R. v. Hubbard Date:, 2017 BCPC 248

Citation: R. v. Hubbard Date: 20170502 2017 BCPC 248 File No: 16497-1-T Registry: Sechelt IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MATTHEW LLOYD HUBBARD ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE S.M. MERRICK Counsel for the Crown: L. Dumbrell Counsel for the Defendant: D. Karp Place of Hearing: Sechelt , B.C. Date of Hearing: May 2, 2017 Date of Judgment: May 2, 2017

[1] THE COURT: Matthew Lloyd Hubbard has pled guilty to trafficking in cannabis marihuana and possession of cannabismarihuana for the purpose of trafficking, contrary to s. 5(1) and 5(2) of the Controlled Drugs and Substances Act. [2] On April 12th, 2015, Mr. Hubbard flew from Vancouver to St. John's. In Mr. Hubbard's checked luggage was 23 pounds ofmarihuana. On April 13th, 2015, Mr. Hubbard picked up his suitcase at the baggage area of the St. John's Airport and walked out of theairport with it, where he was arrested. [3] Mr. Hubbard provided a statement to police.

He told Constable Wheaton that he knowingly transported the marihuana fromVancouver to St. John's, and that it was to be sold in St. John's. Mr. Hubbard also told the police officer that he had made otherdeliveries of marihuana to St. John's from Vancouver. [4] Mr. Hubbard was searched and in his possession were $4,560 and two cell phones. A search of the room that Mr. Hubbardrented in St. John's revealed two suitcases similar to the ones seized on this occasion, with luggage tags from travel from Vancouver toSt.

John's in March and April 2015. [5] Crown counsel submitted that the value of the 23 pounds of marihuana was approximately $70,000. Position of the Parties [6] Crown counsel submits that the appropriate range of sentence, based on the sentencing precedents from Newfoundland andLabrador, is 12 to 24 months. Crown counsel further submits that considering the mitigating and aggravating factors in this case, theappropriate sentence is 12 months. Crown counsel also submits that the court must follow the sentencing range in Newfoundland andLabrador. In support of that position, Crown counsel referred to R. v.

Bui, 2013 BCCA 168. Finally, Crown counsel submits that thesentencing principles in R. v. Voong, 2015 BCCA 285 that permit the imposition of a suspended sentence in exceptional circumstanceshave not been followed in Newfoundland and Labrador. In support of this position, Crown counsel relied on R. v. Mitchell, NL PC. [7] Defence counsel submits that following the exceptional circumstances principles in R. v. Voong, that the court should suspendthe passing of sentence and place Mr. Hubbard on a lengthy period of probation.

General Sentencing Principles [8] Sentencing is an individualized process in which the court must take into account not only the circumstances of the offence, butalso the specific circumstances of the offender. Although the court must consider all the principles of sentencing set out in the CriminalCode, certain principles will receive more emphasis than others, depending on the nature of the offence committed. [9] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful, and safesociety.

This is to be achieved by imposing sentences which have, inter alia, the objectives of separating offenders from society wherenecessary, denouncing unlawful conduct, general deterrence, rehabilitation, and promoting a sense of responsibilities in offenders andacknowledgment of the harm done to victims and to the community. [10] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similarcircumstances. A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Thesentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or theoffender. An offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. And allavailable sanctions, other than imprisonment, that are reasonable in the circumstances, should be considered for all offenders. See s.718, 718.1 and 718.2 of the Criminal Code.

Additional Sentencing Principles under the Controlled Drugs and Substances Act. [11] Without restricting the general sentencing principles to which I have just referred, the fundamental purpose of any sentence foran offence under the Controlled Drugs and Substances Act is to contribute to respect for the law and the maintenance of a just, peaceful,and safe society, while encouraging rehabilitation and treatment in appropriate circumstances of offenders, and acknowledging the harmdone to victims and to the community. See s. 10(

i) of the Controlled Drugs and Substances Act. Aggravating Factors 1. The large quantity of marihuana seized. 2. The motivation for this offence was essentially profit. 3. This was not the only time Mr. Hubbard travelled to St. John's with marihuana for the purpose of it being sold. Mitigating Factors 1. Mr. Hubbard was cooperative with the police. 2. Mr. Hubbard is extremely remorseful and has entered a guilty plea. 3. Mr. Hubbard has no prior record. 4. Mr. Hubbard has not committed any further offences since being charged with this offence.

5. Mr. Hubbard has received a favourable pre-sentence report. 6. Mr. Hubbard is working fulltime as a carpenter. 7. Mr. Hubbard has community support and has provided the court with reference letters. 8. Mr. Hubbard did not own the marihuana that was seized. He was to receive $2,000 for transporting the marihuana. 9. Mr. Hubbard needed money, in part, to support his drug habit. 10. Mr. Hubbard has abstained from the use of alcohol and drugs since January 2016. 11. Mr. Hubbard is a relatively young man. He is 28 years old.

The Range Of Sentence [12] Crown counsel submits that while the range of sentence for these offences in British Columbia is 9 months, the appropriaterange of sentence in Newfoundland and Labrador is 12 to 24 months. I note that in Newfoundland and Labrador the lower end of therange for possession for the purpose of trafficking by street level dealers of a small amount of marihuana would be 3 monthsincarceration. See R. v. Hunt, 2012 NLCA 5, at paragraph 18. [13] However, as noted in R. v. St.

Croix, 2014 NJ 106, at paragraph 49, when they were available, conditional sentences wereroutinely imposed in Newfoundland and Labrador for the possession for the purpose of trafficking offences. [14] As well, as I advised counsel, R. v. Mitchell was before the Newfoundland and Labrador Court of Appeal. On the appeal, thecourt was being asked to reconsider the range of sentence, to include a suspended sentence with a lengthy period of probation, fortrafficking offences in certain or limited circumstances. That sentence would only be available if quite exceptional or extraordinarycircumstances were present.

See R. v. Butt, , at paragraph 13, a decision of the Newfoundland Court of Appeal. [15] The Mitchell appeal (R. v. Mitchell, 2017 NLCA 26) was decided April 18th, 2017. At paragraph 34, the Newfoundland andLabrador Court of Appeal noted the following: Ms. Mitchell requested that this Court consider adopting the approach of the British Columbia Court of Appeal in R. v. Voong, 2015BCCA 285..., in which the Court imposed a suspended sentence with lengthy probation for trafficking in

Schedule I drugs. As discussedabove, on the facts of the case before this Court, such a sentence would not be appropriate or proportionate. It is necessary, then, to leavethis question for another day. [16] However, a sentence that is outside of the range of sentence can be imposed, so long as it is in accordance with the principlesand objectives of sentencing. See R. v. Nasagaluak, 2010 SCC 6 CanLII, at paragraph 44. Is a Suspended Sentence Appropriate? [17] Absent exceptional circumstances, a jail sentence is warranted.

Since a conditional sentence order is no longer available forpossession for the purpose of trafficking and trafficking offences, it will be the rare case when the standard of exceptional circumstancesis met. See R. v. Voong, 2015 BCCA 285 , 2015 BCJ No. 1335, at paragraph 59. While it would be inappropriate to simplysubstitute a suspended sentence for a conditional sentence order, that does not end the inquiry into whether a non-custodial sentence isfit. See R. v. Voong, at paragraph 62. [18] Mr. Hubbard has no prior record. He is remorseful and accepts responsibilities for these offences.

He attended AA and NA for4 months, and he has abstained from the consumption of alcohol and drugs since January 2016. He is gainfully employed. These aresignificant mitigating factors, as are the other mitigating factors that I have referred to. However, these offences involved a significantamount of marihuana. The motivation was essentially profit and this was not a one-time offence. [19] In these circumstances, it is my judgment that the mitigating factors, in their totality, fall short of the standard of exceptionalcircumstances. Accordingly, I decline to impose a suspended sentence.

The Sentence to Be Imposed [20] As noted in R. v. St. Croix, the range of sentence in Newfoundland and Labrador included a conditional sentence order whenthat was a permitted sentence. I have not been referred to any sentencing decisions from Newfoundland and Labrador that haveconsidered the present inability of a judge to impose a conditional sentence order. [21] This offence involved a large amount of marihuana. The motivation was essentially profit. This was not a one-timeoccurrence. Those aggravating factors must be balanced against the significant mitigating factors.

While rehabilitation is a significantfactor in the sentencing, which, in my judgment, calls for a lower sentence than being sought by the Crown, deterrence and denunciationremain primary sentencing considerations. [22] Mr. Hubbard, would you please stand? I appreciate the efforts that you have made. I have struggled with this. I haveconsidered the mitigating factors. But at the end of the day, it is my judgment that a fit and proper sentence, considering all of theprinciples of sentencing that I have referred to, and weighing the mitigating and aggravating factors, is a term of imprisonment.

Basedon what I have just considered, I hereby sentence you to a term of imprisonment of 9 months. [23] I decline to impose probation. [24] There will be the s. 109(1)(

c) firearms prohibition, which will be read to you by the justice of the peace. It will be for a period

of 10 years. [ 25 ] This is a secondary DNA offence. Precedent 250(b), pursuant to s. 487.051(3)(b). I make an order in Form 5.04, authorizing the taking of the number of samples of bodily substances by any peace officer for the province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Matthew Lloyd Hubbard. [ 26 ] Given the sentence that I have imposed, the victim fine surcharge is $200 on each count. I am not giving time to pay.

There will be two days concurrent on each count, concurrent to each other and concurrent to the sentence that I have just imposed. So the total sentence is 9 months. [ 27 ] Is there anything further? [ 28 ] MS. DUMBRELL: Your Honour, there is just the matter of forfeiture of the cash seized, $4,560. And that was by consent, as communicated. [ 29 ] THE COURT: Yes. So there will be forfeiture of the $4,560. [REASONS CONCLUDED]