R. v. Hendrickson, 2017 BCSC 176

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Hendrickson, 2017 BCSC 176 Date: 20170119 Docket: 62655-2 Registry: Chilliwack Regina v. Dylan Ross Hendrickson Sahara Rose Thomas Before: The Honourable Mr. Justice G.P. Weatherill Oral Reasons for Sentence (Re Accused Dylan Ross Hendrickson) Counsel for the Crown: S.J.K. Gill Counsel for the Accused Hendrickson: P.A. McDermick For the Accused Thomas: No appearance Place and Date of Trial/Hearing: Chilliwack, B.C. January 19, 2017 Place and Date of Judgment: Chilliwack, B.C. January 19, 2017 [ 1 ] THE COURT: Mr.

Hendrickson is before me for sentencing for his conviction for two offences under s. 5(2) of the Controlled Drugs and Substances Act . The first for possession of cocaine for the purpose of trafficking and the second for possession of marihuana for the purpose of trafficking. The convictions stem from his arrest on February 2, 2013, as he was engaged in a dial-a-dope transaction in the company of his co-accused, Ms. Thomas. Both Mr. Hendrickson and Ms. Thomas pled not guilty to the charges and the matter proceeded to trial. On September 7, 2016, as the trial was nearing completion, Mr.

Hendrickson admitted to his counsel that he was in possession of the cocaine and marihuana that was seized during his arrest for the purpose of trafficking. I therefore found him guilty of the two charges. The Crown proceeded with its case against Ms. Thomas and, on September 16, 2016, I acquitted her of the charged offences against her. Circumstances of the Offence [ 2 ] The details and events leading up to Mr. Hendrickson's arrest and charges are summarized in my oral reasons dated August 28, 2015, relating to the lawfulness of his arrest.

I held that his arrest was lawful, was not in breach of his Charter rights, and that the seizure of drugs, cash, and cellphones found in the car and on his person to be incidental to his lawful arrest. [ 3 ] In brief, the facts are that Sergeant Scott of the Mission RCMP observed what he believed to be a hand-to-hand drug transaction between two vehicles parked in a mini-mall parking lot. The transaction took place in a matter of seconds. The vehicle involved in the receiving end of the transaction drove away, but Sergeant Scott stopped and arrested Mr. Hendrickson, the other vehicle's passenger, and Ms.

Thomas, the other vehicle's driver. Mr. Hendrickson was found to be carrying a bag of cocaine and individual bags of marihuana and cocaine were found in the car. The cocaine had a street value of $560 and the marihuana had a street value of $300. Sergeant Scott also discovered two BlackBerry cellphones in the vehicle that I am satisfied were used as part of the dial-a-dope operation Mr. Hendrickson was involved in. I was also satisfied that this was a typical dial-a-dope operation which was described in the evidence as akin to a take-out delivery service. [ 4 ] Regarding Mr.

Hendrickson's circumstances, a presentence report was prepared by Ms. March, a probation officer. It is dated January 13, 2017, and helpfully sets out Mr. Hendrickson's background and circumstances. He is 24 years of age. He has no prior criminal court history. He comes from what is described as a good family upbringing, but from his mid-teenage years until approximately nine months ago, he did not have a close relationship with his parents. He dropped out of school in grade 11, was unmotivated, and quickly got involved with unsavoury characters and into the illegal drug trade industry. He told Ms.

March that he considered selling drugs was an easy way to make money. He was involved in an intimate but unhealthy relationship with his co-accused, Ms. Thomas, from age 15 to 22. They were both involved in the drug-trafficking culture. [ 5 ] Mr. Hendrickson's father describes him as being a very intelligent child with a good heart, but stubborn and headstrong. His father noted that he was using drugs starting around the age of 15. He left home at the age of 19. He became addicted to drugs. On the odd occasion that he did come home, he would be asked to leave because of poor behaviour and stealing. Mr.

Hendrickson admits that he

was addicted to cocaine. That developed into an addiction to prescription medication such as Xanax, Oxycodone, and valium to help him sleep. He says his drug addiction got to the point of costing him over $200 per day and that the money he made from selling illegal drugs went to pay for this habit. He says he never abused alcohol. [ 6 ] In May 2016, Mr. Hendrickson's relationship with his parents and siblings improved and they have now seemingly reconciled. He has sworn off drugs and has been clean from drugs since March 2016. His father describes a "night and day" difference in Mr.

Hendrickson now that he is clean from drugs and is working steady. He has attended a few AA and NA meetings, but soon quit because he did not like attending and listening to other people's stories. He has been employed by Apex Drywall since May 2016 and is currently earning $22 per hour or $4,000 per month. He pays $1,000 per month towards his debts. His boss, Mr. Thompson, describes him as a good worker who always does his best. He says Mr. Hendrickson is a pleasure to be around. He is aware of this court matter and says that Mr.

Hendrickson will have a job with Apex Drywall as long as he wants, even after a period of incarceration if that is to be the sentence. [ 7 ] Mr. Hendrickson was released on a recognizance of bail on May 20, 2014, on these charges and was required to report as directed to his probation officer. He soon began to miss his reporting requirements. He says that he was busy working full-time, failed to report, and then got scared he would go to jail so he stopped reporting altogether. He is now facing charges for breach of his bail conditions.

The Crown's Position on Sentence [ 8 ] The Crown seeks a six to nine-month jail sentence plus probation of 18 months to address counselling because Mr. Hendrickson is an admitted drug addict. Crown also seeks ancillary orders for forfeiture of items seized by the police, namely, the cash, drugs, packaging, and cellphones; a DNA order under s. 487.051 of the Code; and a mandatory 10-year firearms prohibition under s. 109(1)(

c) of the Code. Since he is currently employed, the Crown also asks that I impose a victim fine surcharge, as well. [ 9 ] In support of its submissions that a custodial sentence should be imposed, the Crown relies on R. v. Cisneros , 2014 BCCA 154 , and R. v. Oates , 2015 BCCA 259 . Cisneros was a decision of our Court of Appeal handed on April 11, 2014. At paras. 9 and 10, the court stated: [9] In a long series of cases, the courts of this province have emphasized the social harms engendered by dial-a-dope operations. Recently, in R. v.

Gill , 2013 BCCA 320 , the Court summarized the concerns [and citing paragraphs 22 and 23 of the Gill case]: [22] It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to both the individuals who use them and to our community. The proliferation of these operations has significantly increased accessibility to these drugs, and their harmful effects. As a result, the courts have routinely recognized that the primary objectives in imposing sentences for trafficking in this manner must be deterrence and denunciation. [23] In [R. v.

Proulx, 2000 SCC 5 ], the Court was clear that a conditional sentence may satisfy those objectives. Nevertheless, as the problems and tragedies associated with narcotic use have multiplied, this Court has repeatedly indicated that a fit sentence for a dial-a- dope trafficker will generally be a custodial term of six to 12 months. In R. v.

Tran , 2007 BCCA 613 , a case in which the appellant argued the trial judge wrongly imposed a sentence of 9 months’ incarceration instead of a conditional sentence for a conviction arising from a dial-a-dope scenario, this Court captured the approach it has generally taken in such cases at para. 6: . . .

There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence has been found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where the offender is not an addict and has participated simply for profit. [10] Denunciation and deterrence are particularly important sentencing objectives in dial-a-dope cases. [ 10 ] Oates was a decision of our Court of Appeal handed down June 3, 2015, dealing with the appropriate sentence for a first-time offender engaged in a dial-a-dope operation.

At paras. 19 and 20, the court commented on the prevalence of dial-a-dope operations and the need for denunciation and deterrence. Quoting from paragraphs 19 and 20: [19] It may be useful at this juncture to remember how the jurisprudence in respect to dial-a-dope trafficking developed. In what is often taken as the most succinct description of the reason general deterrence generally plays such a high role in determining an appropriate sentence for dial-a-dope trafficking in hard drugs. Mr. Justice Henderson said in R. v.

Franklin , 2001 BCSC 706 : [45] On the other hand, it must be said that the Lower Mainland of British Columbia is overrun with cocaine and heroin. Those who are willing to disseminate drugs through the community by Dial-A-Dope operations are responsible for the ready availability of these drugs. People such as Mr. Franklin, who engage in Dial-A-Dope operations, are lured into them by the high profits available with little effort.

It is easy money. [46] The destructive potential of these drugs is so well known as not to require comment. [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. [48] 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 this case. [20] The approach to sentencing in respect to such cases described by Mr. Justice Henderson has been reflected in a multitude of cases, some summarized in Tran , others in R. v. Gill , 2013 BCCA 320 , and affirmed just last year in in R. v.

Cisneros , that denunciation and deterrence are the primary objectives in imposing sentences of trafficking in this manner. None of these cases demonstrate any amelioration of the drug trafficking problem in the Lower Mainland referred to by Mr. Justice Henderson, or lessening of the scourge that hard drugs are to the community, or reduction in the risk that hard drugs pose for the neophyte introduced to a hard drug through ready availability.

While this jurisprudence does not mean that such offences always will attract a jail sentence, recognizing that each case must be decided with reference to the individual circumstances, it does mean that at the first step, denunciation and deterrence are the major players in the sentencing considerations. [ 11 ] The Crown argues that there are no extraordinary circumstances in this case that would militate against the six to nine-month term of imprisonment which would be consistent with these Court of Appeal cases. Mr. Hendrickson's Position [ 12 ] On Mr. Hendrickson's behalf, Mr.

McDermick seeks to distinguish Cisneros and Oates . He argues that Mr. Hendrickson's involvement in the dial-a-dope operation was at the lowest rung of the drug-trafficking ladder. He did not live a flashy lifestyle. He was struggling with a crippling and overpowering drug addiction and was selling drugs to fuel that addiction. He faults that drug addiction on his involvement with the wrong crowd. Since March 2016, however, he has been clean and sober. He has confessed to his earlier involvement in the dial-a-dope trafficking business. Instead of going to a formal drug rehabilitation program, he detoxed at home.

The two-week detox period was very hard on him, but he has now turned his life around, has full-time employment, has disassociated with his previous toxic social group, and no longer has any negative influences in his life. He works during the days and stays home at night. He leads a quiet lifestyle. He interacts with his family with whom he has reconciled. [ 13 ] A series of nine reference letters which have been marked Exhibit 1 were provided from family, friends, co-workers, and his employer. I have reviewed them all. These letters attest to Mr.

Hendrickson's having recently, at least since March 2016, turned his life around and urge upon me that he is now a person of good character, has abstained from drugs, and is successfully employed. These letters confirm he has removed himself from the drug abuse lifestyle he was leading at the time of his arrest and subsequently. [ 14 ] By all accounts, since March 2016, Mr. Hendrickson has been on the road to successfully being a productive and law-abiding member of society. Accordingly, Mr.

McDermick argues that the appropriate sentence should be a period of probation with two conditions in addition to the normal conditions of probation, namely, 100 hours of community service and to a curfew. Alternatively, Mr. McDermick seeks an intermittent sentence up to 90 days to allow Mr. Hendrickson to continue to work during the week and serve his sentence on the weekends. He argues that it would assist with his rehabilitation and protection of the public and keep him disentangled from drug-related activities. Mr. Hendrickson believes that he has rehabilitated himself.

He says he is not a violent offender and it is best to allow him to remain gainfully employed. He says he is willing to comply with any sentence that I might impose. [ 15 ] Mr. McDermick relies on another B.C. Court of Appeal case, also in 2015, R. v. Voong , 2015 BCCA 285 . In that case, Madam Justice Bennett giving judgment for the court wrote at para. 59: In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 16 ] Mr. Hendrickson argues that the circumstances in this case are exceptional circumstances that nearly exactly match the exceptional circumstances that the court in Voong envisaged. Purposes and Principles of Sentencing [ 17 ] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance for a just, peaceful and safe society by imposing just sanctions.

The sentence must be proportionate both to the gravity of the offence and the degree of responsibility of the offender.

Section 718 of the Criminal Code sets out objectives that a sentencing judge must consider. These objectives are: (

a) to denounce 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. [18]

Section 718.1 of the Criminal Code provides that the: . . . sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. [19]

Section 718.2 of the Criminal Code provides the following additional guidance for sentencing: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to theoffence or the offender . . . (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders . . . [20] Retribution is also a factor to consider in conjunction with the other sentencing principles. In R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, at page 554 to 559, the Supreme Court of Canada held that retribution is an accepted and importantprinciple of sentencing.

Retribution, which is neither vengeance nor denunciation, requires a sentence to properly reflect the moralblameworthiness of the offender. [21] Finally, s. 10(1) of the Controlled Drugs and Substances Act sets out the following purpose of sentencing applicable to offencesagainst its provisions: 10(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this

Part isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Mitigating Factors [22] In his presentence report, Mr. Hendrickson admits selling and using cocaine since he was 19. He also admitted his guilt for theoffences charged towards the conclusion of his trial. He now accepts responsibility for the offences and says he is ashamed of the personhe had become.

Aggravating Factors [23] The aggravating factors include the nature of the dial-a-dope operation Mr. Hendrickson was involved in and the fact that hewas selling hard drugs and the harmful nature of cocaine in the community. Although he states that his involvement was solely to makemoney to fuel his drug addiction, he seemingly did admit to Ms.

March, who prepared the presentence report, that, at least at thebeginning, and I am quoting from page 4 of the presentence report: With no source of income and bills to pay, he chose an easy way to make money. [24] Before his addiction, he was already connected at that time with persons who were selling drugs. Contrary to Mr. McDermick'sassertion that his involvement in the dial-a-dope operation was entirely due to his drug addiction and the money he made was to fuel it, Ifind that part of his motivation for being so involved was monetary. Sentences for dial-a-dope cases [25] In R. v.

Oates, which I have earlier referred, the Court of Appeal overturned the learned trial judge's suspended sentence andsubstituted a sentence of six months' incarceration and 18 months' probation. In R. v. Pepper, 2015 BCCA 476, the Court of Appeal wasfaced with an appeal of a six-month sentence imposed by a judge in a dial-a-dope case who was satisfied that many of the factors similarto those cited by Mr. McDermick on Mr. Hendrickson's behalf would but for R. v. Oates have resulted in a 90-day intermittent sentence,but imposed a six-month sentence instead.

The Court of Appeal in Pepper decided that the sentencing judge misdirected herself on Oatesand substituted a 90-day intermittent sentence to be served intermittently.

In Voong, the Court of Appeal made it clear that exceptionalcircumstances must exist before the range of six to 18 months' sentence for the first-time offence should be departed from and thatwhether exceptional circumstances exist are case-by-case dependent. [26] It is with all these sentencing principles in mind, including our Court of Appeal’s direction on the appropriate sentences forthose guilty of being engaged in dial-a-dope operations, that I must sentence Mr. Hendrickson. [27] So, Mr.

Hendrickson, would you please stand. [28] You have heard me read from a number of Court of Appeal decisions on the directions that I have to take --

[ 29 ] THE ACCUSED: Yes. [ 30 ] THE COURT: -- and the considerations I have to make in determining a sentence. I have considered counsel's submissions. I have considered the letters of reference that have been submitted on your behalf and, in particular, I must say the very impassioned submissions made by Mr. McDermick on your behalf. [ 31 ] The clear direction from our Court of Appeal is that when considering a fit and proper sentence for someone found guilty of being involved in a dial-a-dope operation, denunciation and deterrence are the major considerations.

Barring exceptional circumstances, the normal range for sentencing, as I have mentioned, for a first-time drug offender in a dial-a-dope operation in hard drugs includes a jail sentence starting in the six-month range. [ 32 ] Trafficking in hard drugs is a scourge on our society. Of that there can be no doubt. One need only turn on the news or read the newspaper for a glimpse on how drugs are affecting people's lives and society in general.

Indeed, in the last few years, trafficking in hard drugs, including cocaine, has become a crisis in our province. [ 33 ] I accept that you have taken significant steps to turn your life around and put the past behind you and I accept that the past has been an all-consuming drug habit that you have had since you were a teenager and a young adult, and I congratulate you on the steps you have taken to rehabilitate yourself, obtain employment, and move forward with your life.

However, I am not persuaded that the exceptional circumstances exist in this case sufficient to warrant a departure from the sentence the Court of Appeal has directed is appropriate in a dial-a-dope case such as this. [ 34 ] In my view, despite the impressive changes you have made in your life since March of 2016, you must account for your illegal activity resulting in your convictions, and I sentence you to a period of incarceration of six months on Counts 1 and 2 of the indictment to be served concurrently. [ 35 ] Upon your release from custody, I order that you be placed on probation for a period of 18 months.

Throughout the term of your probation, you will be subject to the following conditions: (

a) You shall keep the peace and be of good behaviour. (

b) You shall appear before the court when required to do so by the court. (

c) You must report to a probation officer as and when directed by your probation officer. (

d) You shall inform your probation officer of your residential address and phone number at first report and you shall not change your address or phone number at any time without first providing written notice to your probation officer. (

e) You are to reside at a specific address and not to change your address without obtaining permission from your probation officer. (

f) You must abstain absolutely from the consumption and/or possession of non-prescription drugs and/or non-prescription -- and/or prescription drugs not prescribed in writing to you by a qualified and licensed practitioner. I am not going to order that you abstain from consumption of alcohol because there is no evidence that alcohol was a problem for you or that it contributed to your struggles. (

g) You shall attend and participate in counselling specifically targeting substance abuse or educational programming as may be directed by and to the satisfaction of your probation officer. (

h) You must attend and participate in psychiatric/psychological assessments, counselling, or educational programming as may be directed by and to the satisfaction of your probation officer. (

i) You shall not possess knives unless it is for the immediate preparation and consumption of food or for use in a course or scope or your employment. (

j) You shall not possess any weapons as defined by the Criminal Code of Canada including imitations of weapons or imitation firearms for a period of 10 years. [ 36 ] There will also be an order that all drugs, cash, drug packaging material, and the two BlackBerry cellphones seized by the police and filed as exhibits in this proceeding are forfeited. [ 37 ] The Crown has applied, and Mr.

McDermick does not oppose, an order authorizing the taking of a sample of -- or samples of your bodily substances that is reasonably required for a DNA analysis and that order is made in Form 5.02. [ 38 ] There shall also be a victim surcharge of $400 payable with two months of being released from custody. [ 39 ] Mr. Hendrickson, you are a young man and you have the rest of your life ahead of you.

I hope that you will use this period of incarceration I have imposed to reflect on your past, what brought you to this point, and the good choices you have made since March of 2016 to become a productive and law-abiding member of society and I wish you success in the future. [ 40 ] Anything arising? [ 41 ] MR. MCDERMICK: Thank you, My Lord. [ 42 ] THE COURT: Ms. Gill? [ 43 ] MS. GILL: No. Thank you.

[ 44 ] THE COURT: Thank you. [ 45 ] THE CLERK: Just to confirm, My Lord, is it a term of the order -- for firearms, term of the probation or is it a separate order? [ 46 ] THE COURT: Separate order. [ 47 ] THE CLERK: Thank you. [ 48 ] THE COURT: Thank you. “G.P. Weatherill J.”