R. v. Walthers, 2013 BCSC 805

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Walthers, 2013 BCSC 805 Date: 20130417 Docket: 55687-2 Registry: Chilliwack Regina v. Gordon Ronald Max Walthers Before: The Honourable Mr. Justice Smart Oral Reasons for Sentence Counsel for the Crown: Finn Jensen, Q.C. Counsel for the Accused: Brian Juriloff Place and Dates of Hearing: Chilliwack, B.C. April 16 and 17, 2013 Place and Date of Sentence: Chilliwack, B.C. April 17, 2013 [ 1 ] THE COURT: I will give reasons for sentencing now.

In the event a transcript of my reasons is ordered, I reserve the right to edit for grammar and clarity. [ 2 ] Gordon Ronald Max Walthers has pleaded guilty to two drug trafficking offences; namely, that on October 27, 2010, at or near Hope, he unlawfully possessed cocaine for the purposes of trafficking, and unlawfully possessed what is commonly referred to as ecstasy for the same purpose. [ 3 ] Both offences are serious. The cocaine offence is punishable by up to life imprisonment. [ 4 ] Mr. Jensen on behalf of the Crown submits that a fit sentence is one that is between nine to 12 months' incarceration.

He opposes the sentence being served in the community pursuant to s. 742 of the Criminal Code , R.S.C. 1985, c. C-46. [ 5 ] Mr. Juriloff, on behalf of the offender Mr. Walthers, properly concedes that jail must be imposed, but argues that a conditional sentence is an appropriate sentence and one that best combines all of the sentencing objectives, including rehabilitation. [ 6 ] The circumstances of the offence were summarized by Mr. Jensen. They are not disputed.

Over a number of days commencing in August 2010, the RCMP conducted surveillance of the offender's residence and observed numerous individuals coming and going from the residence. The actions of these individuals were consistent with drugs being sold to them at the residence and several of them, when stopped and questioned after leaving the residence, admitted as such. [ 7 ] On October 27, 2010, the RCMP again conducted surveillance and observed on 51 occasions 41 different individuals come to the residence, enter, and shortly thereafter leave.

These persons arrived by different means: on foot; on bicycle; and in vehicles. What the police observed was, again, conduct consistent with drugs being sold from the offender's residence. [ 8 ] Later that day, the RCMP obtained and executed a search warrant at the residence. Inside were the offender and seven other individuals. All or most of the seven were presumably persons who were there to purchase drugs. [ 9 ] In a bedroom of the residence were numerous quantities of crack cocaine as well as scales. The total amount of cocaine was 27.3 grams.

The quantities found throughout the bedroom varied between .1 gram and 10 grams. The offender was in possession of the cocaine for the purpose of trafficking. The value of the cocaine was between $2,180 and $2,730 depending on how it was sold. There were also 16 tablets of ecstasy with a value of $160. There were also many other drugs, literally hundreds of various prescription drugs, a score sheet and a replica handgun. [ 10 ] Mr. Juriloff stresses that the offender has pleaded guilty and taken responsibility for his actions. He has filed a number of letters from various individuals who speak highly of Mr.

Walthers' generosity, support and good character. [ 11 ] Counsel highlights that Mr. Walthers has been on bail since October 2010 and generally has done well. He refers me to page 6 of the pre-sentence report where the author of the report states: The subject committed the present offences 15 days after being placed on the above-noted probation order. He was placed on a recognizance of bail on 28th of October, 2010. There were initially some concerns about his reporting however he has done better in this regard over approximately the past 18 months.

He has presented with a good attitude and has kept his supervisor informed about his current circumstances. The subject noted that the police have regularly attended at his residence to monitor his current curfew without incident for over two years.

[ 12 ] Mr. Juriloff also refers to decisions of this Court in R. v. Tabujara , 2010 BCSC 1568 and R. v. Presidente , 2012 BCSC 1636 , he submits support his position that a carefully crafted conditional sentence order with stringent conditions can meet the objectives of general deterrence and denunciation. He also submits that Mr. Walthers has demonstrated, while on bail over the last few years, that he would not endanger the community if he is permitted to serve his sentence out of jail. [ 13 ] Mr. Jensen stresses other portions of the pre-sentence report and in particular the concern of the author that Mr.

Walthers does not fully grasp the seriousness of his conduct and lacks the motivation to attend counselling and other programs to help him abstain from the use of and abuse of drugs. Mr.

Jensen points to page 4 where the author states: Further, the undersigned is not confident that the subject understands the effort and commitment that it may take to remain clean or sober or moreover that he has the motivation or feels the need to attend for counselling and programs at this time. [ 14 ] He also directed me to page 6 where the author states: In the writer's view, any return to intoxicant misuse and negative associations could certainly impact his compliance and progress in the community.

Moreover, his failure to take advantage of recommended substance abuse counselling and a pattern of missed appointments while previously on probation is somewhat troubling and could negatively affect community supervision. [ 15 ] Mr.

Jensen also provides me with a number of sentencing decisions that, in his submission, supports the Crown's position that a conditional sentence for these offences and this offender would not be consistent with the fundamental purpose and principles of sentencing. [ 16 ] I will be brief in explaining my reasons for the decision I have reached. [ 17 ] Sentencing is an individualized process. I must determine what is a fit sentence for these offences and this offender.

To do so, I must consider the fundamental purpose of sentencing, the objectives of sentencing, and the principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code . [ 18 ] The offences here are serious because trafficking cocaine and ecstasy have serious consequences for society. The amount and value of the drugs seized on October 27, 2010 is not insignificant. They are consistent with the intermittent police surveillance over a number of weeks and show that Mr. Walthers was operating a drug trafficking business out of his residence.

This was not a one- transaction offence by a young first-time offender. The police observed 51 visits on the day of the search involving 41 different individuals who attended the residence for two to three minutes. What was occurring out of his residence was analogous to a dial-a-dope operation, except the buyers came to his home rather than the other way around. [ 19 ] The consequences to individuals in the communities that flow from the use and trafficking of cocaine are enormous. [ 20 ] With respect to Mr. Walthers' circumstances they are summarized in the pre-sentence report. He is presently 51 years of age.

He had 17 previous convictions at the time of these two offences. Most of these convictions occurred when he was a much younger man, few involved drugs, and few resulted in a jail sentence. His record also discloses significant periods when he apparently was living a productive life and not committing criminal offences. However, when Mr. Walthers committed the two offences for which I am sentencing him, he was a mature man who had been convicted many times of criminal offences. In fact, he had been convicted of mischief just days before these two offences and was placed on probation. As such, Mr.

Walthers signed his probation order and promised to keep the peace and be of good behaviour and yet continued to traffic drugs out of his residence. [ 21 ] Mr. Walthers has provided the Court with a number of letters from friends and family. They speak highly of his generosity and kindness towards others. A sister, for example, whom I am advised holds a responsible position with a major company, says: I've known my brother Gordon Walthers for 44 years and want to take this opportunity to write this letter in support of Gordon. I've always known Gordie as someone who would help those around him.

He has been a major strength in my life, looking after me in many ways throughout the years. He helped me particularly during my latter high school years and later into university, always providing support so that I could pursue higher education. Gordie has always been very generous and giving of his time and throughout the years would care for my children when I work or school obligations to meet. During the six years of our father's life before passing away in May 2010, Gordie provided continuous support and care to my father.

Gordie was the personal full-time caregiver for our father and lived with him for six years during the time of declining health. He always demonstrated love, care, and compassion in what was a very difficult and demanding time. I know Gordie to be very helpful and compassionate throughout the small community of Hope, willing to provide assistance to anyone in need. He's always been a stable resident in Hope, living there all his life except for a four year period when he was working in Prince George. [ 22 ] The content of the letters raised the question of how could someone with the good character of Mr.

Walthers be involved in trafficking cocaine to the citizens of his community, particularly the young people? This seems entirely inconsistent with his character given the harm that drugs can cause, but perhaps it is not inconsistent if Mr. Walthers does not really understand those consequences, not only to others but to himself. This lack of understanding is what emerges from the pre-sentence report and is consistent with his failure to attend counselling and other programs intended to assist him.

This increases the risk of harm and of him re-offending in the future. [ 23 ] I also find that he has not been candid with the author of the pre-sentence report with respect to his explanation for selling drugs. It is obvious by the quantity of drugs found and the number and gender of those coming and going from his residence for the purpose of buying drugs that his primary motive for selling drugs was money, not to ingratiate himself with women. [ 24 ] Despite Mr.

Juriloff's able submissions I am satisfied that a conditional sentence would not be consistent with the fundamental purpose and principles of sentencing as required by s. 742.1. It would not satisfy the objectives of denunciation or general or specific deterrence or the fundamental principle of proportionality. [ 25 ] I find a fit sentence on Count 1 is nine months' incarceration, and a fit sentence on Count 2 is one month incarceration to be

served concurrently to the sentence on Count 1. [ 26 ] In addition, I make the following ancillary orders: 1. Pursuant to s. 487.051(3)(

b) I am satisfied that it is in the best interests of the administration of justice to make a DNA order and I do so. I authorize the RCMP to take or cause to be taken the number of samples of bodily substances that is reasonably required for forensic DNA analysis. 2. Pursuant to s. 109(2) of the Criminal Code , I also order that Mr. Walthers be prohibited for ten years from his release from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance. 3.

Finally, I order pursuant to s. 16 of the Controlled Drugs and Substances Act forfeiture of all drugs, money, and drug paraphernalia seized during the search on October 27, 2010. [ 27 ] Mr. Jensen, is there anything else? [ 28 ] MR. JENSEN: Yes, there is one exception to the items to be forfeited. So that it is plain to the police, I would ask that Your Lordship include a term that an Acer computer Aspire X3400 be returned to Mr. Walthers. Otherwise the wording that you have pronounced will be affected. So -- [ 29 ] THE COURT: Just repeat that – except for a – [ 30 ] MR. JENSEN: Except for an Acer computer.

So that's A-c-e-r, Model Aspire X3400. [ 31 ] THE COURT: Madam Registrar, you have the type of computer, so I make that order except for the computer that Mr. Jensen has described. That will not be forfeited and will be returned to Mr. Walthers. How should that be effected, Mr. Juriloff? [ 32 ] MR. JURILOFF: I would suggest that a delegate go to the police offices to pick it up. [ 33 ] THE COURT: Simply leave it at the police office for him to pick up when he is able to? [ 34 ] MR. JURILOFF: Yes. [ 35 ] THE COURT: All right. [ 36 ] MR. JURILOFF: That will work. [ 37 ] THE COURT: Thank you.

Anything else? [ 38 ] MR. JENSEN: No, only that we will direct a stay in respect of the balance of the counts that deal with Ms. Nachbaur. That would be Count 1, Madam Clerk, and Count 4 on the Information, and as well, Counts 3 and 4 as they relate to Mr. Walthers. [ 39 ] THE COURT: Thank you both for your assistance. "SMART J."