R. v. Biernaczyk Date:, 2011 BCPC 176

Citation: R. v. Biernaczyk Date: 20110301 2011 BCPC 0176 File No: 15150-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MICHAEL JAMES BIERNACZYK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. BAIRD ELLAN Counsel for the Crown: J. Whyte Counsel for the Defendant: D. Fairweather Place of Hearing: North Vancouver , B.C. Date of Judgment: March 1, 2011 [ 1 ] THE COURT: The defendant, Michael Biernaczyk, was convicted of possession of cocaine for the purpose of trafficking and is now before me for sentencing.

He was the subject of a tip to the Sechelt RCMP and was apprehended leaving the ferry with over $10,000 worth of powder and crack cocaine, some bear spray, several cell phones, a marihuana grinder and over $2,000 in cash, and paraphernalia consistent with the process for producing crack cocaine from powder. [ 2 ] The information from the tipster was that the defendant had been selling drugs from a house on the Sunshine Coast or dealing with drugs in that location and there was specific information that he had travelled to Vancouver to reload or obtain a quantity of drugs.

The specific amount he possessed was 126.2 grams in six separate packages in both soft and hard form. One of the cell phones contained texts indicating concerns about police presence and the quality of the substance. [ 3 ] The Crown's expert report was that packaged the way it was in some 25-gram bags and some smaller, the substance would be worth between eight and ten thousand dollars. If repackaged in smaller quantities, it could fetch as much as $18,000 or more if cut. [ 4 ] The defendant is characterized by the Crown as a mid-level participant in the drug trade.

It is conceded the facts surrounding his arrest do not establish that he was engaged in a dial-a-dope enterprise or even selling on the arrest date. [ 5 ] However, he has admitted to an intent to distribute the substance, and by virtue of -- I should not say it is admitted, he has been convicted of an intent to distribute the substance, and the evidence supports a conclusion that he was going to do so out of the residence

described. [ 6 ] I say admitted; there was a ruling that the evidence was admissible and following that Mr. Biernaczyk invited conviction. Conviction entails a finding that the intention was for the purpose of trafficking and, of course, with this quantity, that intention would be assumed in any event. Aggravating and Mitigating Factors [ 7 ] The aggravating factors include the quantity of the substance as well as its nature; it is a

Schedule 1 substance for which trafficking is prescribed life imprisonment as a maximum sentence. As well, the defendant had a clear profit intention. The evidence supports a conclusion that he was setting up business on the Coast, and he has not provided any contrary view of the facts apart from what I will say in a moment about his own explanation. [ 8 ] In any event, it is not asserted that Mr. Biernaczyk was driven by a need or desire to fuel any addiction.

The bear spray might also contribute to the aggravating features, but it is asserted and I accept that it was for the purpose of walking a dog and not for self- defence in connection with the offence. [ 9 ] In terms of mitigation, Mr. Biernaczyk is described as cooperative from the outset with the police. He is youthful, about 24 at the time of the offence. He does not have a criminal record. He has had some personal challenges and suffered health issues as an infant.

His counsel submits, and I accept, in consideration of the mother having written a letter, and her memory, and despite the medical evidence I will refer to in a moment, I do accept that to some extent these issues that he has experienced as a child now compromise his capacity to judge or foresee consequences and reduce his ability to control his impulses. Offender [ 10 ] Mr. Biernaczyk's personal history was outlined by his counsel, Mr. Fairweather, in able submissions.

He was raised in the Lower Mainland, Surrey, and now again lives there with his parents who attended the sentencing hearing last time and again today if I am not mistaken, as did his former girlfriend, who figured in the evidence, Amber Haleta, and I do not know if she is present as well today. [ 11 ] He left high school at age 17 and has recently applied to enter an adult education program to take his GED; he may or may not be in that at this time. He has worked at several positions over the years and is described by his parents and others as industrious.

He had received an ICBC award for injuries suffered in a motor vehicle accident somewhat prior to the offence date and was unemployed at the relevant time. As of the last sentencing date, he was working with his parents in their roofing business and augmenting that with some work in insulation and construction. [ 12 ] Mr. Biernaczyk had a difficult childhood, as I have mentioned, having been born premature, struggling through his first few months and then contracting meningitis while an infant, resulting, his mother says, in a brain stem injury.

There is a letter now before the court indicating that that did occur, that there was meningitis diagnosed and some loss of consciousness, although the doctor does take it upon himself to comment that he would find it difficult to believe the ongoing trouble that Mr. Biernaczyk had throughout his childhood and adult life with mental health issues and behaviour problems could be all attributed to this illness, perhaps a gratuitous remark on his part, but in any event. [ 13 ] As I have mentioned, these difficulties, I accept to some extent, affected Mr.

Biernaczyk's ability to weigh consequences and may have caused other problems such as ADHD affecting his schooling. He saw a number of specialists at Children's Hospital and other places over the years. It is to his credit in the circumstances that this is his first criminal involvement and that he has persevered for the most

part in employment. [ 14 ] As of the offence date, he had apparently broken up with Ms. Haleta who was a native of the Sunshine Coast. He had moved out of their residence and found himself with nowhere to live, I am told, living on the last of his settlement money. He had developed some friendships through Ms. Haleta and, in due course, Mr. Fairweather says, he became associated with the house on Reed Road referred to in the evidence. [ 15 ] Mr. Fairweather submits that the description of the police supports Mr.

Biernaczyk's contention that he had come to the house and, being an unsophisticated person without prior criminal experience, foolishly accepted someone's suggestion that he perform this transaction. He submits that there is nothing in the evidence to suggest that this was a sophisticated transaction other than the amount itself. [ 16 ] I must observe, however, that the quantity itself is indicative of a certain level of either connection with higher level suppliers if he was using his own funds or trust within the trade if he was not.

I agree with the Crown that this cannot be characterized as simply an impulsive situation as it might have been perhaps with a smaller amount; it had to be set up and there had to be some prearrangement. And it is clear that there was, because somebody had gotten wind of it and provided a tip to the police that Mr. Biernaczyk was going to Vancouver to purchase a large quantity, or a quantity, of the substance. So whether Mr. Biernaczyk was performing this errand on his own or someone else's behalf, it was profit-driven and indicative of his being significantly embedded in the Sunshine Coast drug trade in my view.

Case Law [ 17 ] Counsel cited the following cases: R . v . Holt , 2008 BCPC 72 , R. v . Vaquerano , 2000 BCCA 343 , R. v. Walkley , 2009 BCCA 87 ,

R. v. Codd , 2002 BCCA 456 , R. v. Schoenhals , 2008 BCCA 380 and R. v. Nguyen , 2003 BCCA 291 among others perhaps. Perhaps the closest case in terms of facts is that of Holt dealing with another offender on the Sunshine Coast with a quantity of cocaine, about two- thirds of that involved here. Judge Rounthwaite, at that time the resident judge in Sechelt, pointed out that deterrence is an important feature in cases arising in small communities. She pointed to local circumstances as supporting deterrence in cases where there is a problem with substances and drug trade in the particular community.

General deterrence and denunciation are said to be most significant in cases of that nature. [ 18 ] Mr. Fairweather sought to distinguish the Holt case on the basis of certain facts not contained in the decision. As they do not figure prominently in Judge Rounthwaite's written reasons, I can only conclude that they were not salient to her decision. [ 19 ] The point that community standards or local conditions are relevant to the concept of deterrence is also emphasized in two of the cases cited, Vaquerano and Codd arising in Fort St. John and another, Walkley , arising in Cranbrook.

I note that Holt had the aggravating feature of a prior record ending seven years prior to the sentencing date, but also it appears that he was an addict, which is a mitigating feature. In this case, Mr. Biernaczyk does not have a criminal record, but he is also not an addict. [ 20 ] The Crown says that the cases cited point to a range of sentences from 12 months in Holt to two years less a day in Nguyen , and I have to agree. I have not been referred to any cases involving this quantity of drugs in which the offender has received a conditional sentence order.

While diminished capacity was considered in Schoenhals to be a mitigating feature, it served only to reduce the sentence, below something that would have been imposed in its absence. [ 21 ] The general principle in the case of R . v . Proulx , 2000 SCC 5 cited by Mr. Fairweather for the defence, establishes that the defendant is eligible for a conditional sentence if he does not pose a danger to the community, the sentence is otherwise within the appropriate range of under two years, and in the case where a non-custodial sentence will otherwise serve the principles of sentencing that apply. Mr.

Fairweather also cited the case of R. v. Chung 2009 BCPC 138 , but in my view it is not comparable to this case in terms of quantity and level of involvement. It has also been superseded by more recent Court of Appeal case law dealing with drug trafficking in which invariably offenders involved in drug trafficking with respect to cocaine and crack cocaine go to jail.

Not invariably, but almost always. [ 22 ] In this case, the primary principles are deterrence and denunciation and, as I read the cases, the Court of Appeal endorses the view that those aims will not be adequately achieved by a non-jail sentence. [ 23 ] Another relevant principle is the concept that like offenders receive like sentences, and others who have committed mid-level drug trade offences like this have received jail sentences.

The court is required to sentence people similarly to each other when they commit certain offences, and the sentence has to be one which essentially matches the crime that is committed as compared with other cases. [ 24 ] There is no basis here on which to deviate from that principle in my view, and unfortunately. The mitigating features that I have noted suggest a sentence at the lower end of the range outlined by the Crown. Balancing the features here with those considered in Holt , in my view, the sentence should be the same here as it was for Mr. Holt. [ 25 ] I will have you stand up, please, Mr. Biernaczyk.

I find I must sentence you to one year imprisonment. [ 26 ] There will be an order under s. 109 prohibiting you from possession of firearms for the requisite minimum period. [ 27 ] I will order that there be a DNA sample taken while you are in custody pursuant to the discretionary secondary section, and I gather that the forfeiture is to go by consent. [ 28 ] Are there any exceptions to the forfeiture order? [ 29 ] MR. WHYTE: Your Honour, my friend and I was going to identify exactly what exhibits we are talking about. I see no difficulty doing that in the coming days. [ 30 ] THE COURT: All right. All right.

You will draw up a consent forfeiture – [ 31 ] MR. WHYTE: I will. [ 32 ] THE COURT: -- and if there is any problem you can come back before me. I will leave that portion of the sentencing open and view myself as not functus if there is an issue. [ 33 ] I wish you luck, Mr. Biernaczyk. [ 34 ] THE ACCUSED: Thank you, Your Honour. [ 35 ] UNIDENTIFIED SPEAKER: Your Honour, the s. 109, what was the length of that? [ 36 ] THE COURT: It is the usual length, sir. I will tell you about it later. (REASONS CONCLUDED)