R. v. Sentes, 2017 BCSC 290

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Sentes, 2017 BCSC 290 Date: 20170130 Docket: 35991-2 Registry: Courtenay Regina v. Cyle Joseph Sentes Before: The Honourable Mr. Justice Baird Oral Reasons for Sentence Counsel for the Crown: S. Simpson Defence Counsel A. Jaswal (as agent) V. Michaels Place and Date of Hearing: Nanaimo, B.C. December 9, 2016 Place and Date of Judgment: Nanaimo, B.C. January 30, 2017 INTRODUCTION [ 1 ] In May 2014, as a result of a Crime Stoppers tip, the Comox RCMP began investigating Mr.

Sentes, the offender before me, on suspicion of running a dial-a-dope service. [ 2 ] On July 23rd, 2014, an undercover police investigator dialled the number associated with the alleged service, telling the person who answered that he wanted to buy $50 worth of methylenedioxymethamphetamine (MDMA), commonly known as ecstasy. A meeting was arranged. It was the accused who showed up. He was arrested on the spot. He had six MDMA capsules on his person as well as $690.

He was also carrying the dial-a-dope cell phone on which at least one trafficking-related text was received while the arresting officer was paying attention to it. [ 3 ] Later on, the RCMP obtained a search warrant for Mr. Sentes’ residence, as a result of which the following was found: 205 pills of MDMA; 203.8 grams of bud marihuana; 12.8 grams of hashish resin; $10,980 in Canadian currency; 4 litres of hydroxybutanoic acid (GHB); drug paraphernalia, including bongs, cut plastic baggies, a digital scale with cocaine residue on it, and a vacuum sealer. [ 4 ] Mr.

Sentes was charged with and has now pleaded guilty to charges of possessing MDMA and GHB for the purposes of trafficking. At the time of these offences, Mr. Sentes was on probation for marihuana possession. He has no other record. He is now 24 years old. He is here today to be sentenced. POSITION OF CROWN AND DEFENCE [ 5 ] The Crown is seeking a six-month jail sentence with a probationary period to follow. The Crown seeks a DNA order, a 10 year firearms prohibition under s. 109 of the Criminal Code , and a forfeiture order. [ 6 ] I made those orders already, didn’t I, Ms. Simpson? [ 7 ] MS.

SIMPSON: Yes, you did, My Lord. [ 8 ] THE COURT: I confirm those orders now. [ 9 ] The defendant seeks a suspended sentence with a lengthy probationary period or, in the alternative, a 90 day intermittent jail sentence followed by probation. Mr. Michaels, in his usual persuasive way, has argued that Mr. Sentes represents the exceptional case in which a jail sentence should not be imposed for the type of offending under consideration or at least, if a jail sentence must be imposed, it should be the sort of disposition that will not upset the progress that Mr.

Sentes has made and continues to make towards his own rehabilitation. DISCUSSION

[ 10 ] The Crown refers to well-known aggravating features that are invariably referred to in dial-a-dope sentencing cases. These are lucrative, hard to detect, easy to operate enterprises in which pernicious and highly addictive substances are pedalled, often by predators and profiteers, to some of our most vulnerable and unfortunate citizens.

The Crown is entirely right to emphasize the highly deleterious impact of this activity, not only on the human individuals whose addictions are exploited by it, but also on our streets and neighbourhoods where this profoundly anti-social commerce is conducted. [ 11 ] In the present case, according to the police investigation, the offender had been running his business for several months. The MDMA that he had on him when arrested was generously supplemented by a stockpile of the same substance at his house.

According to Crown estimates that the offender did not dispute, the amount of MDMA seized represented between 40 and 200 doses, and he also had a large quantity of GHB — four litres representing between 400 and 800 doses. All told, more than $11,000 in cash was seized. It is clear, the Crown says, that this was a profitable operation. [ 12 ] The law is crystal clear by now that barring exceptional circumstances, dial-a-dopers must go to jail. Deterrence and denunciation are the main principles to be served. As Madam Justice Bennett said in R. v.

Voong , 2015 BCCA 285 at paragraph 59 : ... 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 the 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. [ 13 ] It will be noted, in other words, that Crown counsel is seeking a sentence at the low end of the range staked out by the Court of Appeal in analogous cases.

It will only be in circumstances, essentially, where the offender has truly, demonstrably and emphatically pulled himself up by his bootstraps between arrest and disposition that the importance of rehabilitation will justify going any lower. The Voong case is itself an example of circumstances in which suspended sentences were approved for a trio of dial-a-dopers who appeared to be genuinley in the midst of turning their lives around. [ 14 ] There is no one sentencing principle that prevails absolutely over the others depending on the category of the offence under consideration.

Sentencing is an individualized process, and there is no one-size-fits-all penalty, even for drug dealers. But the process isn’t random or at large, either. The principle of parity must be strongly considered in this case, as in all others. I bear in mind, as well, the principle that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders.

I have also closely considered the observations of Bennett J., in Voong that a suspended sentence can have a strong deterrent and denunciatory effect and will be appropriate in a case where the offender has rehabilitated himself, where he is no longer a danger to anyone, and where there are no factors that make imprisonment necessary in the public interest. [ 15 ] The offender before the Court has emphasized his guilty plea, and that he never put the Crown or the court system to the time and expense of conducting a trial.

Defence counsel advised that the delay in disposing of the matter had to do with triable issues concerning the search warrant for Mr. Sentes’ residence and whether the investigation amounted to entrapment. The Crown said nothing in demurral about these claims. Defence counsel submitted that this was a meaningful and substantial guilty plea, in the sense that the accused waived his right to a trial in circumstances where he had plausible defences that he decided not to pursue, preferring instead to draw the line under an unhealthy

chapter in his life and to take responsibility for his misdeeds. [ 16 ] The accused, as I have said, is 24 years old. He is the youngest of four children. He has three half-sisters. His mother, who has been present in court throughout these proceedings, is an alcoholic who quit drinking only when she was several months pregnant with him. His father was a violent alcoholic and drug abuser who left the family when the offender was 13 years old. Thereafter, the family lived in straitened circumstances, as the offender’s mother took on a succession of minimum wage jobs to keep them all afloat financially.

The offender and his sisters had to fend for themselves from an early age. The offender started using cannabis in his teenage years as a means of relieving the anxiety and stress of his chaotic home life and to take his mind off his fears and concerns about his own future. [ 17 ] The offender worked here and there during high school to contribute to the family economy, and, to his credit, he graduated with his peers in the usual order without any delays or setbacks. He worked in the construction business as a labourer after Grade 12.

There he reconnected with a childhood friend who was taking OxyContin under a doctor’s prescription to treat pain from a workplace injury. The defendant foolishly began experimenting recreationally with this highly addictive drug. His life started going out of control. He began associating with a negative peer group whose only common pursuit was drug abuse and anti-social behaviour. Soon he was unable to wean himself from the drug or to afford to supply his addiction.

Eventually, he was introduced to a local drug dealer who made him an offer that would solve his problems. [ 18 ] According to the offender, this drug dealer handed him the dial-a-dope operation as a going concern. It was already set up and ready for business. All the offender had to do was start answering the phone and making deliveries. The dealer fronted him drugs, and he accounted to the dealer for all his sales. The offender claims that he was only allowed to keep a small taste of the profits and used his take, for the most part, to support his OxyContin habit.

His lawyer told me, however, that the offender’s cut of the proceeds, though modest, exceeded what he could hope to earn doing jobs for which he was qualified in the legitimate economy. This, once again, is a particularly odious aspect of this sort of trade: it tempts people away from legitimate lifestyles because there is so much money to be made. [ 19 ] Since his arrest, the offender has been on bail. He has not breached. He stayed in the Comox Valley for several months after he was released, but then he moved to Abbotsford where he lives with one of his sisters.

He has now been clean for over a year and a half. He is fully and gainfully employed working for his brother-in-law in a tree-cutting and maintenance business. His brother-in-law reports

that the offender is working hard and getting ahead. The company’s owner has provided a letter to the same effect. [ 20 ] The defendant is attending Narcotics Anonymous meetings regularly. Letters were filed from his sponsor and another recovering addict testifying to the offender’s solid efforts towards rehabilitation and his devotion to staying clean. I note as well that the offender presented in court looking healthy and strong. He has good family support, including his mother, who is, as I said, herself a recovering alcoholic with many years of sobriety under her belt.

While it may be true that there is a history of substance abuse in this family, so too is there a strong precedent for committed and durable rehabilitation. [ 21 ] In the absence of any evidence to the contrary, I accept that the accused is a recovering drug addict who became involved in unlawful activity to maintain his own supply of opioids. His efforts to rehabilitate himself have been serious, disciplined and committed. There is cause for cautious optimism about his ability to stay clean.

He is working steadily and productively in a job with good prospects under the daily supervision of a responsible and supportive relative, his brother-in-law. [ 22 ] The offender has removed himself from the milieu in which he circulated in Courtenay. He lives with in Abbotsford with his brother-in-law and older sister. These relatives are actively paying attention to the offender’s progress and are helping him as much as they can.

I accept, in other words, that the offender has turned a corner and that on this particular sentencing, the overall goal of public protection demands that the principle of rehabilitation should be accorded considerable weight. [ 23 ] I have only one major concern here. While I am satisfied that the defendant has made significant strides towards recovery and is sincere in his commitment to remain clean and sober, I have reservations about the truthfulness of his version of facts leading up to his arrest.

I find it difficult to believe, in particular, that an addict accountable to a mid-level drug dealer for the lion’s share of his profits would be left in any remotely plausible business plan to accumulate the amounts of money that were found in the offender’s house when it was searched. To aggregate over $11,000 in MDMA sales at $50 a pop, Mr.

Sentes, would have taken a long time, and I have some trouble swallowing the possibility that your supplier would have left you alone for so long to accumulate sums of that magnitude. [ 24 ] When it comes to the four litres of GHB, the accused said that his supplier gave him this quantity of the substance to hold for somebody else. The person who was supposed to come and collect it had not yet materialized by the time of the offender’s arrest and the search of his home.

He pleaded guilty to the GHB offence, but only on the basis that he was planning to hand the substance over to his supplier’s nominee as a conduit without charge. I am suspicious that this may be part of the same convenient yarn. [ 25 ] At the same time, however, I acknowledge that when it was found, the GHB container was filled to its brim. Its contents were untouched.

The accused has no history of selling GHB, and there was no paraphernalia about the house, such as small vials or containers, indicating that he was poised to enter the retail trade in this substance. [ 26 ] In brief terms, I have misgivings about the accused’s claim of having been a mere employee in this dial-a-dope operation. I think it likelier that he was operating on his own hook, even though it seems reasonable to assume that he had a supplier, and it may even be that his supplier had some substantial degree of control over his operation.

This is all by way of saying that while I have indicated that rehabilitation is a strong factor on this sentencing, the preeminent principles continue to be those of denunciation and deterrence. [ 27 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The point I am in the midst of making is that I have some reservations about the honesty of the offender’s narrative of diminished responsibility, at least as far as claiming to have acted merely as a paid employee. [ 28 ] Having said that, I repeat that the sentencing goal of rehabilitation is strong here, although perhaps not so much that it overwhelms the principles of deterrence and denunciation.

In this case, the appropriate sentence will be one that packs a punitive and deterrent wallop while simultaneously recognizing the offender’s stalwart recovery efforts thus far and acting as an incentive to continue the good work.

I will go as far as saying that on the basis of the offender’s proven track record of improvement, of abstinence, of hard work and discipline, his rehabilitation comes close to rivalling the requirement of denunciation and deterrence, and I accept that a more nuanced balancing of these principles is required than may be the case in the run of dial-a-dope sentencings where such individual factors are absent. [ 29 ] The offences at bar are serious. We are in the midst of a serious public health crisis brought on by drug trafficking in this province. People who profit by this trade must be punished.

This offender seems to have been involved in a brisk and lucrative trade and must be taken to have voluntarily assumed the risks. I have, as I have said, reservations about the extent of his claim of diminished responsibility. [ 30 ] On the other hand, I have concluded that it would be counterproductive and contrary to the public interest if the accused were not permitted to carry on with his employment and continue with the concrete and positive steps that he is taking towards rehabilitation.

The best guarantee of public safety and security over the long haul is for drug addicts to be cured of their addictions and to be set firmly on the path of law-abiding citizenship. The sentence I impose today is calculated to punish and deter this offender without compromising his rehabilitation. I have decided that these principles may be served by the imposition of a sanction other than imprisonment. [ 31 ] And that is what it is all about, as far as I am concerned, Mr. Sentes. You have satisfied me that you are on the right track, and I want to help you continue along it.

But let me repeat what I said at the outset: this is the one, the only, and the last break of this kind that you are ever going to get from this court. [ 32 ] In accordance with s. 731(1) (

a) of the Criminal Code , on Counts 1 and 3 of the indictment I hereby impose concurrent suspended sentences. The offender will be bound by the terms and conditions of a probation order for a period of two years. The conditions will be as follows: [ 33 ] He must keep the peace and be of good behaviour and report to this Court when required to do so by this Court. [ 34 ] He must remain within the Province of British Columbia, unless he has the permission of his probation officer or this Court to leave it.

[ 35 ] He must reside at his sister’s address, 236 Wells Gray Ave, Abbotsford, and not change his place of residence without the approval of a probation officer. [ 36 ] For the first 12 months of his probationary term, he will abide by a curfew between the hours of 6:00 p.m. and 6:00 a.m. daily. My intention, Mr. Sentes, is to let you go on working, producing, and progressing, but other than that, you are confined to barracks, and that’s that. [ 37 ] This curfew, as I was saying, will bind him every day of the week.

He is not to be found outside of his residence between the hours mentioned, other than to attend a hospital or licensed clinic for the purpose of bona fide medical emergencies. [ 38 ] He may also be found outside of his house during curfew hours to perform community work service hours at the direction of his probation officer, or to attend programming, counselling, or treatment at the direction of his probation officer.

In any such case, he will carry on his person written confirmation of his probation officer’s permission to be outside his residence for production to a peace officer on demand at any time. [ 39 ] He must attend at the door of his residence at any time during curfew hours to confirm that he is at home whenever his probation officer or peace officer requires him to do so. [ 40 ] He must abstain absolutely from the possession and consumption of alcohol and drugs, including narcotic substances proscribed by the Controlled Drugs and Substances Act, the sole exception being substances lawfully prescribed by a physician licensed to practice medicine in British Columbia. [ 41 ] At the direction of his probation officer, he must attend for and successfully complete any course of programming, counselling or treatment, including residential treatment, if directed, for substance abuse and addiction issues. [ 42 ] At the direction of his probation officer, he must complete 200 hours of community work service by no later than 4:00 p.m. on Friday, February 2nd, 2018, at the recommended rate of 4 hours per week, preferably to be performed first thing on Saturday morning. [ 43 ] So there you have it.

For 12 months there isn’t going to be much to your life other than work and a curfew. You are going to do 200 hours of community work service on Saturday mornings. You are going to take whatever programming, counselling or treatment will strengthen and assist your recovery. This, I believe, is the best way forward for you and for the rest of us. It is a sentence that has punitive and deterrent punch, but also focusses on rehabilitation. It is largely for your benefit. Do not let me down. I do not want to see you back here.

If you come back before me having been convicted of breaching my order or any other offence, there is going to be trouble. [ 44 ] Do you understand? [ 45 ] THE ACCUSED: Yes. [ 46 ] THE COURT: Anything else, Ms. Simpson? [ 47 ] MS. SIMPSON: My Lord, I believe there needs to be a reporting condition, as well. [ 48 ] THE COURT: Oh, did I not say that? [ 49 ] MS. SIMPSON: No. [ 50 ] THE COURT: You are to report within 24 hours -- where is he going to report? [ 51 ] MS. SIMPSON: I’m not sure what his plans are with -- [ 52 ] THE COURT: Have you got a PO right now?

Have you got a bail supervisor? [ 53 ] THE ACCUSED: I sign in once a month. [ 54 ] THE COURT: Where? [ 55 ] THE ACCUSED: In Abbotsford. [ 56 ] THE COURT: Okay. I am ordering you to report to your PO in Abbotsford by 4 o’clock tomorrow afternoon and thereafter as directed. [ 57 ] All right, Mr. Sentes, this part of your life is over. I have provided you with the opportunity to make good on your promises, and I expect you to keep them. If you keep on track, everything will be fine. It is the only way forward. I have tried to help you out here. Okay? You get only the one break. Don’t forget it. “Baird J.”