay. In those cases, the accused persons were first-time offenders and relatively young.

They had no prior criminal records. [ 47 ] During the long time between the offence date and the sentencing, they had substantially rehabilitated themselves, obeying all bail conditions and leading a law-abiding, productive life, or at least illustrating that they could. That circumstance, in turn, highlighted how isolated their offences were. Thus, the degree of responsibility of the offender was reduced somewhat, particularly in drug possession cases. This is so in the sense that the offenders had only a peripheral and relatively brief involvement in the business of drug trafficking.

Therefore, the balance that the court had to strike between the need for a deterrent sentence and the need to reflect the degree of responsibility of the offender shifted. [ 48 ] The courts placed more emphasis on the relatively low level of responsibility of the offender than on the need for a deterrent sentence. In that sense then, the two cases from the Court of Appeal, Kreutziger and Nesbitt, the judges remarked that it would be counterproductive to incarcerate those persons, because most of the goals in incarcerating someone had already been achieved.

That is, it was not necessary to protect society by isolating the accused. There is no need to provide some treatment to reform the accused, there is no need to provide the accused with the tools to become a law-abiding, productive citizen, there is no need to confine the accused to a prison for a distinct period of time to make him realize that any further offences would result in even harsher punishment.

Presumably, these are some of the factors that prison authorities might take into account considering eligibility for parole. [ 49 ] In such circumstances as those in Kreutziger and Nesbitt, a conditional sentence will be consistent with the goals and principles of sentencing. So it is with Mr. Sloboda. He is a first-time offender, his involvement in the drug trafficking business is restricted to a single transaction where he was paid to transport the cocaine. It was truly an isolated event in his life.

He has proven over the many years since his arrest that he is a law-abiding, hardworking person who is well integrated into the mainstream of society. His decision to become involved with drug trafficking was a mistake which he is unlikely to repeat. [ 50 ] In my view then, a fit sentence in this case, because there are exceptional circumstances, is a conditional sentence of two years less a day. [ 51 ] Stand up, please, sir. You have heard what I have had to say. No judge can predict the future perfectly.

It seems to me that you have proven that you are someone who made a mistake, as opposed to someone who is just trying to pull the wool over my eyes. I hope you realize this is an enormous break, but I think you deserve it. [ 52 ] THE ACCUSED: Thank you. [ 53 ] THE COURT: So it will be a conditional sentence of two years less a day. [ 54 ] The statutory terms are to keep the peace and be of good behaviour, appear before the court when required to do so by the court.

You must report to a supervisor within two working days, and thereafter as directed by the supervisor. [ 55 ] You must remain within British Columbia unless you have written permission from the court or the supervisor to leave British Columbia. [ 56 ] You must notify the court or supervisor of any change of name, change of address or change of occupation. [ 57 ] While you are on the conditional sentence, you must abstain from the consumption or possession of drugs, except in accordance with a medical prescription.

[ 58 ] I am going to impose a curfew. For the first year of this conditional sentence, you will be on a curfew. You must be inside your home and must not be outside your home between the hours of 8:00 p.m. to 6:00 a.m. daily seven days a week. You must not be outside your home during those hours unless you have the written permission of your supervisor or it is for a medical emergency. After the first year of the conditional sentence, there will be no curfew. [ 59 ] I am going to order that you must perform 60 hours of community service work under the supervision of and to the satisfaction of your supervisor.

Those community service work hours must be done by the end of the sixth month of your conditional sentence. I want you to do the community service work because I think you have got a lot to offer, and I advise you to get it done as quickly as you can. A lot of judges order many, many hours. In a case like yours, it might be hundreds of hours. I think that is not productive.

I want you to continue with what you are doing, continue working and being the person you have become, but if you do not do those hours, and you come back and tell me you cannot do 60 hours in six months, I will have trouble believing that. [ 60 ] That is basically the terms of the conditional sentence.

I am as confident as I can be, I cannot predict the future perfectly, but the real point of this conditional sentence is , if you commit another crime, you will be arrested, the Crown will bring you back over there and they will tell me to keep you in jail on this charge and you will get a consecutive sentence on any other crime you commit. So it is a way of just bringing home to you again what has happened over these last seven years, that you are sort of on really thin ice and you have got to behave yourself perfectly.

Right? [ 61 ] THE ACCUSED: Yes, Your Honour. [ 62 ] THE COURT: I order that you pay a $500 victim fine surcharge. I will give you to September 30th, 2013, to pay that. [ 63 ] I direct that DNA samples may be taken from you by the police. You have to go to the Surrey RCMP station right across the street, and I would suggest January 31st by 3:00 p.m. to provide those samples. [ 64 ] Under s. 109 of the Criminal Code , I prohibit you from possessing any of the weapons named therein for a period of ten years. Those are guns and bullets, but it means every other weapon you can think of.

You did not strike me as a man who possesses guns. Do you have any guns? [ 65 ] THE ACCUSED: No, sir. [ 66 ] THE COURT: All right. Well, you cannot have any such weapons for ten years, and if you have weapons in your possession, it includes stuff like hairspray, and you probably do not, but if you have forgotten something, it has got to be turned over to the Surrey RCMP within 24 hours. (REASONS FOR SENTENCE CONCLUDED)