R. v. Milne Date:, 2013 BCPC 378

Citation: R. v. Milne Date: 20131113 2013 BCPC 0378 File No: 197550-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRENT DOUGLAS MILNE ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: Federal Crown: A. Clarkson Counsel for the Defendant: J. Buchanan Place of Hearing: Surrey , B.C. Date of Hearing: September 23, 2013

Date of Judgment: November 13, 2013 [ 1 ] THE COURT : Brent Milne entered a guilty plea to a charge of Possession of Cocaine for the Purpose of Trafficking. He is before the court for sentencing. Crown counsel seeks a period of incarceration in a penitentiary of four years.

Defence counsel seeks a sentence of two years less one day, to be served in the community via a conditional sentence order. [ 2 ] In February of 2012, an officer of the Abbotsford Police Department received source information that a man named Brent, who was apparently a full patch member of the Hell’s Angels, was trafficking in cocaine at the ounce level at a hotel known as the Alder Inn, in Langley, British Columbia. The informant indicated that the trafficker would supply someone named Richard Taylor. [ 3 ] The police began surveilling Mr Milne. They observed a pattern of behaviour.

Mr Milne would leave his residence and drive to the bar. He would meet with Mr. Taylor, leave the bar and return to his home. He would be back at his home for a brief period, some two to eight minutes. He would then return to the bar. [ 4 ] Members of the surveillance team observed what they believed to be some hand-to-hand transactions between Mr. Milne and Mr. Taylor. The police surveilled Mr. Milne for 13 separate days. Police then sought and obtained a search warrant for Mr. Milne’s home; the warrant was executed on May 16, 2012. [ 5 ] In Mr. Milne’s bedroom, police located cash totalling $25,720.

The cash was in nine separate bundles. Some of the bundles were $1300, which apparently matches the price of an ounce of cocaine. $865 was found in another drawer. A further $960 was located in another bedroom. The monies seized, therefore, totalled $27,545. Additionally, a collapsible baton and bear spray were found in the bedroom. In another bedroom, a total of 792 grams of cocaine was located. It was packaged into smaller amounts, some being one-and- a-half ounces, and some being two-and-a-half ounces. A digital scale and a counting machine were also located.

Police also found brass knuckles and a book of score sheets. [ 6 ] Mr. Milne was released on a Promise to Appear for court in Abbotsford. He attended at court and no Information had been sworn. He was later summonsed to appear in court in Surrey. He has, therefore, been on an unconditional form of judicial interim release since the incident some eighteen months ago. He has not been re-involved with criminal activity. [ 7 ] He has a dated criminal record which ends in 1988.

It contains three convictions for possession of a narcotic under the then Narcotic Control Act , indicating to me that at some point in time in his life Mr. Milne was a drug user. [ 8 ] Crown counsel seeks a period of incarceration of four years. He points out that the evidence in this case suggests that it was a for-profit crime. He argues that general deterrence and denunciation are the primary sentencing principles to be considered, and that the sentence, must be long enough to communicate a message to others seeking to involve themselves with such activity. [ 9 ] He points out a number of aggravating factors.

The first is both the nature of the substance, being Cocaine, as well as the amount of the substance, being three-quarters of a kilogram. [ 10 ] Trafficking in drugs engenders other crimes of both violence and property. It creates addicts and is therefore not a victimless crime in the true sense. Crown counsel points out that not only was Mr. Milne trafficking in a very public place, he was both storing the cocaine in his home and following a very rigid routine.

He would, in all likelihood, attract a potential of violence to his home. [ 11 ] The Cocaine was valuable and would have generated, if sold at the ounce level, $33,464. The Crown points out that when the motivation for trafficking is financial, rehabilitation becomes a less significant principle in the sentencing analysis. This was a business conducted by a man who is not and was not an addict of Cocaine. [ 12 ] It is clear from the monies seized that Mr. Milne was engaging in a for-profit activity.

The Crown asks the court to conclude that there is evidence of ongoing criminality; not only were there weapons, cash and score sheets found in the home, the police surveillance points to no other conclusion. Bearing in mind all of these factors Crown counsel argues that a sentence of four years is appropriate to meet the ends of justice. [ 13 ] Defence counsel acknowledges that imprisonment is appropriate, but argues that the most fit sentence for this offender would be a two-year-less-one-day conditional sentence order.

He argues that the four-year period of incarceration sought by the Crown is reserved for the most dangerous offenders in possession of significantly more cocaine. Mr. Milne is not one of those dangerous offenders. He argues that the drug itself is the only aggravating factor in this case. [ 14 ] Mr. Milne is 51 years of age. He was born in Edmonton and moved to British Columbia at the age of five. He has lived here since. He and his wife have been together for many years. He is step-father to her three children and was to her fourth who was killed in a motor vehicle accident.

As well, he has a 22-year-old son from a previous relationship. He and his wife have three grandchildren. [ 15 ] Mr. Milne’s parents live in White Rock. His mother has, as a result of the charge, cut off all contact with Mr. Milne. His father and he remain close and his father remains supportive of him and attended at the sentencing hearing. Mr. Milne worked for his father in the trucking industry for many years until his father sold the business and retired. Mr. Milne then started his own business which services entertainment machines such as jukeboxes and gambling machines. Mr.

Milne re-mortgaged his home to start the business. [ 16 ] He pled guilty at the earliest opportunity; essentially as soon as full disclosure had been provided to his counsel. In doing so, he abandoned a constitutional argument about the manner in which the warrant was executed and saved the Crown from having to call approximately 30 witnesses to prove its case. [ 17 ] Not only has he demonstrated legal remorse, he is genuinely remorseful. He is very aware of the misery drug use causes. Mr. Milne has suffered a number of economic sanctions already.

He consented to the forfeiture of his vehicles which were seized when he

was arrested; the Province is seeking to forfeit his home. He has amassed significant legal fees as a result. [ 18 ] His case has had extensive publicity causing great humiliation to Mr. Milne’s family. [ 19 ] His counsel argues that his routine and activity belie a level of sophistication. He did not insulate himself from exposure to public eye, nor did he seek to fortify his home. He was, in other words, setting himself up to be caught. [ 20 ] Both counsel provided extensive books of authority and I have read all 27 authorities. People who traffic in cocaine will generally be incarcerated.

The occasions when conditional sentences of imprisonment were warranted appear to be either factually unique or where the individual was motivated by addiction rather than greed. However, there is no such concept as a uniform sentence for a particular crime. (See R. v. Pirouz 2009 BCJ No. 201 , a decision of the British Columbia Court of Appeal.) [ 21 ] I was not advised the reasons Mr. Milne elected to involve himself with the crime. I could speculate; I will not. His silence in law is an acceptance of the Crown’s theory that it was only for profit. [ 22 ] While Mr.

Milne has some involvement with the Hell’s Angels Motorcycle Club, the Crown elected not to use that association as an aggravating factor. That association, however, brought extensive publicity to Mr. Milne and as a result, great shame to his family. [ 23 ] Counsel provided 15 letters of reference. It is hard to believe that Mr. Milne involved himself with the crime, bearing in mind the gentleman described in those letters. His father describes him as a loving and hard-working son. His step-children describe him as a loving, caring, ever-present father.

He involved himself in all aspects of their childhood and encouraged their education. All three are educated, productive adults, living law-abiding lifestyles. His extended family and friends describe a man who organizes charitable events, including an annual event for breast cancer research. He is well-loved and well-respected. [ 24 ] I must consider the imposition of a conditional sentence order; the crime does not bear a minimum period of incarceration and a period of incarceration of less than two years is within the appropriate range. Mr.

Milne was released from custody unconditionally and has demonstrated, through his crime-free behaviour in the ensuing 18 months, that he is not a danger to the community. (See R. v. Huber 2004 BCJ No. 2312 , a decision of the British Columbia Supreme Court.) [ 25 ] Mr. Milne has returned to a productive, law-abiding lifestyle. Neither rehabilitation nor specific deterrence in his circumstances require a period of incarceration; however, cocaine is a vile, insidious drug. Its sale for profit is a very serious criminal activity.

It preys on the weaknesses of others. [ 26 ] The amount of the drug in question and the motivation for involvement are very aggravating factors. In such circumstances, the principles of both denunciation and general deterrence call for incarceration. In the result, notwithstanding that jail will wreak havoc upon Mr. Milne’s family, notwithstanding that I do not doubt his rehabilitation, I have no choice but to sentence Mr. Milne to jail. [ 27 ] The four-year sentence sought by the Crown, however, is much longer than the range of sentence for like amounts of cocaine in all of the authorities provided. Mr.

Milne possessed three-quarters of one kilogram of cocaine. Like cases and like offenders received sentences in the range of two years. [ 28 ] In the result, Mr. Milne, I sentence you to a period of incarceration of two years. (REASONS FOR SENTENCE CONCLUDED)