R. v. Donald, 2017 BCSC 614

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Donald, 2017 BCSC 614 Date: 20170215 Docket: 161965-5 Registry: Victoria Regina v. Adam Stephen Donald Before: The Honourable Mr. Justice B.D. MacKenzie Oral Reasons for Sentence Counsel for the Crown: S. Paulson Counsel for the Accused: S. Sugarman Place and Date of Hearing: Victoria, B.C. February 15, 2017 Place and Date of Judgment: Victoria, B.C. February 15, 2017 [ 1 ] THE COURT: Mr.

Donald is before the court -- you can have a seat, sir, if you like, thank you -- before the court for sentencing after entering a guilty plea to a charge that on January 3, 2014, at Sidney in British Columbia, he unlawfully possessed cocaine and heroin for the purpose of trafficking. In this regard, there has been a detailed agreed statement of facts filed on this sentencing so it is unnecessary for me to go into the facts in any detail. The brief salient facts, however, are that over a period of about two weeks, Mr.

Donald brought narcotics from the Lower Mainland area and sold them in the Greater Victoria area at the street level. On the day of the offence, January 3, 2014, he was arrested after coming off the ferry from the Lower Mainland and found in his possession were a couple of cellular phones, a small amount of cash, and 43 grams of cocaine, 10.34 grams of crack cocaine, almost 16 grams of heroin, and then in another baggie, 10.7 grams of cocaine. [ 2 ] Mr. Donald entered a guilty plea, as I have mentioned, in August 2016.

Apparently, there had been a preliminary hearing and the plea of guilty was entered on the first day of trial. So Crown counsel points out that it cannot be said it was a plea at the very earliest moment, but Crown counsel has properly acknowledged the guilty plea was negotiated prior to the start of the trial such that no witnesses were inconvenienced and no judicial resources were wasted. While the offence here is a serious one and Mr. Donald has a not insignificant, albeit quite dated, criminal record, Crown and defence have proposed a joint sentence of 15 months' incarceration.

Learned Crown counsel submits that such a disposition is warranted notwithstanding the fact that the amount and value of the cocaine and heroin were significant. Apparently, if sold, Mr. Donald was to earn $15,000 to $17,000, a sum consistent with the Crown's expert with respect to the valuation of the narcotics, if sold at the street level. In addition, this was clearly a for-profit enterprise as acknowledged by Mr.

Donald in a statement he provided to the police. [ 3 ] In addition, there is the criminal record, which I have noted is dated, going back to 1997 where there was a conviction for possession of a narcotic for the purpose of trafficking, and trafficking in narcotics; on the second occasion, a three-month sentence; and then in July of 2007, after the trafficking in April 1997, there was a jail sentence of two months for PPT; and then finally in 2007, in September, production of marihuana.

The Crown, on the other hand, acknowledges the following mitigating factors, as I have mentioned, a guilty plea and, as defence counsel has pointed out, there were some triable issues with respect to the arrest and, in my view, notwithstanding the date of the guilty plea, a guilty plea in these circumstances must be given significant weight. Moreover, as I have acknowledged already, Mr. Donald was cooperative and admitted his involvement in this matter when arrested by the police. Finally, there has been no conviction since 2007 and it would appear Mr.

Donald has had no difficulties since being released shortly after his arrest in January of 2014, over three years ago. [ 4 ] As far as Mr. Donald's personal circumstances are concerned, he is now 43. He has got a Grade 9 education, was addicted to cocaine and heroin at a fairly early age, in his teenage years. However, to his credit, he was able to overcome these addictions in his mid- to late-twenties through attendance at rehabilitation programs. He eventually operated, I am told, a restoration business with his wife until that relationship ended sometime in 2012.

He then had difficulties with depression and financial issues and, due to his impecuniosity, I am advised he was tempted to delve into the drug trade in order to earn some income and found himself dealing drugs on the streets of Victoria. Mr. Donald is now living in the Lower Mainland. I am advised he has a strong support system and is in receipt of medication for a long standing depression issue. [ 5 ] Given all of the circumstances and being guided by the principles enunciated in R. v.

Anthony-Cook , I find that the joint submission is a fit and proper sentence and satisfies all the relevant fundamental principles of sentence codified in s. 718 , 718.1 , and 718.2 of the Criminal Code .

[ 6 ] In addition, given the totality of the circumstances, notwithstanding the discretionary nature of a DNA order, I will make a DNA order. [ 7 ] Pursuant to the record and the circumstances of this offence, there is a mandatory lifetime prohibition of all the items located in s. 109 of the Code . [ 8 ] Mr. Donald, all of that will be gone over with you when you sign any relevant documentation. [ 9 ] With respect to the victim fine surcharge, I am satisfied unless I hear any opposition to it that Mr.

Donald not be given any time to pay that; the time in default, I think it is two days concurrent to the 15-month sentence that I have just sentenced him to serve on Count 1. [ 10 ] Was there any issue with respect to any forfeiture matters, Ms. Paulson? [ 11 ] MS. PAULSON: There is not -- [ 12 ] THE COURT: Okay. [ 13 ] MS. PAULSON: -- My Lord, no. [ 14 ] THE COURT: Good. [ 15 ] MS. PAULSON: There is not. [ 16 ] THE COURT: Okay. Ms. Sugarman, is there anything else? [ 17 ] MS. SUGARMAN: No, thank you very much. [ 18 ] THE COURT: Okay. Thank you very much, Ms. Paulson, Ms. Sugarman. [ 19 ] MS.

PAULSON: Thank you, My Lord. [ 20 ] THE COURT: A reasonable disposition given the totality of the circumstances. Mr. Donald, good luck when you get out. Thanks. That's all. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie