R. v. Swales Date:, 2013 BCPC 144

Citation: R. v. Swales Date: 20130528 2013 BCPC 0144 File No: 151416-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MALAKIAS GERALD SWALES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE P.D. GULBRANSEN Counsel for the Crown: J. Walker Counsel for the Defendant: M. Bolton, E. Dance Place of Hearing: Surrey , B.C. Dates of Hearing: September 6, 2012; January 23, 2013 Date of Judgment: May 28, 2013 [ 1 ] On May 24, 2012, I convicted Malakias Swales of the following offences (26 in all): 1) Trafficking in 4 kg of cocaine and

possession of that cocaine for the purpose of trafficking, contrary to s. 5(1) and s. 5(2) of the Controlled Drugs and Substances Act . 2) Failing to stop his motor vehicle knowing that he was being pursued by a peace officer, contrary to

section 249.1 of the Criminal Code . 3) Possession of 19 kg of cocaine and 108 g of crack cocaine; 1956 g of methamphetamine and 2394 ecstasy pills, all for the purpose of trafficking. 6) One count of possession of a loaded prohibited firearm and 14 counts of possession of a restricted or prohibited firearm together with readily accessible ammunition, contrary to section 95(1) of the Criminal Code . 7) Four counts of possessing a firearm without being the holder of a licence or registration certificate contrary to section 92(1) of the Criminal Code . 8) One count of possessing eight silencers – that is prohibited devices intended to muffle or stop the sound or report of firearms contrary to section 95 (2) of the Criminal Code . [ 2 ] The Crown submits that the overriding objectives in the sentencing are deterrence and denunciation, submitting that the total sentence should be in the range of 17 years imprisonment.

The defence disagrees, submitting that a combined prison term of eight years would be fit. Many of the charges in this case are quite serious, each of them deserving a lengthy prison sentence. I must, however, apply the principle of "totality" and not impose consecutive sentences which cause the cumulative sentence to be unduly harsh. The resolution of that problem is the central issue on this sentencing.

Circumstances [ 3 ] A more detailed description of the circumstances can be found in my judgment of May 24, 2012. [ 4 ] On February 18, 2006 Surrey RCMP officers surreptitiously followed a vehicle driven by Swales and another vehicle driven by the co-accused Sloboda. The police followed them to a nearby apartment building. Swales went inside, returning a few minutes later carrying a tote bag which he placed in the rear seat of Sloboda’s vehicle. The police immediately arrested Sloboda, but Swales escaped in his own vehicle, eluding the pursuing police cars.

When they opened the bag, the police found that it contained four separate 1 kg bricks of cocaine. [ 5 ] Next the police searched the apartment which Swales had accessed. No one resided in the apartment. Rather, it was used as a storehouse for illegal drugs and firearms. The police seized a large safe found in the bedroom. When they opened it, they found that it contained 19 separate 1 kg bricks of cocaine as well as crack cocaine, methamphetamine and ecstasy. It also contained 12 handguns and ammunition, six silencers and $271,000 in cash.

The police found the other handguns ammunition and silencers under a couch in the living room. [ 6 ] The apartment had been rented for the preceding three years under the name of Jeffrey MacDonald. This was a false name provided by the man who actually rented the apartment – Jeffrey Goodwin. Entry to the apartment building was achieved by using a fob issued by the building manager. Goodwin had obtained a new fob a few days earlier.

Only one fob could be activated at a time for the apartment. [ 7 ] Videotapes from the lobby and electronic records detailing entry and exit from the building showed that Swales had come and gone from the apartment four times on February 18 th before he was observed putting the cocaine in Sloboda’s vehicle. On those prior occasions, Swales had driven a vehicle to and from the underground parking lot of the apartment complex. He had rented this vehicle on February 15, 2006. [ 8 ] The total value of the 23 bricks of cocaine, crack cocaine, methamphetamine and ecstasy was approximately $800,000.

All of the firearms were handguns. Fingerprints of persons other than Swales were found on some items in the safe. [ 9 ] It took a long time to complete this case. The charges were sworn on July 27, 2006. Swales turned himself in shortly before Sloboda's preliminary hearing was to start. The matter had to be adjourned to allow Swales’ counsel to prepare. Further delays occurred as counsel tried to determine how long the case would take and whether there would be a trial or a preliminary hearing.

Eventually both accused re-elected to be tried by a provincial court judge. [ 10 ] Further delays occurred when Sloboda had to retain new counsel. Even lengthier delays occurred because Swales’ lawyer, Mr. Bolton, was required to be away for lengthy periods of time as counsel on the case of Regina v. Basi, Basi and Virk. Ultimately, Sloboda had to be severed from the case because Swales suffered two major strokes in August of 2011. It took another year before Swales’ case could be concluded.

The sentencing proceedings have also been delayed as Swales has continued to undergo treatment for the very serious consequences of his strokes. Nature of the Accused’s Involvement in the Offences [ 11 ] The apartment was the site of an ongoing and lucrative drug trafficking enterprise. Swales was not the sole proprietor of the business, but he must have been one of a small group of persons who had access to the apartment and its contents. There was only one fob available to access the building at any one time.

The only point for anyone to go into the apartment would be to access the drugs, cash or firearms inside. [ 12 ] It would not be in the interest of those participating in this business to have anyone else know where their storehouse was located, let alone admit casual visitors. After all, the apartment contained over $1 million worth of drugs and cash - something which would be coveted by other criminals and which would certainly interest the police. [ 13 ] It is likely, as the Crown’s expert said, that the firearms were acquired as part of the ongoing drug business.

That is, the firearms were probably acquired over time. It is unlikely, for example, that they were part of one large shipment from the United States, (where they probably came from). They may have been acquired in exchange for drugs or acquired separately. [ 14 ] In any event, these firearms were "ready to go." Ammunition was available for most of them. Some could be equipped with silencers. Silencers were already attached to some of them. Clearly these handguns were ready for use – almost certainly by other criminals.

[ 15 ] There is no evidence, however, that this cache of weapons was Swales’ personal arsenal. Neither is there any evidence that he ever trafficked in weapons. He has no record of convictions for firearms offences. There is no evidence that he carried or used a firearm on February 18, 2006. [ 16 ] Swales’ culpability in this case centres on him being a party to the trafficking in and possession of a large quantity of cocaine, methamphetamine and ecstasy as well as the unlawful possession of a large quantity of illegal firearms, ammunition and silencers which, like the drugs, were destined for unlawful use.

Circumstances of the Accused [ 17 ] Swales is 42 years old. He has a dated criminal record, his last conviction occurring in 1998, when he received a fine for simple possession of a controlled substance. He has worked at various jobs. Most recently he was the owner and operator of a gym in Surrey. He has since sold that business. He has been on bail throughout the course of these proceedings without any problems during that whole time. [ 18 ] On August 15, 2011 the accused suffered two serious strokes.

His family doctor described the initial effects as follows: “damage to both sides of his brain, causing loss of speech, vision loss, paralysis and numbness, diaphoresis (profuse sweating), and inability to recognize people by their voices." After being admitted to hospital he suffered further strokes. He has undergone intensive therapy ever since. It appears that his condition has improved significantly, but it is clear that the strokes resulted in both life altering and life threatening conditions. [ 19 ] Swales is not married and has no children. He lives with his girlfriend in an apartment.

She is of great assistance to him because he still needs help in performing many of the tasks needed to cope with life on a day-to-day basis. It is unlikely that he will ever be able to work. The Need for Deterrence and Denunciation Drugs [ 20 ] In sentencing offenders for possession of large quantities of cocaine for the purpose of trafficking and of trafficking in cocaine at the "kilo" level the courts have consistently emphasized the need to impose sentences which emphasize deterrence and denunciation. [ 21 ] Cocaine is a particularly destructive drug.

Those of us who sit in Provincial Court see the effects of cocaine addiction on a daily basis. Addicts often have to steal to get money to support their habit. They often lose their families and their own personal health. Methamphetamine is equally destructive. [ 22 ] The business of trafficking in large quantities of cocaine or other illegal drugs is quite destructive to society in additional ways. It rends the fabric of our society. It creates an underground economy, untaxed and unregulated.

The huge amounts of cash generated in this unlawful activity have to be hidden or disguised by further unlawful activity – money laundering. None of the participants pay taxes. Thus there are no contributions to roads, hospitals, schools pensions or other essential services. [ 23 ] The culture of large-scale drug traffickers is essentially outside the law. Rules are enforced by violence or killing. Firearms are an essential part of this culture. Inevitably, innocent persons are endangered and sometimes victimized as they end up in the "crossfire" of the violence of the drug world.

Restricted and Prohibited Firearms [ 24 ] Judges have also stated and restated the pressing need to deter and prevent the scourge of gun crimes. Parliament has, over the years, mandated increasingly harsh punishment for the unlawful possession and use of prohibited and restricted firearms. [ 25 ] Possession and use of handguns has long been severely restricted in Canada. Because there are such vast numbers of handguns in the United States and where possession of them is lawful (for most citizens), it is impossible to expect that Canadian authorities can completely prevent unlawful importation of such weapons.

Once the guns are in Canada, it is virtually certain that those who possess them intend to use them for unlawful, violent purposes. Range of Sentence [ 26 ] The parties agree that in assessing the seriousness of drug offences, courts have regarded importation as the most serious and deserving of the longest sentences. The cases cited to me by counsel show a relatively wide range of sentences – between nine and 20 years imprisonment for importing cocaine.

Sentences for trafficking, conspiracy to traffic in or possession for the purpose of trafficking of large quantities of cocaine typically result in sentences lower than that range. The cases cited to me by counsel suggest that the range is between 4½ to 13 years imprisonment. See Regina v. Bacon 2012 BCSC 983 at paragraphs 18 – 43 for a review of many of those cases. Those offenders who are more deeply involved in the trafficking of cocaine at the multi-kilogram level tend to receive longer sentences.

As in all sentencing cases, it very much depends upon the particular circumstances of the case and of the offender. [ 27 ] For example, in Bacon , supra , the accused was sentenced to 12 years imprisonment on a conviction for conspiracy to traffic in 100 kg of cocaine. Cullen J. decided that the offender should receive a sentence at the higher end of the range.

He cited the following circumstances as supporting the sentence: 1) Bacon had told the supposed vendors (who were undercover agents for the police) that he had a " $3 million float and a ready distribution system." 2) He indicated that he would be prepared to traffic the cocaine in 10 kg lots. 3) The broad scope of the offender’s involvement in the drug trafficking business, his lack of remorse and "apparent commitment to the criminal lifestyle." [ 28 ] Counsel cited other examples of offenders who received prison terms at the higher end of the range. In R. v. Grunwald , [1991] B.C.J.

No. 2245 , the Court of Appeal reduced a sentence of 15 years imprisonment to nine years for an accused convicted of possessing

6 kg of cocaine. The accused had recently been released from prison in the United States for trafficking in marijuana before beingarrested with the cocaine. He also had other convictions for drug offences. [29] In R. v. Bains 2008 BCPC No. 1735, the accused was convicted of conspiracy to traffic in cocaine. He sent 12 kg of cocaine toToronto and indicated to his co-conspirators that he could supply as many as 50 kg per week. He appeared to be at the highest level ofthis distribution network. Higginbotham P.C.J. sentenced him to nine years imprisonment. [30] In contrast, in R. v.

Match 2012 BCSC 1492, two young men were convicted of possession of approximately 40 kg of cocainefor the purpose of trafficking. They were arrested apparently moving this cocaine from a location close to the border further intoCanada. They were not convicted of importing the drug. One of them had no record; the other had an unrelated record. The evidenceseemed to reveal only that they were moving the drugs as opposed to being the owners. Joyce J. sentenced both of them to terms ofimprisonment of 5½ years. [31] In R. v. Camara, [2006] B.C.J.

No. 1478 the Court of Appeal upheld a sentence of five years for conspiracy to traffic in cocaine,trafficking cocaine and a three-year concurrent sentence for possession of cocaine for the purpose of trafficking. The accused obtainedcocaine at the multi-kilogram level and distributed it at a multi-ounce level. He was arrested with 3 kg of cocaine in his possession. Hewas 31 years old and had a criminal record. It took almost 7 years for the trial to be completed, mainly because of an appeal whichordered that a new trial be heard.

Unlawful Possession of Restricted and Prohibited Firearms [32] Counsel were unable to provide me with any sentencing cases involving anything like the large number of firearms found in thiscase. Offenders convicted of possessing multiple prohibited or restricted firearms, loaded or with readily available ammunition, havereceived sentences of 5 to 7 years imprisonment. (The maximum penalty under section 95(1) of the Code is 10 years.) [33] In R. v. Sanghera 2012 BCSC 901, the police found three loaded semi-automatic pistols in a vehicle occupied by the accused.

The accused had a prior conviction for possession of a prohibited firearm and was subject to a 10-year weapons prohibition when theoffence occurred. The trial judge sentenced him to three concurrent seven-year sentences on each of the charges under section 95 (1) ofthe Criminal Code. [34] In R. v. Whyte 2011 ONSC 181, the accused was convicted of possessing 4 restricted handguns – one of them loaded, the otherswith readily accessible ammunition. He was also convicted of possessing two of those weapons for the purpose of transferring them. Hewas 21 years old at the time of the offence and 24 when he was sentenced.

The trial judge sentenced him to concurrent sentences of fiveyears on each of the firearms possession charges and 6½ years concurrent on the "trafficking" in firearms count. [35] In R. v. James Bacon 2010 BCPC 325 , 2010 BCPC 0325, the accused was convicted of possession of 4 loadedprohibited firearms. He had used one of the firearms to shoot back at a person who had shot at him. The four firearms were foundconcealed in a hidden compartment in a motor vehicle in his garage.

The trial judge sentenced him to a global sentence of seven yearsmade up of a four-year sentence for the possession and use of the firearm that he actually shot and three separate consecutive one-yearsentences for possession of the other firearms. [36] As well, the Crown cited cases in which offenders were sentenced both for possessing cocaine and possession of firearmscontrary to section 95(1) of the Code. [37] In R. v. Chin 2009 ABCA 276, the offender possessed one loaded handgun, 15 g of crack cocaine and $3000 in cash. He wassentenced to five years in prison in total. In R. v.

Fusaji 2005 BCSC 1944, the accused was convicted of possession of a small amount ofcocaine for the purpose of trafficking (as well as heroin) and of a loaded prohibited firearm and magazine. The trial judge imposed aglobal sentence of four years before taking into account time served in custody. [38] R. v. Massey 2012 BCSC 935 involved the possession of multiple firearms and a significant quantity of cocaine.

The accusedwas sentenced to a total sentence of 10 years imprisonment for possession of 2 kg of cocaine for the purpose of trafficking, 3 prohibitedfirearms either loaded or with readily available ammunition and 4 other firearms. (Police also seized $100,000 in cash.) A five-yearsentence for the possession of the drugs was made consecutive to a five-year sentence for possession of the firearms. Discussion [39] The fundamental principle in all sentencing cases is proportionality.

Every sentence must be “proportionate to the gravity of theoffence and the degree of responsibility of the offender” (section 718.1 Criminal Code). Where a court imposes consecutive sentences itmust ensure that the combined sentences are not “unduly long or harsh” (section 718.2(

d) of the Code). In particular, the combinedsentence should not exceed the overall moral culpability of the offender. [40] Swales’ moral culpability is very high. He possessed a large quantity of cocaine for the purpose of trafficking; he was observedactually trafficking in 4 kg of that substance. He unlawfully possessed 15 prohibited restricted firearms, 4 other handguns, relatedammunition and silencers.

That collection of firearms represented a grave danger to public safety. [41] However, although the apartment was clearly the site of an ongoing and lucrative drug business, the evidence against Swalescovers a single day. He did not use or threaten to use a firearm. His criminal record is dated, his last conviction occurring in 1998. Hehas two related drug convictions for which he received fines. He has been on bail for six years without incident. He now suffers from avery serious medical condition which will pose a serious threat to his health for the rest of his life.

What is a Fit Total Sentence? [42] There are three sets of distinct offences which would normally require the court to impose consecutive sentences. These are: the"drug offences"; the "firearms offences"; and failing to stop for the police.

[ 43 ] The circumstances of the convictions for trafficking in cocaine and possession of cocaine for the purpose of trafficking, as well as the amphetamine, establish that Swales was involved in the drug trafficking business at a relatively high level. He was not someone who, for example, was just moving cocaine from “point A to point B.” His involvement, however, was at a somewhat different level than the accused in Bacon, who purported to be able to purchase and distribute large quantities of cocaine on an ongoing basis.

Neither was he someone who directed the movement of large quantities of cocaine across Canada on an ongoing basis as in Bains , supra . [ 44 ] In my view, a fit sentence on the most serious drug charge – possession of 19 kg of cocaine – would be nine years. The sentence on the other drug charges would be concurrent prison terms. [ 45 ] The firearms offences are very grave because of the large number of handguns with the availability of ammunition and silencers making it even more obvious how dangerous this collection of weapons was to the public peace and safety.

A fit sentence for the 15 counts under section 95 (1) of the Criminal Code would be nine years. Concurrent sentences would be appropriate for the other firearms counts. A fit sentence for the count of failing to stop for the police would be one year. [ 46 ] If I made the sentences on these three distinct groups of offences consecutive to each other, the total sentence would be 19 years. Having considered that cumulative sentence, it is my view that it would be unduly harsh or long considering Swales’ particular circumstances.

I must therefore reduce the prison terms somewhat. [ 47 ] I impose the following sentences: On count 4 (possession of 19 kg of cocaine for the purpose of trafficking) I sentence the accused to 7 years imprisonment. On counts 1 and 2 (trafficking in and possession of 4 kg of cocaine) I impose a concurrent prison term of 5 years. On count 5 (methamphetamine) I impose a concurrent prison term of 3 years and on count 6 (ecstasy) I impose a concurrent prison term of 2 years.

These terms are concurrent to each other and concurrent to the sentence imposed on count 4. [ 48 ] On counts 10 through 14, 16 through 23, and counts 25 and 26 (15 charges under s. 95(1) of the Criminal Code ), I impose prison terms of eight years concurrent to each other but consecutive to the sentence imposed on count 4.

On counts 8, 9, 15, 24 (4 charges under s. 92(1) of the Code and count 28 (silencers), I impose prison terms of three years concurrent to each other and concurrent to the sentence imposed on the counts under section 95(1) of the Code. [ 49 ] On count 3, failing to stop for the police, I impose a one-year prison term concurrent to the sentence imposed on count 4. [ 50 ] The cumulative sentence in this case totals 15 years imprisonment. [ 51 ] Under

section 109 of the Criminal Code I direct that Swales be prohibited for 10 years from possessing any of the firearms and weapons named in s. 109(2)(

a) and for life on the firearms, weapons, devices and ammunition named in s. 109(2)(b). This applies to counts 1, 2, 4, 5 and 6, 10 to 14, 16 to 23, 25 and 26. [ 52 ] I direct that DNA samples may be taken from the accused pursuant to

section 487.051 of the Criminal Code on counts 1-6, 10- 14, 16- 23, 25 and 26. (These are secondary designated offences.) [ 53 ] There will be no victim fine surcharge. [ 54 ] Mr. Bolton has asked me to make an order, or at least a comment that Mr. Swales’ parole eligibility should be governed by the law that was in effect when the offences were committed. This is important because Parliament has amended parole eligibility rules to eliminate the right of prisoners to apply for parole after serving 1/6 th of their sentence.

This is the Abolition of Early Parole Act . [ 55 ] It is an attractive argument, but it is one that I do not believe that I have jurisdiction to consider. It is my function in this case to determine a fit sentence. I am not, for example, being asked to determine a minimum term that the offender must serve before being eligible for parole. The issue is a complex one, which needs to be argued where the parole board is represented by counsel.

Crown counsel in this case does not represent the parole board. [ 56 ] I understand that the issue of the constitutionality of certain provisions of the Act is presently before the Supreme Court of Canada in the case of Whaling v. Canada (Attorney General) 2012 BCCA 435 . It seems to me that the Supreme Court will decide the point that the accused is asking me to decide. [ 57 ] I therefore decline to make the order requested. _________________________________________ The Honourable Judge P.D. Gulbransen Provincial Court of British Columbia