R. v. Bailey, 2018 NLSC 62

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Bailey , 2018 NLSC 62 Date : March 16, 2018 Docket : 201401G7330 Her Majesty The Queen v. Roy Nicholas Bailey Before: Justice William H. Goodridge Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 16, 2018

Summary: Offender pleaded guilty to possession for the purpose of trafficking in marihuana. He had possession of 13.4 kilograms of marihuana, divided among 26 vacuum-sealed bags. There was a positive Pre-Sentence Report that indicated significant steps toward rehabilitation. The court imposed a jail sentence of 15 months. Appearances: Brenda P. Boyd, Q.C. Appearing on behalf of the Crown Jason A. Edwards Appearing on behalf of the Offender Authorities Cited:

CASES CONSIDERED: R. v. Nasogaluak , 2010 SCC 6 ; R. v. Lundrigan , 2012 NLCA 43 ; R. v. Provost , 2006 NLCA 30 ; R. v. Fillatre , 2011 NLTD(G) 50; R. v. Simmonds , 2011 NLTD(G) 135; R. v. Tatchell , 2011 NLTD(G) 87; R. v. Roach , 2012 NLTD(G) 153; R. v. Sullivan , 2012 NLTD(G) 88; R. v. Giulioni , 2013 NLTD(G) 54; R. v. Lord , 2013 NLTD(G) 5; R. v. Burke , [2013] N.J. No. 243, 339 Nfld. & P.E.I.R. 30 (Prov. Ct.) ; R. v. Tororak , [2013] N.J. No. 353, 2013 CarswellNfld 391 (Prov. Ct.) ; R. v. Brenton , 2016 NLTD(G) 121.

STATUTES CONSIDERED: Controlled Drug and Substances Act , S.C. 1996, C. 19 ; Criminal Code , R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT SENTENCING Goodridge, J. : INTRODUCTION [ 1 ] On December 5, 2017, Roy Bailey pleaded guilty to possession of cannabis (marihuana) for the purpose of trafficking contrary to section 5(2) of the Controlled Drug and Substances Act , S.C. 1996, C. 19 ( CDSA ). Mr. Bailey was in possession of 13.4 kilograms, divided among 26 vacuum-sealed bags. An agreed statement of facts was filed on March 5, 2018 and a conviction was entered today.

ISSUE [ 2 ] The issue is the determination of a fit sentence for this crime. FACTS [ 3 ] On September 13, 2013, members of the Combined Forces Special Enforcement Unit (CFSEU) attended at the Purolator Courier office in St. John’s to conduct a routine inspection of packages. An odor of marihuana was emanating from a package addressed to Mr. Bailey. The package was seized and a warrant was obtained to open the package. An inspection of the contents revealed 18 vacuum-sealed bags, each containing a half kilogram of marihuana.

The contents were replaced with a tracking device and a delivery of the package was made to the address indicated, namely, Mr. Bailey’s apartment. He was the sole occupant of the apartment and he accepted delivery. A silent electronic alarm activated upon opening of the package. The police then entered the apartment and arrested Mr. Bailey. After Mr. Bailey was taken into custody, the police obtained a search warrant under

section 11 CDSA .

The subsequent apartment search resulted in discovery of: ▪ three unopened vacuum-sealed bags of marihuana and one opened bag of marihuana (combined weight of 1.8 kilograms); ▪ knapsack containing five unopened vacuum-sealed bags of marihuana (combined weight of 2.6 kilograms); ▪ 18 vacuum-sealed bags with marihuana residue; ▪ Ziploc clear plastic bags with marihuana residue, ▪ three cellphones; ▪ notes about marihuana grow equipment; ▪ bear spray, axe, mallet, and baseball bat; and ▪ score sheets. [ 4 ] The street value of the 13.4 kilograms of marihuana seized, if sold at the gram level, would be from $203,745 to $271,600; the street value, if sold at the pound level, would be between $74,750 and $104,650.

The opinion of Cst. Robert Strong (attached to the agreed facts) states that this amount of marihuana “is consistent with a quantity that a mid to high level trafficker would have in their possession”. objectives and principle of sentencing [ 5 ] The objectives and principles of sentencing are set out in the CDSA and the Criminal Code , R.S.C. 1985, c. C-46. [ 6 ]

Section 10 of the CDSA provides: Purpose of sentencing 10

(1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this

Part is to contribute to the 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 harm done to victims and to the community. Factors to take into consideration

(2) If a person is convicted of a designated substance offence for which the court is not required to impose a minimum punishment, the court imposing sentence on the person shall consider any relevant aggravating factors including that the person (

a) in relation to the commission of the offence, (

i) carried, used or threatened to use a weapon, (ii) used or threatened to use violence, (iii) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, in or near a school, on or near school grounds or in or near any other public place usually frequented by persons under the age of 18 years, or (iv) trafficked in a substance included in

Schedule I, II, III, IV or V, or possessed such a substance for the purpose of trafficking, to a person under the age of 18 years; (

b) was previously convicted of a designated substance offence; or (

c) used the services of a person under the age of eighteen years to commit, or involved such a person in the commission of, the offence.

(3) If, under subsection (1), the court is satisfied of the existence of one or more of the aggravating factors enumerated in paragraphs (2) (

a) to (c), but decides not to sentence the person to imprisonment, the court shall give reasons for that decision.

(4) A court sentencing a person who is convicted of an offence under this Part may delay sentencing to enable the offender (

a) to participate in a drug treatment court program approved by the Attorney General; or (

b) to attend a treatment program under subsection 720(2) of the Criminal Code . Minimum punishment

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted. [ 7 ]

Section 718 of the Criminal Code indicates that a fundamental purpose of sentencing is that of contributing, along with crime prevention, to respect for the law and the maintenance of a just, peaceful and safe society. This purpose is met by the imposition of just sanctions that reflect the various sentencing objectives as set out in the same provision.

These sentencing objectives include: denunciation, general and specific deterrence, separation of offenders, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgement of the harm caused to the victim and to the community (see R. v. Nasogaluak , 2010 SCC 6 at paragraphs 39 and 40 ). In drug trafficking cases the emphasis is usually on the sentencing objectives of denunciation and deterrence. [ 8 ]

Section 718.1 of the Criminal Code mandates that a sentence be “proportionate to the gravity of the offence and the degree of responsibility of the offender”. Whatever weight I give to the sentencing objectives (listed above), the resulting sentence must respect this principle of proportionality. Proportionality means that a sentence should not exceed what is just and appropriate given the moral blameworthiness of the offender and the gravity of the offence.

Section 718.2 provides a non-exhaustive list of secondary sentencing principles, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality and a requirement to consider all available sanctions other than imprisonment that are reasonable in the circumstances. MINIMUM AND MAXIMuM SENTENCE [ 9 ] Under section 5(3) of the CDSA there is a no minimum punishment under the current facts and circumstances. There is a maximum punishment of life where the volume of marihuana exceeds three kilograms, as is the case here.

Fit Sentence [ 10 ] The issue is the determination of a fit sentence for this crime. A fit sentence is one that takes account of the circumstances of the offence and the offender ( R. v. Lundrigan , 2012 NLCA 43 ). The circumstances of the offence are outlined above in the

summary of the agreed facts. The circumstances of the offender are outlined in the Pre-Sentence Report (PSR), which I summarize below. These circumstances are mostly positive and favour increased consideration of the sentencing objective of rehabilitation. It is evident from the PSR that rehabilitation is already underway. PRE - SENTENCE REPORT

[ 11 ] Mr. Bailey is 35 years old. He has no prior drug-related offences and no prior criminal infractions of any type over the past 11 years. He admits that he has been trafficking in drugs since age 16, and that he used the profits on drug sales to finance his own drug habit. He has an addiction to cocaine. During the four and half years since this charge was laid, Mr. Bailey has made significant efforts to overcome this addiction. He attended the Humberwood Treatment Centre in Corner Brook in 2013 and The Grace Centre program in Harbour Grace in 2016.

He currently attends Narcotics Anonymous on a regular basis. He has discontinued association with negative peers and discontinued use of drugs and alcohol. Mr. Bailey admits that he ‘slipped’ on one occasion since completing the 2016 treatment program, but he remains committed to the recovery process. [ 12 ] Mr. Bailey successfully passed his high school equivalency exam in 2012. He subsequently enrolled in the College of the North Atlantic (CNA) where he completed the four-year welding program. He qualified as a journeyman welder, red seal certification, while working at M&M Offshore Ltd.

He currently works on a seasonal basis with Blazer Concrete. [ 13 ] Mr. Bailey has been involved in a long-term relationship (14 years) and has one child from that relationship. The couple have had some recent issues, but Mr. Bailey is hopeful that his abstinence from drugs and alcohol and improved lifestyle will resolve these issues, and allow the positive relationship to continue. [ 14 ] Mr. Bailey acknowledges that his participation in this drug trafficking activity was wrong and he takes full responsibility for his wrongful actions.

He agrees that his cocaine addiction was a significant contributor to his criminal behavior. CROWN POSITION [ 15 ] Crown counsel filed several authorities indicating a sentence range from nine to thirty-six months. The Crown is suggesting a sentence, under Mr. Bailey’s facts and circumstances, somewhere within the range of eighteen to twenty months. DEFENCE POSITION [ 16 ] Defence counsel argues that Mr. Bailey’s facts and circumstances support a sentence well below the sentence suggested by the Crown. There are mitigating factors, such as the guilty plea, acceptance of responsibility, and the positive PSR.

There was full compliance during the past four and half years with the release conditions imposed by the court. Significant positive steps toward rehabilitation were taken over that same time period. SENTENCING AUTHORITIES [ 17 ] The sentencing authorities filed by the Crown guide the court in crafting a fit sentence for Mr. Bailey, at least to the extent that the circumstances are comparable. [ 18 ] In R. v. Provost , 2006 NLCA 30 the offender was convicted of two separate counts of possession of marihuana (combined weight of 3.3 kilograms) for the purpose of trafficking.

Rowe, J.A. stated at paragraph 57 that the high end of the range for trafficking in marihuana (at this quantity) is 24 months per count. After adjustment for totality, Rowe, J. A. reduced the duration of sentence imposed at trial, to 34 months. [ 19 ] In R. v. Fillatre , 2011 NLTD(G) 50 at paragraph 16, Seaborn, J. noted that a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration. This is relevant to Mr. Bailey since most of the authorities filed allowed ‘conditional’ sentences.

A comparable jail sentence should be of shorter duration than a conditional sentence, to maintain parity. [ 20 ] In R. v. Tatchell , 2011 NLTD(G) 87 the offender agreed to play a minor role in a drug trafficking business. He accepted two packages of marihuana (combined weight of one kilogram) on behalf of the principal player. He did not open the packages but knew the content to be an illicit drug. He agreed to accept delivery and pass the packages on to the principal player in the drug trafficking business. The court accepted a joint submission on sentence at nine months (conditional) plus probation.

This sentence was based on a joint submission and, for that reason, is of limited assistance in guiding this court toward a ‘fit’ sentence for Mr. Bailey. [ 21 ] In R. v. Roach , 2012 NLTD(G) 153, the offender pleaded guilty to possession of marihuana for the purpose of trafficking. His role in the drug trafficking business was that of courier, and the quantity was 16 kilograms. The court imposed a sentence of 21 months (conditional) followed by probation. The conditional sentence is not available to Mr. Bailey because of recent amendments to the Criminal Code .

However, based upon Fillatre (at para. 16) a compatible jail sentence for Mr. Bailey should be less than 21 months. [ 22 ] In R. v. Sullivan , 2012 NLTD(G) 88, the offender was convicted after trial for possession of marihuana for the purpose of trafficking. His role in the drug trafficking business was that of courier, and the quantity of marihuana involved was 22 kilograms. He had a significant prior record: four convictions for drug trafficking and three convictions for drug possession. The court accepted a joint submission of three years in jail.

The larger quantity of drugs and the prior record are significantly distinguishing factors. A comparable sentence for Mr. Bailey, allowing for differences in the mitigating and aggravating factors, would be significantly below the sentence imposed on Mr. Sullivan. [ 23 ] In R. v. Giulioni , 2013 NLTD(G) 54, the offender pleaded guilty to possession of marihuana for the purpose of trafficking. His role in the drug trafficking business was that of courier, and the quantity of marihuana involved was 11 kilograms. There was a positive PSR, and no recent history of criminal activity.

Crown and defence counsel both proposed sentences in the range of 12 to 15 months. The offender was sentenced to 15 months (conditional) followed by probation. Mr. Bailey’s role was more than a courier based on items seized in his apartment. [ 24 ] In R. v. Lord , 2013 NLTD(G) 5, the offender pleaded guilty to possession of marihuana for the purpose of trafficking. His role in the drug trafficking business was that of courier, and the quantity of marihuana involved was 5 kilograms. There was a positive PSR and no prior criminal record. The offender was sentenced to 14 months (conditional) followed by probation.

Mr. Bailey was more than just a courier, and the quantity of marihuana in his possession was greater.

[ 25 ] In R. v. Burke , [2013] N.J. No. 243, 339 Nfld. & P.E.I.R. 30 (Prov. Ct.) , the offender pleaded guilty to possession of marihuana for the purpose of trafficking. His role in the drug trafficking business was that of courier, and the quantity of marihuana involved was 25.4 kilograms. There was a positive PSR and no prior criminal record. The court accepted a joint submission of two years less a day (conditional) followed by probation. [ 26 ] In R. v. Tororak , [2013] N.J. No. 353, 2013 CarswellNfld 391 (Prov.

Ct.) , a 44 year old aboriginal offender, with a lengthy criminal record, pleaded guilty to possession of marihuana for the purpose of trafficking. The quantity of marihuana involved was a half kilogram. He was sentenced to two years less a day (conditional), followed by probation. [ 27 ] R. v. Brenton , 2016 NLTD(G) 121, a 40 year first time old offender was convicted after trial for possession of marihuana for the purpose of trafficking. The quantity of marihuana involved was 18 kilograms.

There was a negative PSR, outlining a bad attitude with the offender, little respect for law, and no acceptance of responsibility. Handrigan, J. indicated that the range of sentence for this quantity was 18 to 24 months. He imposed a sentence of 21 months imprisonment. This case has similarities to our facts and circumstances: similar quantity, similar method of receipt (postal service), and similar use of profits (to finance person drug consumption). The case has significant differences. Mr.

Bailey has a positive PSR; he has a positive attitude (shows self-awareness for his actions); he has shown a commitment to rehabilitation; and he accepts responsibility for his unlawful actions. Mr. Bailey’s sentence should be less by comparison. mitigating factors [ 28 ] The guilty plea, the positive PSR, and the active steps taken toward rehabilitation, are mitigating factors. aggravating factors [ 29 ] The volume of marihuana, and the weapons discovered in Mr. Bailey’s apartment (bear spray, axe, mallet, and baseball bat) are aggravating factors.

DISPOSITION [ 30 ] I agree with the comments of Crown counsel that the broad range of sentence of this offence, and this quantity, is nine to thirty- six months. The predominance of mitigating factors (guilty plea, positive PSR, and steps toward rehabilitation) justify a sentence at the mid to lower end of that range. Jail term [ 31 ] I impose a jail term of 15 months. Firearm Prohibition [ 32 ] Pursuant to

section 109 of the Code, I impose a firearm prohibition. This is a lifetime prohibition in the case of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition; and it is a ten-year prohibition for other firearms, cross-bows, restricted weapons, ammunition and explosive substances. Victim Fine Surcharge [ 33 ] Pursuant to section 737(2)(

b) Mr. Bailey shall pay a victim fine surcharge of $200.00, within 30 days. Seizure Order [ 34 ] I grant an order, pursuant to section 16(1) of the CDSA , that all offence- related property seized by the police in connection with this offence be forfeited to Her Majesty the Queen in Right of Canada to be disposed of in accordance with the law. The Samsung cellphone is not part of the offence- related property and it shall be returned to Mr. Bailey. [ 35 ] Crown counsel shall provide a copy of the draft order to counsel for Mr. Bailey prior to filing with this Court.

If there is any dispute as to which items constitute offence-related property, then the Crown may apply for a determination. DNA Order [ 36 ] I exercise my discretion and decline to make a DNA Order.

SUMMARY [ 37 ] Following Mr. Bailey’s conviction under section 5(2) of the CDSA (possession for the purpose of trafficking in marihuana) the Court imposes sentence and issues orders as follows: (

i) Jail term of 15 months; (ii) 10 year firearm prohibition; (iii) Forfeiture of all offence-related property; and

(iv) Victim fine surcharge. _____________________________ William H. Goodridge Justice