R. v. Fajkovic Date:, 2015 BCPC 275

Citation: R. v. Fajkovic Date: 20150911 2015 BCPC 0275 File No: 199966-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. AARON ANDREW FAJKOVIC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE E. GORDON Counsel for the Crown: Federal Crown: O. Bick Counsel for the Defendant: P. Briggs Place of Hearing: Surrey , B.C. Dates of Hearing: September 9, 10, 2015 Date of Judgment: September 11, 2015

[ 1 ] THE COURT : Aaron Fajkovic has pled guilty to charges of Trafficking in Cocaine from June 12, 2013, and Possession of Cocaine for the Purpose of Trafficking from June 20, 2013. [ 2 ] By virtue of amendments made to the Controlled Drugs and Substances Act , specifically s. 5(3)(a)(i)(D), Mr. Fajkovic is subject to a minimum term of imprisonment of 12 months because he was convicted of a designated substance offence within the previous ten years. [ 3 ] The expression "dial-a-dope" is used to describe a specific method by which drugs are trafficked.

The buyer calls a trafficker, places an order and the drugs are delivered to the buyer. Courts hold this manner of sale to be particularly heinous because it, in effect, brings dangerous drugs to the masses.

While once drugs were sold in what were reputed to be seedy and dangerous areas of cities which might have deterred many from purchasing drugs out of a fear of going to such neighbourhoods, the delivery-on-demand method is perceived as likely increasing not only usage but addiction. [ 4 ] The police, in the matters before me, were investigating a dial-a-dope line, which is a telephone number available 24 hours a day by which orders for drugs may be placed. [ 5 ] Mr. Fajkovic was sentenced to a one-year conditional sentence order on May 10, 2012.

On May 7, 2013 he drove a co-accused to meet a buyer who was, in reality, an undercover police officer. The co-accused commented to the buyer that he and Mr. Fajkovic were en route from the delivery to Mr. Fajkovic's final probation appointment. [ 6 ] Mr. Fajkovic again acted as a driver for a drug delivery on May 9, 2013. He transacted the delivery of .36 grams of crack cocaine on June 12, 2013, and on June 20, 2013 he was spooked by police officers while delivering a one-half ounce of crack cocaine to the undercover buyer.

He swallowed some cocaine and attempted to obstruct the arrest. 13.75 grams of crack cocaine were found in his vehicle and a further .37 grams from him at Richmond General Hospital. [ 7 ] He was arrested that day and released on a form of judicial interim release on July 19, 2013. He has been absolutely compliant with his bail conditions, family members having deposited $25,000 cash to effect his release. [ 8 ] Following his release on judicial interim release he commenced an electrician apprenticeship program in August of 2013.

He completed the Level 1 course work at the British Columbia Institute of Technology on August 1, 2014, the class work portion of the course having commenced on May 26th, 2014. The next course commences on October 13, 2015 and runs to December 18, 2015. For the first time in his life he has found a profession he enjoys. [ 9 ] He has voluntarily performed community service work while on bail. [ 10 ] Mr. Fajkovic is 27 years old; a twin. He and his brother were raised by a loving single mother. While she was very much one of the working poor, she did her best to provide for her sons. Mr.

Fajkovic did not face the abuse and neglect that many of the individuals who come before these courts had to endure. [ 11 ] He struggled to find his place in society once he graduated from high school, and as a result incurred significant debt, had dead- end employment and began using drugs.

That combination of factors led to his involvement in the first offence. [ 12 ] He has sworn an affidavit in this proceeding that avers to the fact that he became re-involved in drug use because he was on house arrest during the first half of his conditional sentence order, and then in trafficking in the second half of the conditional sentence order. [ 13 ] Mr. Fajkovic lives with Ms. Catherine Morris in a very supportive, loving relationship.

She, his mother, brother, a paternal aunt and cousins are all very supportive of him and are encouraged by the significant rehabilitative steps he has made since his release on bail in July of 2013. [ 14 ] The Crown seeks a period of incarceration of 15 months. Mr. Fajkovic seeks a sentence of six months' incarceration. [ 15 ] Because of the mandatory minimum sentence of one year, the Court of Appeal has directed in R. v. Lloyd 2014 BCCA 224 , that I must determine the sentence that is appropriate for this offender. If it is one of less than 12 months, the application that Mr.

Fajkovic has filed with the court seeking a finding that the mandatory minimum provision is of no force and effect will be considered. [ 16 ] Each offender comes before the court a unique individual having committed a crime under a set of circumstances unique to him or her. That is why sentencing is, by its very nature, an individualized process and why mandatory minimum periods of incarceration are seen as anathema to our system of justice. Having said that, however, even if anathema, the length of sentence may nonetheless be appropriate. [ 17 ] There are a number of mitigating factors in this proceeding. Mr.

Fajkovic entered a guilty plea which is demonstrative of remorse. He has worked hard in a career of his choosing and is doing well. He has found love and is hoping to make a productive life with his partner. [ 18 ] There are a number of aggravating factors as well, not the least of which being that Mr. Fajkovic committed the offences while serving a conditional sentence of imprisonment for the same crime. [ 19 ] In R. v.

Voong , et al 2015 BCCA 285 , Madam Justice Bennett writing for the Court stated: ...absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. (paragraph 59)

[ 20 ] That range, of course, is subject to the general principle that: Imposing a sentence for criminal conduct is in the purview of judges in the trial courts. It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [ 21 ] The affidavit sworn by Mr. Fajkovic is somewhat disingenuous.

He purports to have gone back into drug use because of his six months of house arrest, suggesting he was not allowed out of the house even for employment. "When I was able to work again out of the house I got a job doing odd jobs and renovation through NCC Contracting." (at paragraph 21) [ 22 ] Not only did the order permit him to be outside of his residence for the purpose of employment, his conditional sentence order supervisor approved that very job within one month of the order commencing. [ 23 ] Mr.

Fajkovic avers to be addicted to cocaine and yet has apparently twice, immediately following each arrest, been able to quit cold turkey. [ 24 ] Drug-addicted offenders who sell their drug of choice to fund their own habit are deserving of judicial leniency. Notwithstanding his apparent addiction, Mr. Fajkovic does not appear to be that type of addict.

His addictions were not only not so debilitating as to prevent other forms of employment, they were very easily gotten over. [ 25 ] While he is to be commended for his great and genuine rehabilitation, that is not the overwhelming sentencing objective in this unique case. [ 26 ] Mr. Fajkovic was subject to a conditional sentence order of imprisonment for one year at the time that he recommenced the very same activity. Not only that, he falsely blames his apparent house arrest for that involvement.

It is clear he chose to re-involve himself with what was very easy money rather than genuinely committing himself at that time to the offers of rehabilitation made by his conditional sentence order supervisor, and to the order he was bound by. In such circumstances, general deterrence and denunciation are higher up the scale of sentencing objectives than are Mr. Fajkovic's genuine strives at rehabilitation. He sold cocaine while on a conditional sentence order for selling cocaine.

Cocaine is a vile and insidious drug. [ 27 ] In the circumstances, a sentence of 12 months' imprisonment is not unfit, and I so sentence him. [ 28 ] MR. BICK: Your Honour, that's 12 months less time served, or 12 months after time served? [ 29 ] THE COURT: Oh, yes, 12 months less 45 days' time served. Thank you. [ 30 ] MR. BICK: Thank you. Ancillary orders were unopposed; DNA, 109 lifetime, and a waiver of right to be present at a forfeiture hearing. [ 31 ] THE COURT: Yes. [ 32 ] MR. BICK: DNA is discretionary. [ 33 ] THE COURT: I know. [ 34 ] MR.

BICK: It was ordered by Madam Justice Ross already. [ 35 ] THE COURT: Pardon me? [ 36 ] MR. BICK: It was already ordered by Madam Justice Ross. [ 37 ] THE COURT: Oh, then I am not going to make it again. [ 38 ] You are prohibited from owning or possessing any firearms, ammunition or explosives for life. [ 39 ] All items that were seized from you subject to an order in the Supreme Court dealing with your co-accused will be forfeited to Her Majesty the Queen. [ 40 ] These offences actually pre-date the new surcharge provisions, and because you are going to jail today I will waive the charges. [ 41 ] MR.

BRIGGS: You're just going to – I think Your Honour's already answered my question, but whether Your Honour be interested in postponing the execution of – [ 42 ] THE COURT: No, a sentence is made, he is going to jail now. Thank you. [ 43 ] MR. BRIGGS: Thank you. [ 44 ] MR. BICK: Your Honour, I would ask that the DNA order be made nonetheless that it – even though it's been made before,

that sentence is always subject to appeal, et cetera, extension of time, and it's not redundant to make it again. [ 45 ] THE COURT: Having – [ 46 ] MR. BRIGGS: Sorry, what – [ 47 ] THE COURT: We're talking about DNA. You – [ 48 ] MR. BRIGGS: I don't care. It doesn't matter. [ 49 ] THE COURT: Pardon me? [ 50 ] MR. BRIGGS: I have no submissions on that. [ 51 ] THE COURT: All right. Yes. So Madam Registrar, it is a discretionary order that I am making. [ 52 ] THE CLERK: Thank you, Your Honour. [ 53 ] MR.

BRIGGS: I just want the actual record to be clear on the sentence. [ 54 ] THE COURT: 12 months less 45 days' time served. [ 55 ] MR. BRIGGS: Okay. [ 56 ] THE COURT: Sir, I will say this -- [ 57 ] MR. BRIGGS: Thank you. [ 58 ] THE COURT: -- if you demonstrate to the jail the genuine rehabilitation that I see, they will give you every consideration for early release. [ 59 ] MR. BICK: Your Honour, I'll direct a stay of proceeding on what I believe is Count 18. [ 60 ] MR. BRIGGS: Oh, yes, thank you. The obstruct charge. (REASONS FOR SENTENCE CONCLUDED)