R. v. Noseworthy, 2019 NLSC 23

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Noseworthy , 2019 NLSC 23 Date : February 1, 2019 Docket : 201401G1160 Her Majesty The Queen v. Rodney Dwayne Noseworthy Before: Justice Alphonsus E. Faour Reasons for Judgment Given Orally Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: January 21, 2019 Date of Oral Judgment: February 1, 2019

Summary: The Offender was acquitted at trial of conspiracy, however, on appeal a conviction was entered, and the matter was remitted to this Court for sentencing for his conviction on two counts of conspiracy to traffic in cocaine and marihuana, and he was sentenced to 30 months, less credit for time on remand for a net sentence of 20 months. Orders for Probation for one year, weapons prohibition and a forfeiture of property were also imposed.

Appearances: Elaine M. Reid Appearing on behalf of the Crown John W. Lavers Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Noseworthy, 2018 NLCA 69; R. v. Huynh, 2017 NLTD(G) 44; R. v. Noftall, 2017 NLTD(G) 128; R. v.Noftall, 2017 NLTD(G) 185; R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 1992 CarswellNfld 222 (C.A.);R. v. Murphy, 2018 NLSC 256; R. v. Kane, 2012 NLCA 53; R. v. Melvin, 2000 NFCA 17; R. v. Parsons (1993), (NLCA), 108 Nfld. & P.E.I.R. 359, 1993 CarswellNfld 86 (C.A.); R. v. Gould, 2016 NLTD(G) 97; R. v. Parsons, 2015 NLTD(G) 180; R. v.Snow, 2006 NLTD 3; R. v.

King (1993), (NL SC), 110 Nfld. & P.E.I.R. 266, 1993 CarswellNfld 167 (S.C.(T.D.)); R.v. Folke, (1987), (NL SC), 66 Nfld. & P.E.I.R. 265, 1987 CarswellNfld 153 (S.C.(T.D.)); R. v. Newson, 2008 BCCA28; R. v. Pazder, 2016 ABCA 209; R. v. Le, 2010 SKCA 22; R. v. McGregor, 2017 ONCA 399; R. v. Sol, 2016 ONSC 605; R. v. Shields,2014 NSPC 69; R. v. Field, 2013 NSPC 51; R. v.

Strong, 2019 ONCA 15 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19 REASONS FOR JUDGMENT Faour, J.: INTRODUCTION [1] On June 27, 2017, I acquitted Rodney Noseworthy of three counts of conspiracy to traffic in marihuana, codeine andphenacetin. On Appeal by the Crown, convictions were entered on two counts, and the matter was remitted to this Court for sentencing (Court of Appeal Decision R. v. Noseworthy, 2018 NLCA 69). [2] The indictment named Mr. Noseworthy and his co-accused Charles Noftall, Tan Tai Huynh and Alex Prefontaine. The otherthree accused were dealt with separately.

The counts on the indictment for which Mr. Noseworthy has been convicted and is now to besentenced alleged that the offender: Count 1 On or between the 11th day of June, 2012 and the 4th day of March, 2013 at or near St. John’s, Newfoundland and Labrador and at ornear Montreal, Province of Quebec and elsewhere within Newfoundland and Labrador and the Province of Quebec, did unlawfullyconspire, the one with the other or others of them and with Uriah (Roy) Alcock, Keith Walsh and persons known and unknown, to trafficin a controlled substance to wit: cannabis marihuana, contrary to Section 465(1)(

c) of the Criminal Code in respect of an offence underSection 5(1) of the Controlled Drugs and Substances Act, S.C., 2996 [sic], c. 19. Count 2 On or between the 11th day of June, 2012 and the 4th day of March, 2013 at or near St. John’s, Newfoundland and Labrador and at ornear Montreal, Province of Quebec and elsewhere within Newfoundland and Labrador and the Province of Quebec, did unlawfullyconspire, the one with the other or others of them and with Bruno Rodrigues, Keith Walsh and persons known and unknown, to traffic ina controlled substance to wit: cocaine, contrary to Section 465(1)(

c) of the Criminal Code in respect of an offence under Section 5(1) ofthe Controlled Drugs and Substances Act, S.C., 2996 [sic], c. 19. [3] The facts supporting these convictions were canvassed in my decision of June 27, 2017, (2017 NLTD(G) 125) and thedecision of the Court of Appeal on December 3, 2018 (2018 NLCA 69). The conspiracy involved the importation of drugs from Quebecby several of the co-accused, and the distribution in this Province by the offender and others. They are summarized in the decision of theCourt of Appeal at paragraphs 5 and 6: 5 The uncontroverted evidence, agreed to by Mr.

Noseworthy, established that he communicated with all three of the men namedabove, by text, telephone and in person, on matters related to acquiring the drugs from Mr. Noftall at the garage and remitting the salesproceeds to Mr. Prefontaine for return to Quebec. As well, the evidence established that Mr. Noseworthy was a frequent visitor to Mr.Noftall's garage, that Mr. Noseworthy was aware of how the drugs had been brought into St. John's, and that it was those drugs that heagreed to sell and did sell, locally. The evidence also established that Mr. Noseworthy arranged for his friend Keith Walsh to become a

trafficker of drugs obtained from Mr. Noftall at his garage, and that Mr. Noseworthy arranged for relocation of Mr. Walsh's stash when Mr. Walsh became nervous about storing his stash at his own home. 6 In addition to the agreed and uncontroverted evidence referenced above, Mr. Noseworthy gave viva voce evidence. He testified that when he initially agreed to traffic the drugs he only knew that Mr. Noftall could supply him with drugs to sell. Mr. Noseworthy's evidence was that he knew three days before meeting Mr. Prefontaine and Mr. Huynh that drugs were coming into Mr. Noftall's garage for sale.

He said that by December 2012, he had met Mr. Prefontaine and Mr. Huynh in Mr. Noftall's garage and knew the nature of their business relationship with Mr. Noftall, and that although he did not know the details of the transport of the drugs initially, he knew those details before his birthday on January 26, 2013.

He testified that on his birthday he advised his wife that he: ... was getting away from Tai, Alex and Charlie because what they had on the go was like way above anything that I ever got involved with because by this time, about a week before my birthday I was under the understanding of exactly how, like, how crazy the whole picture of the whole thing was because it took a while, because they didn't just come out and tell me, oh, we're doing this and this much comes every couple of weeks and this does that, I was just told there's stuff here now. There's, this is here, this is available and that's available.

Not exactly how much, I never, ever see the whole load. They asked me to help 'em unload the vehicle. I told 'em downright, no, I don't want nothing to do with any of that, I just wants to be the guy, just I'll come to you if I need something or I'll drop something off to you, but once I wrapped my head around what they were actually doing, I then said it to my spouse, on my birthday, ... I did not want to be involved with it.

I mentioned it to her and she told me to either ship out of that or ship out of her life ... there was still $5,000 that I had to collect off one of my friends, and I told him, when I gives you that $5,000 that's it and I said, and then he contacted Dmitri, 'cause we had $21,000 there and that's when I met Dmitri, that evening, around 11:30 that evening ... I used to always just go give him money. Any time I wanted any drugs, I would just get it from Charlie.

So, Dmitri or Tai never, ever gave me drugs, ever, I always was meeting with them to give them money. (Transcript, June 13, 2017, at 43-44.) [ 4 ] The Court of Appeal also agreed that the facts disclosed that this offender’s role in the conspiracy was less than that of the others. It noted, at paragraph 19: 19 The fact that Mr. Noseworthy was not an original member of the conspiracy did not prevent him from becoming a member later. Nor does the fact that his role in the conspiracy might be described as a lesser one than the roles of other members.

In short, the agreed evidence and his own testimony lead to the inevitable conclusion that Mr. Noseworthy was a member of the conspiracy. [ 5 ] Based on these facts, I received submissions on sentencing from counsel. PRINCIPLES OF SENTENCING [ 6 ] The principles I must apply in sentencing the offender are set out in the Criminal Code , R.S.C. 1985, c. C-46 (the “ Code ”). The starting point is to refer to the sections in the Code that specify the range of sentencing for these offences when the Crown proceeds by indictment. [ 7 ] In section 465(1)(

c) the penalty for conspiracy to commit an offence is the same as the penalty for the offence itself. It reads as follows: 465(1) Except where otherwise expressly provided by law, the following provisions apply in respect of conspiracy: (

c) every one who conspires with any one to commit an indictable offence … is guilty of an indictable offence and liable to the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable; [ 8 ]

Section 5 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 prohibits trafficking in any substances listed in

Schedule I or II. Cocaine is listed in

Schedule I, and Cannabis (marijuana) is listed in

Schedule II. Subsection 5(3) provides for a maximum sentence of life imprisonment for trafficking in

Schedule I or II substances. [ 9 ] The sentence must also reflect the principles of sentencing.

Section 718 of the Code provides the basic framework, and in recent years the principles therein articulated have been supplemented by amendments. The Code sets out the objectives of sentencing to include denunciation of unlawful conduct, deterrence in respect of the offender and the general public, to protect society by removing an offender from the community, rehabilitation of the offender, and to acknowledge the harm done to the community. [ 10 ] The Code also directs the court to consider, in imposing sentence, any aggravating or mitigating factors.

In the facts of this case, the scale of the operation with which the offender was involved is certainly an aggravating factor. I am also directed to craft a disposition that will assist the offender in his rehabilitative efforts and will promote a sense of responsibility for the harm done to the community. The final disposition will attempt to strike a balance among these diverse objectives. CROWN’S EVIDENCE ON THE SENTENCING [ 11 ] While there was one previous conviction, the Crown acknowledged that the offence arose within the currency of the charges before this Court.

That charge was laid arising from the same investigation that led to these offences. As a consequence the Crown

agreed that for the purposes of sentencing, he can be considered as a first-time offender. The Crown also acknowledged his positive pre-sentence report (PSR) as a mitigating factor. [12] The Crown also provided background on the dispositions respecting Mr. Noseworthy’s co-accused. He was initially chargedalong with three others with the offences of conspiracy to traffic in several prohibited drugs. One of the co-accused, Alex Prefontaine,had his charges transferred to Quebec. For another, Tan Tai Huynh, the more serious charges were dropped, and he pled guilty to alesser offence of trafficking in phenacetin.

In a decision by Justice Burrage of this Court, reported at R. v. Huynh, 2017 NLTD(G) 44, hewas sentenced to 306 days, being the time served on remand (at para. 59). [13] The remaining co-accused, Charlie Noftall, was convicted of three counts of conspiracy to traffic in marihuana, cocaine andphenacetin: R. v. Noftall, 2017 NLTD(G) 128. He was sentenced to a term of incarceration of 36 months: R. v. Noftall, 2017 NLTD(G)185. SUBMISSIONS ON BEHALF OF THE OFFENDER [14] Much of the background provided is from the PSR completed at the request of the Court. The offender is now 41 years old.

He reports close family relationships, both in the past and present. He reports that he is close to his mother and sister. He is currently ina common-law relationship that has persisted for 13 years. They have one child, age nine. They appear to get along well with eachother. Mr. Noseworthy has three other children between the ages of 14 and 24 arising from a previous relationship. He reports a goodand functional relationship with their mother.

He also reports that he remains active in all his children’s lives. [15] The PSR reports that he began using marihuana as a teenager and continued its use for about 20 years. He denies that he haspersonally used any other illegal drugs. He appears to have no difficulties with alcohol. I accept that addiction is not a factor in hiscurrent situation. [16] His only criminal conviction, apart from the current offences, arose in 2015 and is related to trafficking in a controlledsubstance. The Crown has acknowledged that it arose within the currency of the current charges.

He did not serve time in prison for thatoffence and was sentenced to a conditional sentence and probation. [17] He has a Grade 11 level of education, and requires only a few credits to obtain his high school diploma. He has not had anyfurther formal education. He is currently employed with a courier company as an independent contractor. That employment may be injeopardy arising from these current charges. [18] Both in his personal and employment relationships he is described as a hard worker with a strong work ethic.

He has expressedconcerns that a period of incarceration would have a negative effect on his spouse and children. [19] In

summary, his PSR presents a very positive profile, which he asks be considered in any disposition arising from thesecharges. It appears his employment history is positive and provides an encouraging outlook for his future prospects. His latest employerhas been supportive; however, the impact of the current offences on his employment is quite uncertain. The positive attributes portrayedin the PSR would indicate that he should be able to create a productive life once he has paid his debt to society. [20] The PSR is ambiguous in whether he accepts responsibility for these offences.

However, the positive aspects outlined offersome hope for the future. The assessment of his suitability for community service, or some other court-ordered supervision, indicates apositive outlook for rehabilitation. [21] At the conclusion of the hearing, I asked the offender if he wished to say anything to the Court. He gave what seemed to me tobe a heartfelt and sincere statement of regret for these offences. He described how it had affected his life, and that of his family. Hereiterated that he felt his involvement was less than the others but agreed that it was the biggest mistake of his life.

When he said howworried he was about his family he broke down. He said he didn’t care what happened to him but was very concerned about the impacton his children and his partner. He said he was truly sorry for what has happened. He appeared to have accepted responsibility for theoffences and expressed remorse for his actions. FACTORS TO CONSIDER [22] The Code directs me to consider both aggravating and mitigating factors in assessing the sentence to be imposed. Theaggravating factors, which are obvious in the facts, relate to the scope of the conspiracy to traffic in illegal drugs of which he was amember.

In R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 1992 CarswellNfld 222 (C.A.) Justice Steeleoutlined the factors to be considered where the conspiracy was to traffic in prohibited drugs, at paragraph 58: 58 In cases where there is evidence of large scale commercial distribution, the following primary factors are ordinarily considered insentencing: 1. The type of drug involved 2. The quantity 3. The sophistication of the organization and its potential for profit

4. The period of time during which the organization existed prior to the arrest, and 5. The "role" or "level" of the accused within the hierarchy of the criminal organization. [23] In assessing the first four of these five factors, it was clear from the evidence that on each, the conspiracy was at the higher endof the spectrum. The drugs involved, marihuana, cocaine and phenacetin, present serious public safety issues, in particular the lattertwo. There were large quantities of drugs imported into the Province by the operation of this conspiracy, although the evidence did notdisclose exact amounts.

However, the amounts of cash involved, in the tens of thousands of dollars, indicate that this was not a smalloperation. [24] The drugs were imported into this Province from Quebec. Huynh and Prefontaine made arrangements in that province to hidethe drugs in the gas tanks of motor vehicles, and transport them to this Province. Noftall used the facilities of his auto-repair garage toremove the drugs from the gas tanks and make them available for distribution and sale into the local market. The three co-accusedappeared to have a network of dealers in this Province to whom they supplied the drugs they imported.

This was a fairly basicarrangement involving importation of drugs and distribution to dealers. It was not a sophisticated enterprise. [25] The agreement among the three co-accused seems to have arisen sometime in the first half of 2012. Their activities appearedto attract the notice of police sometime in June 2012 and persisted for the next nine months until arrests were made in March 2013.

While the evidence on the amount of drugs involved was not specific, it did appear that large amounts of drugs and money wereinvolved. [26] The fifth factor, the role of the offender, shows that he was at the lower level in the organization. Mr. Noseworthy was notinvolved at the beginning. He only came into view of police in December 2012. His testimony during the trial indicated that he wasmaking moves to end his participation in the operation by February, 2013. At most, his involvement was for a period of just over threemonths, whereas the co-conspirators were active for at least nine or ten months.

He did not participate in any aspect of importation of thedrugs, nor was he involved with Noftall in removing the drugs from the gas tanks of the vehicles in which they were stored. His role waslimited to distribution into the network established by the others, collection of funds, and remitting them to one of the other three. As Ihave noted, the Court of Appeal acknowledged that his role was less than that of the other members of the conspiracy. I believe theevidence disclosed that he was, at most, a minor player.

As such, sentencing must take his lesser role into consideration. [27] There are no aggravating factors, other than his low-level participation in the conspiracy. He is a first time offender with a verypositive PSR. He has no history of criminal behaviour or violence and these offences, by his own admission, were the “biggest mistake”of his life. [28] The main mitigating factors are his minor role in the conspiracy and the positive antecedents as set out in the PSR.

While heappears to have been aware of, and participated in, some aspects of the operation, he was not one of the guiding minds of the enterprise. [29] Against this background, I have to find an appropriate sentence that takes these factors into account. I will first review theauthorities to determine the appropriate range of sentence for this offence. THE APPROPRIATE SENTENCE [30] The Crown acknowledged his positive antecedents but submitted that these offences were serious and should attract asignificant period of incarceration.

Based on a series of authorities in the Court of Appeal for this Province, it recommended that asentence of four years’ incarceration was appropriate. [31] Counsel for the Offender argued that I consider his rehabilitative prospects, and the fact that he has already spent aconsiderable period of time on remand. He suggested that his antecedents, no criminal record, a record of long-term employment, andhis family commitments justify a lenient response. He also pointed to the changing attitudes toward marihuana offences, as set out in R.v.

Murphy, 2018 NLSC 256, to buttress his argument for a disposition much less than that proposed by the Crown. [32] The Crown submitted the following authorities: [33] R. v. Kane, 2012 NLCA 53: The accused pleaded guilty to conspiracy to traffic in marihuana and cocaine. He was not theleader of the conspiracy, but a mid-level participant in an interprovincial drug ring. The Court of Appeal upheld a conditional sentence oftwo years less a day, while emphasizing that the normal sentence for this offence should be in the range of four years’ imprisonment. [34] R. v.

Melvin, 2000 NFCA 17: Similar to Kane the offender was a mid-level participant in a conspiracy to traffic in cocaine. Hehad excellent prospects for rehabilitation. His sentence was reduced from 66 months to 48 months. [35] R. v. Parsons (1993), (NL CA), 108 Nfld. & P.E.I.R. 359, 1993 CarswellNfld 86 (C.A.): Offender wasconvicted of conspiracy to traffic in cocaine involving the importation of the drug into the Province. He was sentenced to two years lessa day.

The Court of Appeal dismissed an appeal by the Crown, saying that the offender, in making efforts to rehabilitate himself, shouldnot be returned to custody. [36] R. v. Oates: The Court of Appeal found it was an error to impose a sentence of two years less a day for conspiracy to traffic incocaine, but refused to increase the term of incarceration. Because the offender had demonstrated efforts at rehabilitation it confirmedthe sentence imposed by the trial judge. [37] R. v.

Gould, 2016 NLTD(G) 97: The court accepted a joint submission of four years’ incarceration for possession of cocainefor the purpose of trafficking.

[38] R. v. Parsons, 2015 NLTD(G) 180: The offender was convicted of conspiracy to traffic in cocaine. The offence involved asingle transaction, and the offender was not a significant player in the conspiracy. The court said that a conditional sentence wasinappropriate, and imposed 25 months incarceration. [39] R. v. Snow, 2006 NLTD 3: The offender was found guilty of conspiracy to traffic in cocaine. Since his arrest, he haddemonstrated a strong propensity for rehabilitation. He was sentenced to three and a half years.

The court indicated that the overridingprinciple was deterrence, notwithstanding his efforts at rehabilitation. [40] R. v. King (1993), (NL SC), 110 Nfld. & P.E.I.R. 266, 1993 CarswellNfld 167 (S.C.(T.D.)): The offenderwas convicted of conspiracy to traffic in cannabis resin. There were two offenders. The first was sentenced to a prison term of 21months on the basis that his involvement was less significant than his co-accused. For the second, he was sentenced to incarceration forfour years on the basis that it was his second offence and his involvement was more serious. [41] R. v.

Folke, (1987), (NL SC), 66 Nfld. & P.E.I.R. 265, 1987 CarswellNfld 153 (S.C.(T.D.)): Sentenced tofive years for conspiracy to traffic in cocaine. [42] R. v. Newson, 2008 BCCA 28: Appeal of a sentence of six years was dismissed. [43] R. v. Pazder, 2016 ABCA 209: Appeal of a total sentence of 69 months was dismissed. [44] R. v. Le, 2010 SKCA 22: Appeal of sentence of 27 months was allowed, and sentence of four years substituted. [45] R. v. McGregor, 2017 ONCA 399: Crown appeal of sentence was dismissed.

The Court said: 13 …While a very heavy sentence was warranted in this case, we cannot say that it is an error of law beyond the discretion of thetrial judge to have imposed five years as part of a total sentence following a guilty plea and that is in accord with other sentences towhich the parity principle applies. [46] R. v. Sol, 2016 ONSC 605: The court attempted to balance the commission of a very serious drug offence with the antecedentsof a young, first-time offender who had a family. He had a positive PSR.

The sentencing judge noted that a conspiracy offence meansthe trafficking persisted over a period of time. It was not one discrete event. It was also motivated by greed and not driven byaddiction. A sentence of four years was imposed. The court also gave him some credit for abiding by strict bail conditions for morethan two and a half years. That resulted in a sentence of 42 months. [47] R. v. Shields, 2014 NSPC 69: The offender was convicted of conspiracy to traffic in cocaine. He had good antecedents andwas a first-time offender. A sentence of four years was imposed. [48] R. v.

Field, 2013 NSPC 51: The offender was convicted of conspiracy to traffic. A sentence of five years was imposed. [49] The Crown’s authorities support a sentence for trafficking in cocaine in the range of four to five years. That includes cases forwhich the offender had good antecedents and a reasonable prospect of rehabilitation.

However, I note that several cases in our Court ofAppeal, while indicating the normal sentence would be at least four years, there was a recognition that it would not be in the interests ofjustice to interfere with a lower sentence because of the efforts at rehabilitation taken by the offenders (see Kane, Parsons, and Oates). [50] Based upon these authorities the Crown argued that a sentence in the range of four years for the offences involving cocainewas appropriate. It also suggested that the marihuana offence should attract a sentence in the range of two years, to run concurrently.

While legalization of marihuana is a recent event, I was referred to a recent decision of the Ontario Court of Appeal in R. v. Strong, 2019ONCA 15. The court was not prepared to accept that legalization reflected changed attitudes that should correspond with more lenientsentencing. [51] The Defence submitted one case, a decision of Justice Burrage of this court in Murphy. In that case, possession of cannabis forthe purposes of trafficking, a suspended sentence was imposed. The offender had very positive antecedents.

The court also consideredthe recent legalization of marihuana, and that this indicates that the community denunciation, normal in these cases, was diminished. [52] The Defence, citing Murphy, his lesser role in the conspiracy, and his positive antecedents, is suggesting a suspended sentenceof two years with suitable conditions. [53] One additional factor may be relevant in this case. Because of the circumstances giving rise to delay in the prosecution of thismatter, Mr. Noseworthy has been subject to court-imposed restrictions for almost six years.

In the Sol case in Ontario, Justice Conlonbased a reduction in sentence on a similar circumstance. He took into account the period of time that the offender had been under court-imposed conditions. He said, at paragraph 57: 57 Although I was not specifically asked to do this by the Defence, I think that it would be fair to reduce that global sentence by sixmonths to give Mr. Sol some credit for having abided by strict bail conditions for more than 2.5 years. R. v. Downes, (ON CA), [2006] O.J. No. 555 (Ont.

C.A.). [54] Applying the same approach in this case would involve providing a higher level of credit than in Sol, given the much longertime this offender has been under court-imposed bail condition. ANALYSIS OF SUBMISSIONS [55] The Crown’s approach is based on authorities that establish a range of sentences of about four years for trafficking in cocaine. Since by section 465(1)(

c) of the Code an offender convicted of conspiracy to commit an offence is liable for the same punishment as forthat offence, the same penalty should apply. The Crown also acknowledges that conspiracy to traffic in marihuana would attract a lesser

penalty. In recommending a sentence of four years for the first offence involving cocaine, and two years concurrent for the second offence involving marihuana, the Crown is responding to existing authorities. [ 56 ] The Defence in its recommendation is relying on what it assumes is a more relaxed attitude to drug offences since the recent legalization of marihuana. That view is canvassed quite thoroughly by Justice Burrage in Murphy . However, in recommending a suspended sentence the Defence does not address the more serious charge involving cocaine.

Cocaine has been consistently viewed as a “hard” drug, more harmful to society than marihuana, which should attract a more severe penalty. [ 57 ] I accept that the normal range for these offences would attract sentences in the range recommended by the Crown. There are, however, other factors I must consider. [ 58 ] First, his involvement in this conspiracy has been acknowledged as lower than that of the co-conspirators. Huynh, Prefontaine and Noftall were involved from the beginning and took the lead roles in the operation. Mr.

Noseworthy was not involved in the importation and unloading (from the vehicles) of the drugs, nor did he have a role in the overall direction of the operation. He became a part of the conspiracy very late in the game. His involvement was lower in his participation and its duration. [ 59 ] Given his involvement, it would seem reasonable that a lesser sentence should be imposed than that of his co-accused. In sentencing Mr. Noftall, Justice Goodridge (as he then was) referred to the decision in which Huynh was sentenced: R. v. N oftall , 2017 NLTD(G) 185. He said, at paragraph 27: 27 In R. v.

Huynh , 2017 NLTD(G) 44, the Crown dropped the cocaine conspiracy charge and accepted a guilty plea for the lesser charge of conspiracy to sell phenacetin, contrary to section 465(1) (

c) of the Criminal Code . The Crown sought a two year jail sentence, and the court imposed a sentence of time served (306 days). In the agreed facts Mr. Huynh admitted his involvement in the same conspiracy to traffic in cocaine in and around St. John’s from June 2012 to March 2013. His role was to arrange for transport of the drugs from Quebec to St. John's in the gas tanks of vehicles, distribute the drugs to several mid-level traffickers in St.

John's, and collect and transport the resulting proceeds back to several addresses in Quebec. … [ 60 ] He went on to refer to the decision of the Court of Appeal in Kane where the issue of parity with co-accused was discussed at paragraph 30: 30 … an unjustified disparity among sentences imposed on co-conspirators may not only be viewed by the offenders and others as unjust, but such disparity may also tend to bring the administration of justice into disrepute.

This is not to say that differences in circumstances of the offenders and their roles in the conspiracy should not be taken into account and may result in disparate sentences. However, the sentences imposed on co-conspirators, including sentences imposed as a result of joint submissions, should be taken into account. … [ 61 ] While Mr. Noftall was sentenced to a higher penalty than Huynh, he was convicted of a more serious offence. I cannot look behind the Crown’s decision to accept a guilty plea to a lesser offence in the case of Huynh, but I must consider the sentence of 36 months imposed on Mr. Noftall.

I am satisfied that it would be unacceptable to impose a sentence on Mr. Noseworthy that was higher than that of Mr. Noftall, or indeed, any of the co-conspirators. [ 62 ] Additionally, I have reviewed the reasoning of Justice Conlon in the Sol case, one submitted by the Crown for consideration. Mr. Noseworthy has spent almost six years under bail conditions. Added to that, the stress of having these charges interrupt and disrupt his life. It can be said that he brought this upon himself by participating in the conspiracy to commit illegal acts.

The Crown has also pointed out, with justification, that many of the delays in the prosecution of these offences were driven by the defence, some by Mr. Noseworthy himself. [ 63 ] Notwithstanding that he is responsible for what has happened to him, I accept the reasoning of Justice Conlon that some credit ought to be given.

If six months credit for being under bail conditions for two and one-half years was appropriate in Sol , then a greater credit is reasonable in this case where the period approaches six years. [ 64 ] I also have to consider the offender’s prospects for rehabilitation and his expressions of remorse in his oral statement to the Court. His history and antecedents as reflected in a very positive PSR would indicate that his involvement in this operation was somewhat out of character for him, although he has accepted responsibility for his actions.

He also has a family that will be profoundly affected by a lengthy jail term. While a jail term is warranted, in particular for the offence involving cocaine, if it is excessively long it may have a crushing impact on his long-term prospects. [ 65 ] Accordingly, I will impose a sentence that is less than that received by Mr. Noftall, and I will give credit for the time on remand. While I accept that the normal sentence for the offence involving cocaine should be in the range of four years, in the context of this offence, a sentence of 30 months is appropriate.

Against that I would give credit of 10 months for the time on remand, for a net period of incarceration of 20 months.. [ 66 ] For the offence involving marihuana, I will impose a sentence of 18 months, to run concurrently with the other sentence. [ 67 ] Since his net sentence is under two years, I am permitted to impose a period of probation. Accordingly, I will impose a probation order of one year, with the usual statutory conditions, and to include no communication or contact with Charlie Noftall. ANCILLARY ORDERS [ 68 ] The Crown has made two additional requests.

It seeks an order under section 109(1) of the Code prohibiting the offender from possessing any weapon as set out in the provision. Since this is a first offence, the order will have effect for 10 years. This a mandatory order, and it will be issued. [ 69 ] The Crown also seeks a forfeiture order under

section 16 of the Controlled Drugs and Substances Act in respect of certain

property and cash seized during the investigation into these offences. This is appropriate, and I agree that it should be issued. Counsel will consult on the contents of the order, and have leave to file a consent order to this effect. Failing agreement, the Crown may apply.

DISPOSITION [ 70 ] For the offence of conspiracy to traffic in cocaine, a sentence of 30 months is imposed, less credit of 10 months for time under court-imposed conditions, for a net sentence of 20 months in prison. [ 71 ] For the offence of conspiracy to traffic in marihuana, a sentence of 18 months is imposed, to run concurrently with the first sentence. [ 72 ] Probation for one year is also imposed, with the statutory conditions, including no contact or communication with Charlie Noftall. [ 73 ] Orders under subsection 109(1) of the Code respecting a weapons prohibition, and under

section 16 of the Controlled Drugs and Substances Act respecting forfeiture of property related to the offences will be issued. On the latter order, counsel are to agree on the contents of the order, but failing agreement, the Crown may apply. _____________________________ Alphonsus E. Faour Justice