Her Majesty the Queen - v. -, 2012 SKPC 093

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 093 Date: June 6, 2012 Information: 45419890 & 31223260 Location: Prince Albert _____________________________________________________________________________ Between: Her Majesty the Queen - and - Douglas William Fowler Appearing: A. Hunter For the Crown P. Chetty For the Accused JUDGMENT H. M. HARRADENCE, J I. INTRODUCTION [ 1 ] The accused has pled guilty to trafficking in cocaine and possession of money obtained by crime. Both of these offences occurred on March 24, 2011. He has also pled guilty to breach of undertaking by failing to abide by his curfew on one occasion, May 24, 2011.

[2] Firstly, I will impose the sentence on the cocaine trafficking charge. The facts are not in issue. The accused was deliveringcocaine for two known drug dealers who he says he met at the Methadone clinic. On March 24, 2011, the accused met an undercoverofficer at the 7-11 in Prince Albert and thereafter travelled a short distance before he gave the officer six needles containing 10 cc ofcocaine each in exchange for $100.00. The accused gave the officer his cell phone number and told the officer that if he wanted more hecould phone him.

There were no further sales and the accused says that immediately after this delivery he discontinued any furtherassociation with the two known drug dealers. [3] The Crown indicates that the Saskatchewan Court of Appeal has set a range of 18 months to four years for cocainetrafficking. Fairly, the Crown acknowledges that there are exceptions to this range and that a conditional sentence is legallypermissible. In this case the Crown requests an 18 month jail term.

The defence points to the small quantity involved in this case andthe personal circumstances of the offender in requesting a conditional sentence order with strict conditions. II. THE RANGE OF SENTENCES IN SASKATCHEWAN FOR COCAINE TRAFFICKING [4] I accept that the Court of Appeal has identified a range of 18 months to four years, most recently in R. v. Shawile, where Justice Herauf indicated as follows:[1] [12] While we agree that Mr.

Shawile’s circumstances are mitigating and would justify a sentence at the low end of the range, it is ourview that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, whichmust play a significant role in offences of this nature. In R. v. Aube et al, 2009 SKCA 53, 324 Sask.

R. 303, Smith J.A. articulated thispoint as follows: 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personalcircumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is anerror in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencingfactors. See R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23.

This decision, in particular, where the circumstances weremuch less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), (SKCA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56; R. v. Dubai, 2008 SKCA 49; and R. v. McCallum, 2007 SKCA 139. [13] In our view, the 22 month conditional sentence for trafficking in cocaine is demonstrably unfit given the 18 month to four yearrange established in other cases of trafficking offences such as Aube, R. v. Dubai, 2008 SKCA 49, 310 Sask. R. 85; R. v. Kraft, 2008SKCA (SentDig) 36; R. v.

McCallum, 2007 SKCA 139, 302 Sask. R. 298; R. v. Patryluk, 2002 SKCA 33, 217 Sask. R. 309. [5] There is no minimum punishment in the Criminal Code for cocaine trafficking, and in Saskatchewan it is accepted that thereare exceptions to the range identified. Justice Herauf addresses these exceptions in Shawile at paragraph 10, where he says that in thatcase there was no evidence that Mr. Shawile was addicted to drugs, under dire financial circumstances, or committed the offence under duress.

This confirms the Court of Appeal’s earlier ruling in Von Hagen[2] which recognized there are exceptions to the sentencingrange. [6] The Von Hagen decision involves an 18 year old female who was delivering crack cocaine and marijuana to her boyfriend inthe Prince Albert Penitentiary. In that case there was four grams of crack cocaine, valued at $360.00, and 14 grams of marijuana, valued at $200.00. Justice Lane, speaking for the Court of Appeal, found circumstances of duress and indicated as follows:[3] [5] We are all of the view the sentence imposed was not a fit sentence.

We share the sentencing judge’s concerns about drugs in apenal institution and this Court has ruled that bringing drugs into a correctional facility is an important aggravating factor.[2] In this casethe appellant was a first time offender and 18 years of age. We take particular note she was under duress because of threats. Theappellant has done well since the offence, has moved to another city to avoid peer pressure, has ended her relationship with herboyfriend, has taken training, and is now working full time.

She has the full support of her family and is rated as a low risk to reoffend ina very positive pre-sentence report. We note further her employer, along with her family, attended the appeal in support of the appellantwho has been in custody since the sentence was imposed. In our view the personal circumstances of the appellant and the principle ofrehabilitation were not adequately addressed. We are also of the view the sentencing judge inappropriately discounted the fact theappellant was under duress from the threats which were made – in our view a very significant consideration in this case.

His reliance onPankewich in the circumstances failed to reflect the different circumstances in the case before us. Pankewich was part of a sophisticatedcocaine trafficking arrangement involving a considerable greater amount of drugs which were being moved interprovincially.

[6] We are all of the view this is an appropriate case for a conditional sentence. The appeal is allowed and the sentence imposed below is converted to a term of 18 months conditional from the date the sentence was imposed. III. THE APPLICATION OF THE RANGE TO THE CIRCUMSTANCES OF THIS OFFENCE [ 7 ] It is trite law that in all sentencing proceedings the circumstances of the offender and the circumstances of the offence must be considered.

However, the Court of Appeal has repeatedly said that deterrence and denunciation are paramount and the circumstances of the offence are to be considered in priority to the personal circumstances of the offender, which are not to be ignored, but are secondary. [8] In relation to this particular sentencing I make the following findings of fact: i. The accused has a long-standing addiction and abuse of drugs. Indeed he met the two known drug dealers, who requested he make the delivery, while taking treatment at the Methadone clinic. ii. This is a single incident of trafficking.

The evidence before me is that the accused only trafficked on one occasion. iii. The quantity of cocaine is very small, as indicated by defence counsel the precise quantity is unknown, however, we do know that the cocaine was contained in six needles approximately 10 cc each, with a total value of $100.00. As an aside, it was pointed out by defence counsel that Justice Herauf in the Shawile decision, at paragraph 3 indicates that Mr. Shawile was in possession of 53 grams of cocaine, with a street value of up to $9,500.00. [9] The personal circumstances of the accused are as follows: i. He is 48 years old.

He has a criminal record consisting of three thefts and one impaired driving, spanning from 1981 to 2008. He has no prior drug related convictions. ii. He suffers from Paraneal Muscular Atrophy diagnosed when he was a child. This is an inherited disease which causes progressive wasting of muscles, according to the pre-sentence report. From seeing this accused at the time of the sentencing hearing, he is obviously disabled, and walks with a cane. iii. In addition, he suffered a neck injury while working in 1998 and further a back injury in a car accident in 1999.

He was prescribed morphine which was abused by him and his partner at the time, and thereafter the prescription was stopped. iv. According to the pre-sentence report he has a long history of abuse of alcohol and drugs dating back to age 13. He has used and abused a wide variety of drugs, including, marijuana, hash, LSD, morphine, Dilaudid and cocaine. He has had limited success with the Methadone program, and the author of the pre-sentence report opines that he is not serious about attending treatment. v.

He has positive family support in the community, namely his brother, Bradley Fowler, who is a retired Parole Officer. In the pre-sentence report, Luci O’Brien, an experienced Probation Officer notes as follows: As noted Douglas has been in the community since his offence date and has not incurred any new charges. Douglas said he is trying to change in order not to disappoint his family anymore. He has positive support from his brother, and it appears other family members have been more willing to spend time with him and offer support, believing and accepting he has changed. vi.

The pre-sentence report rates him as a medium risk to re-offend.

[10] In R. v. Klyne Her Honour Judge Snell in 2003, as she then was, conducted a thorough review of sentencing cases, involving cocaine trafficking. She applied R. v. P. (K. J.) and Gaveronski, and concluded in paragraph 23 as follows:[4] [23] After reviewing several decisions in Alberta and elsewhere in which conditional sentences had been imposed for street leveltrafficking on more than a minimal scale Justice Jackson stated that such cases are not determinative of the appeal since her Court hasalready stated that conditional sentences are available to those who traffic in hard drugs.

Whether such a sentence will be fit or not willdepend on a wide variety of factors including: the sophistication and significance of the offence and the accused’s place in it, the typeand quantity of drug, the motivation for the offence as those who traffic to support their own habit may be more likely to receive arestorative disposition than those who traffic for other reasons; the need for and utility of the deterrence which will be provided by thesentence imposed; the factors relating to the community such as the significance of the problem and the age, lack of record and otherpersonal circumstances of the accused. [11] Earlier in the Klyne decision at paragraph 14, Her Honour Judge Snell refers to the specific facts in Laliberte where a conditional sentence was imposed by Justice Vancise in relation to the sale of 13 tablets of Dilaudid for $120.00:[5] [14] The Supreme Court made it clear in Proulx, however, that incarceration is not the only way to express denunciation and that aconditional sentence may satisfy this principle.

This was also clearly expressed by the Saskatchewan Court of Appeal in R. v. Laliberte(2002), 2000 SKCA 27 , 189 Sask. R. 190 at paragraphs 35 to 37 of Vancise J.A.’s decision. In Laliberte, a conditionalsentence was upheld for trafficking in a controlled substance, Dilaudid. The amount was fairly small, 13 tablets sold for $120. Theaccused was a user of marijuana but not Dilaudid. She sold the pills to make money.

The accused was assessed at a high risk to re-offend (although she was not criminally oriented) and had presented the probation officer preparing the pre-sentence report with a goodrecovery plan including a return to living in a structured environment with foster parents and participating in a native treatment program.

She had begun to deal with her alcohol and chemical dependency and was undergoing detoxification and treatment at the time ofsentencing. [12] In Klyne Judge Snell concludes that a conditional sentence to be followed by probation is appropriate, she states in paragraph 35, in part: [6] “…Denunciation and general deterrence may be met in this exceptional case by the imposition of a lengthy conditionalsentence with strict conditions plus a term of probation to follow.” Significantly in Klyne the circumstances of the offence included theaccused providing cocaine to an undercover police officer on eight separate occasions.

The total amount of the cocaine was five ounceswith an estimated value of $10,000.00. III. THE SENTENCE [13] Given the circumstances of this offence, and the findings of fact which I have made, I am satisfied that these circumstancesjustify a sentence outside the range directed by the Saskatchewan Court of Appeal. I am further satisfied that a conditional sentencewould not be inconsistent with the fundamental principles of sentencing, and would not endanger the safety of the public. The sentenceon the cocaine trafficking charge will be as follows: a.

A conditional sentence for a term of 18 months, with the mandatory conditions as set out in s. 742.3 of the Criminal Code,and the following optional conditions: i. That he reside as directed by the Supervisor. ii. That he be confined to his residence except as permitted by his Supervisor, or for employment or for medical emergencies,for the first nine months of this order. iii.

For the last nine months of the conditional sentence order he will be bound by a curfew to be in his residence from 11:00p.m. until 6:00 a.m., except with the permission of his Supervisor, or for employment purposes, or for medical emergencies.

iv. That he shall not possess or consume any alcohol or non-prescription drugs. v. That he shall attend alcohol assessment and counselling as arranged and directed by his Supervisor. vi. That he shall perform 120 hours of community service work within the first 12 months of the conditional sentence order. b. Following the conditional sentence order he will be placed on probation for a period of 12 months with the four mandatory conditions, and the following optional conditions: i. That he report to and be under the supervision of a probation officer. ii.

That he shall not possess or consume any alcohol or non-prescription drugs. iii. That he shall attend alcohol assessment and counselling as arranged and directed by his probation officer. [14] In addition, he will be prohibited from possessing any firearms for a period of ten years pursuant to s. 109 of the Criminal Code . [15] In relation to the charge of possession of Canadian currency he will be fined $100.00 in lieu of forfeiture, as requested by the Crown. In relation to the charge of breach of undertaking, given the circumstances, the offender will be fined $250.00. All surcharges are waived.

He is given until October 31, 2012, to pay these fines. [16] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 6 th day of June, A.D. 2012. ______________________________ H. M. Harradence, J