R. v. Bears and Raccio, 2013 BCSC 478

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bears and Raccio, 2013 BCSC 478 Date: 20130222 Docket: 25569-2 Registry: Vancouver Regina v. James Raccio Michael Bears Before: The Honourable Mr. Justice Myers Reasons for Sentence Counsel for the Crown: Cathryn W. Bruce Counsel for James Raccio: Herbert Chambers Counsel for Michael Bears Michael D. Smith Place and Date of Hearing: Vancouver, B.C. January 18, 2013 Place and Date of Sentencing: Vancouver, B.C.

February 22, 2013 [ 1 ] On April 2, 2012 the accused were convicted of possession of 10 ounces (283.5 gms) of cocaine for the purposes of trafficking. The offence date was April 23, 2009. I had previously sentenced Mr. Bears pursuant to a joint submission. I am now dealing only with Mr. Raccio. [ 2 ] In my reasons for conviction I outlined the surveillance of Mr. Raccio which showed driving patterns that indicated he was attempting to avoid detection. [ 3 ] The circumstances also show that Mr. Bears was the subordinate in the relationship. The only inference from the evidence is that Mr.

Raccio negotiated the cocaine transaction with Mr. Della Pena in the Keg and that Mr. Bears collected the cocaine from Della Pena's car at the direction of Mr. Raccio. Further, there is the video showing Mr. Raccio directing Mr. Bears to remove a rat from the grill of his car. [ 4 ] Both from the amount and value - $22,000 at street level - of the cocaine and the evidence from the police observation of Mr. Raccio leading up to his arrest, Mr. Raccio was involved at the distributor level of the drug trafficking chain (i.e. one level above the street level), or at both distribution and street levels. [ 5 ] Mr.

Raccio is 46 years old. He is in a common law marriage and has two children who are 12 and 15. [ 6 ] Mr. Raccio has some years of high school education - it is not clear which ultimate grade he completed. For the past seven years, his legitimate source of income is from a small landscaping and snow ploughing business with his wife.

Prior to that, he worked seasonally for West Vancouver Parks & Recreations and for North Vancouver Parks & Recreation. [ 7 ] He has five prior convictions: 1998 Public Mischief 7 days & $350 1996 Possession of a narcotic $2,000; 3 months; probation 2 years 1998 Possession of a scheduled substance (2 charges) $250 on each charge 1999 Possession of prohibited weapon $200 & firearms prohibition for 2 years [ 8 ] Mr. Raccio started smoking marijuana and drinking when he was in grade 10. In his twenties he began using cocaine and throughout his twenties he was a heavy user of crack and powder cocaine.

While his cocaine use has gradually declined he still uses it

on a social basis. Many of Mr. Raccio's associates in the Squamish area are drug abusers. [ 9 ] In 2004 Mr. Raccio began taking OxyContin recreationally and he became addicted to that. He obtains it illegally. In the summer of 2012 his doctor prescribed morphine in order to reduce Mr. Raccio's dependence on OxyContin. [ 10 ] Mr. Raccio says his drug transactions were done so that he could procure OxyContin. He claimed that when he was arrested he was transporting the cocaine in exchange for 50 OxyContin tablets. (No tablets were found on him or in his vehicle or on Mr.

Bears; however, a prescription for OxyContin in the name of Robert Della Pena was found.) [ 11 ] The pre-sentence report notes that he takes full responsibility for his offence. [ 12 ] In October 2012 (after a pre-sentence report was prepared) he completed a withdrawal management programme. [ 13 ] His pre-sentence psychological assessment states that he was candid about his substance abuse problem and seemed genuine in his desire to change.

The report said: He would, therefore, benefit from a substance abuse treatment program that includes a focus on teaching more adaptive emotion and physiological regulation strategies. It will be important to keep Mr. Raccio's lowered cognitive functioning in mind in providing such services. Highly psycho-educational programs or programs requiring a lot of reading and writing are not likely to be of much benefit. Substance abuse programs are available in the provincial and the federal correctional systems and in the community. If supervised in the community, Mr.

Raccio would be most likely to succeed if placed in a long-term residential substance abuse program followed by assertive supervision and follow-up maintenance/relapse prevention services. Such programs may be available through the Burnaby Centre for Mental Health and Addictions or through the Squamish Mental Health Team. However, even if in a residential program, treatment is still likely to be challenging given the complexity of his clinical picture. [ 14 ] The pre-sentence report said this about drug rehabilitation: According to Dr. Stetzl, a medical detox is likely the only way to get Mr.

Raccio off his physical - dependence to opiates. Mr. Raccio understands he would likely require detox followed by residential treatment to properly get clean, and presented himself as somewhat willing and ready to complete these necessary steps to combat his dependence. However, after speaking with both his physician and his spouse, getting Mr. Raccio to follow through with a treatment program will likely be difficult. Ms. Herity, also expressed her desire that he get treatment for his addiction to opiates, saying that it has caused much strain on their relationship with her and their kids. Mr.

Raccio's drug addiction appears to be the primary factor in his involvement with criminal justice system. [ 15 ] The psychologist assessed Mr. Raccio as having significant cognitive impairment, and said that his test results were consistent with mild mental retardation. [ 16 ] The Crown asks for a custodial sentence of 30 months. It highlights the factors of denunciation and general and specific deterrence and the fact that Mr. Raccio was more than a street-level dealer. The cases on which it relies show a range of sentencing for mid-level cocaine or meth distribution of two years less a day to 30 months.

Those cases all spoke about the scourge of drugs and drug trafficking and concluded that conditional sentences were not appropriate. [ 17 ] For example, in R. v. Huber , 2004 BCSC 1421 , the accused was convicted of trafficking 1 kg of cocaine (an amount larger than the case at bar). At para. 45 Ehrke J. said: ... Trafficking in cocaine is an offence with real victims. It has disastrous consequences for those who are the end users.

Sale of large quantities of cocaine at the wholesale level must be deterred by the imposition of sentences that will make people ... think twice before engaging in such socially damaging conduct for motives of greed. He sentenced the accused to two years' imprisonment after credit of the equivalent of five months served. The accused had no prior record. [ 18 ] In R. v. Hardenstine , 2010 BCSC 1201 , the accused was convicted of three counts of trafficking; one with respect to cocaine, and the other two for ecstasy and marijuana. The amounts are not stated in the judgment.

Savage J. again referred to the detrimental effects of drug trafficking, and emphasized the need to take deterrence into account in sentencing, as well as the individual circumstances of the accused, which he found to be unfortunate. He commented that the accused was at a crossroads, and had to change his life, and therefore concluded federal time was necessary. The accused was 30 years old and had a lengthy record. On the cocaine charge the accused was sentenced to 30 months' imprisonment. Savage J. referred to R. v. Francis , 2008 BCCA 309 , to which I have also been referred.

In that case the Court of Appeal quoted with approval the trial judge's comments with respect to the negative effects of methamphetamine trafficking and use. [ 19 ] In R. v. Sandher , 2008 BCSC 263 , the accused pleaded guilty to four counts of trafficking cocaine in a dial-a-dope operation. The total sale was five ounces. The accused was 28 years old and had no criminal record. Bennett J. (as she then was) referred to the significant impact on the community of dial-a-dope operations, and in turn quoted from R. v. Franklin , 2001 BCSC 706 .

She said: 54 A conditional sentence order is not appropriate in this case. It would not achieve the important principles of denunciation and general deterrence. The community is entitled to denounce unlawful conduct and that is reflected in sentencing. I have already read extensively from R. v. Proulx where the Chief Justice discussed the role of denunciation in sentencing. 55 Further, a great deal of money is available in the drug trade even for people operating at Mr. Sandher's level. If lenient sentences are the standard, then there is no incentive to stop involvement in the trade for many people.

Thus, general deterrence is also important. Indeed, in the Franklin decision, Mr. Justice Henderson said the following at paragraph 47: • It is my view that this is the sort of offence where general deterrence has an impact. One does not enter into a Dial-A-Dope

operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business. It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction.

In other words, general deterrence is a genuine consideration in cases of this sort. • It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs.

When I weigh the need for general and specific deterrence, the need to protect the public, the need to rehabilitate this offender, and the need to denounce his conduct; and when I take into account the injunction in the Criminal Code that incarceration should not be imposed unless and until all other alternate forms of sentencing have been considered, I find myself of the view that a term of true imprisonment is necessary in [the] case. 56 I have come to a similar conclusion.

This is not to say, as I have already said, that a conditional sentence order cannot be imposed in a dial-a-dope operation or a drug-trafficking case. In my view, however, the circumstance of this offence does not lend itself towards a conditional sentence order. I have not overlooked the principle of rehabilitation. It is unlikely that Mr. Sandher will commit further crimes. He will not be able to continue with his schooling. However, he knew that was a possibility when he enrolled in the course in January.

There is no suggestion that he will lose his employment as a result of an imposition of a jail term other than for the period of the term. 57 His children will suffer and that I regret. If his parents truly cannot look after them and no other family member can, then they will have to surrender them to the government on a voluntary care agreement until Mr. Sandher is released from custody. The greatest loss with respect to Mr. Sandher's offences is the effect of these offences on his children. However, that in and of itself is not a sufficient basis upon which to grant a conditional sentence order. [ 20 ] Mr.

Raccio's counsel says that a CSO for two years less a day is the appropriate sentence. In arguing in favour of a conditional sentence, Mr. Raccio's counsel primarily relies on the fact that the offence took place in April 2009 and that Mr. Raccio has not reoffended and has abided by his bail conditions until now (the date of the sentencing hearing). Further, he points to the fact that Mr. Raccio has completed the withdrawal management programme to which I referred above. [ 21 ] The cases upon which Mr.

Raccio relies mostly deal with young drug offenders who by the time of the trial or sentencing had completely rehabilitated themselves. Further, in many of those cases, there was a longer gap between the time of the offence and the trial than there was in the case at bar. [ 22 ] In R. v. Nesbitt , 2012 BCCA 243 , the accused was convicted of possession of 17 kgs of cocaine for the purposes of trafficking. He was given a conditional sentence of two years less a day.

In doing so the trial judge emphasized the unique features of the case: • The accused was 20 years old at the time of the offence • The matter took seven years to come to trial. By that time the accused had completely turned his life around and was gainfully employed.

He recognised that he people he associated with were part of his problem and he moved to Alberta. • The accused was naïve and his possession of the drugs was brief, and for the purposes of making a "drop". • He cooperated with the police after his arrest. [ 23 ] The Court of Appeal upheld the conditional sentence on the basis of the unique circumstances of the case. Chiasson J.A., delivering the judgment for himself and Tysoe J.A. referred to R. v.

Proulx , 2000 SCC 5 , and recognised, as I do, that in the absence of a minimum sentence, "no crime is beyond the reach of a conditional sentence". [ 24 ] Levine J.A. concurred in the result and said, at para. 36: The only justification for the sentence of two years less a day to be served as a conditional sentence in the community is the full rehabilitation of the respondent during the six years that elapsed between the date of the offence and sentencing.

The clear weight of the authorities is that a penitentiary sentence was called for in order to properly emphasize the importance of the principles of denunciation and general deterrence in sentencing for this serious drug offence. [ 25 ] At para. 43 she commented on another case relied on by Mr. Raccio, R. v. Kreutziger , 2005 BCCA 231 : The case relied on by the sentencing judge, R. v. Kreutziger , 2005 BCCA 231 , was similar. There, the offender had rehabilitated himself after sentencing and this Court was faced with whether to send him to jail seven years after the offence. The reasons 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 is committed, the denunciatory and deterrent impact of an individual sentence on the community recedes, 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. [ 26 ] Turning to the case at bar, the gap between the offence and the trial, and, for that matter, this sentencing judgment, are not as attenuated in Nesbitt or Kreutzinger . [ 27 ] I do not think that Mr. Raccio has rehabilitated himself. I recognise that he completed the withdrawal management programme, but that is a minimal improvement. He still associates with his drug-using associates.

The comments in the two reports that I quoted above also point to the difficulties with Mr. Raccio's rehabilitation. [ 28 ] The evidence of the surveillance which led to the arrest of Mr. Raccio and Bears shows that Mr. Raccio was repeatedly involved in drug transactions during the course of the 19-day surveillance. These have been more thoroughly dealt with in my reasons for the

conviction and in the Crown's facts for sentencing submissions. [ 29 ] Mr. Raccio's use of Mr. Bears as a subordinate shows some level of sophistication. It is clear that he hoped that Mr. Bears would provide some isolation between Mr. Raccio and the purchase from Mr. Della Pena. [ 30 ] In my view denunciation, deterrence and rehabilitation all merit federal time. [ 31 ] The sentence is therefore: 1. Two years imprisonment. 2. A DNA sample under s. 487.051. 3. A mandatory lifetime firearms prohibition under s. 109(2)(a). 4. A mandatory lifetime firearms prohibition under s. 109(2)(b). 5.

Forfeiture of seized items under the CDSA s. 16. 6. A victim surcharge of $100 under s. 737 (2)(b)(ii). "E.M. MYERS, J."