R. v. Ivey, 2018 NLSC 58

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Ivey , 2018 NLSC 58 Date : March 15, 2018 Docket : 201601G1644 Her Majesty The Queen v. William Ivey Before: Justice Robert P. Stack Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 20, 2018

Summary: The offender was sentenced on two counts of trafficking in a controlled substance and one count of possession of a controlled substance for the purpose of trafficking, pursuant to sections 5(1) and 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (the “ CDSA ”). Upon his arrest, the following were found in the offender’s apartment: 25 oxycodone pills, 37 clonazepam pills, 57 temazepam pills, and 37 Seroquel (quetiapine) pills.

The sentences imposed were: for count No. 1, trafficking in oxycodone - imprisonment for 16 months; for count No. 3, trafficking in clonazepam - imprisonment for six months to be served concurrently with the sentence imposed in respect of count No. 1; and for count No. 5, possession of temazepam for the purpose of trafficking - imprisonment for six months to be served concurrently with the sentence imposed in respect of count No. 1. In addition, probation was ordered for 18 months and the offender was made subject to firearm, DNA and forfeiture orders. Appearances:

R. Neil Smith Appearing on behalf of the Crown Catherine E. Boyde Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Anthony (2004), 235 Nfld. & P.E.I.R. 154, 699 A.P.R. 154 (N.L Prov. Ct.); R. v. J.E.M. (2004), 236 Nfld.& P.E.I.R. 239, [2004] N.J. No. 117 (N.L. Prov. Ct.); R. v. Mitchell, 2017 NLCA 26; R. v. Bearns (1989), (NL CA),77 Nfld. & P.E.I.R. 103, 240 A.P.R. 103 (Nfld. C.A.); R. v. Roper (2010), 95 W.C.B. (2d) 417, [2010] O.J. No. 6087 (Ct. J.), aff’g 2011ONCA 479; R. v. Drake (2012), 320 Nfld. & P.E.I.R. 1, 993 A.P.R. 1 (N.L. Prov. Ct.); R. v. Kappeler, 1999 ABCA 100; R. v.

MacLellan,[2000] O.J. No. 5744 (Ct. J.); R. v. Whittaker, 2001 ABQB 873; R. v. Reddick, 2013 NSSC 70; R. v. Strickland, 2010 NLTD 2;; R. v.Woodford (2013), (NL PC), 335 Nfld. & P.E.I.R. 336, 1040 A.P.R. 336 (N.L. Prov. Ct.); R. v. Bonnie, 2013 ONCJ243; R. v. Webber, 2013 ABCA 189; R. v. Stapleton, (N.L. Prov. Ct.); R. v. Al-Amiri, 2015 NLCA 37; R. v.Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206; R. v. Hepditch, 2018 NLSC 55; R. v. Hutchings, 2012 NLCA 2; R. v. Crocker(1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.); R. v.

Martin, 2018 NLCA 12 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Stack, J.: INTRODUCTION [1] Following a trial, Mr. Ivey was convicted on two counts of trafficking in a controlled substance and one count of possessionof a controlled substance for the purpose of trafficking, pursuant to sections 5(1) and 5(2) of the Controlled Drugs and Substances Act,S.C. 1996, c. 19 (the “CDSA”), as follows: Count No. 1 On or about the 7th day of April, A.D., 2015, at or near St.

John’s, in the Province of Newfoundland and Labrador, did unlawfully trafficin Oxycodone, a substance listed in

Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commit anindictable offence, contrary to Section 5(1)-5(3)(

a) of the said Act. Count No. 3 On or about the 7th day of April, A.D., 2015, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfully trafficin Clonazepam, a substance listed in

Schedule IV of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, and did thereby commitan indictable offence, contrary to Section 5(1)-5(3)(

c) of the said Act. Count No. 5

On or about the 7th day of April, A.D., 2015, at or near St. John’s, in the Province of Newfoundland and Labrador, did unlawfully have in his possession, for the purpose of trafficking, Temazepam, a substance listed in

Schedule IV of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 , and did thereby commit an offence, contrary to Section 5(2)-5(3)(

c) of the said Act. [ 2 ] What sentence should Mr. Ivey receive for each of the offences taking into account the factors in sections 718.1 to 718.2 of the Criminal Code , R.S.C. 1985, c. C-46? In answering, I must consider the primary principles of denunciation and deterrence in sentencing for drug crimes. I must also consider the circumstances of the offender and the circumstances of his crimes. the facts upon which Mr. Ivey was convicted [ 3 ] The evidence at trial disclosed that Mr.

Ivey was running a small retail business in prescription drugs from his apartment. [ 4 ] As to count numbers 1 and 3, I was satisfied beyond a reasonable doubt that Mr. Ivey trafficked in clonazepam and oxycodone based upon the following evidence: 1) The police surveillance of the many short visits to his apartment by a variety of people; 2) The police surveillance of Mr. Ivey going to places for a short time where controlled substances could be obtained for purchase and resale; 3) The presence in Mr.

Ivey’s apartment of 25 oxycodone pills, 37 clonazepam pills, 57 temazepam pills, and 37 Seroquel (quetiapine) pills, some in unmarked bottles and at least one with a woman’s name on the label; 4) The presence in Mr. Ivey’s apartment of a digital scale, a pill crusher and a score sheet; 5) Mr. Ivey’s admission to the police that he was selling Percocet (oxycodone); 6) Mr. Ivey’s possession of $450 in small bills; and 7) Text messages on Mr.

Ivey’s cell phone evidencing trafficking activity in controlled substances, including clonazepam and oxycodone. [ 5 ] As to count number 5, I was satisfied that the Crown proved beyond a reasonable doubt that Mr. Ivey possessed the 57 temazepam pills for the purposes of trafficking. pre-sentence report [ 6 ] The Pre-Sentence Report (“PSR”) does not provide much insight into Mr. Ivey’s antecedents or his future prospects. This is through no apparent fault of the author of the PSR. Rather, it is because, as with the offences upon which I have convicted him, Mr.

Ivey blames all of his troubles on others, whether his landlords, immigrants, his neighbours or the judicial system. [ 7 ] What we do know about Mr. Ivey is that he is now 43 years old and has a Grade 11 education supplemented by an automotive technician program from Central College. He has never worked in the automotive field. He supplements his income support through the “odd hobble,” mostly home renovations and automotive repair. [ 8 ] Formerly, Mr. Ivey was addicted to oxycodone and Ritalin. He denies any current use of alcohol or drugs. Mr.

Ivey is now on a methadone program. mr. ivey’s criminal record [ 9 ] Mr. Ivey has a short and dated criminal record for property-related crimes. His two most recent convictions for possessing property obtained by crime were committed in 2007 and he received a suspended sentence and probation for 12 months. Before that, you have to look back to 1998 and 1996 for further property-related criminal activity. None of his crimes were obviously drug related. position of the crown [ 10 ] The Crown relied upon the following cases: a. R. v. Anthony (2004), 235 Nfld. & P.E.I.R. 154, 699 A.P.R. 154 (N.L. Prov.

Ct.) where Hyslop, PCJ, following a guilty plea, sentenced the 20-year-old offender who was severely addicted to OxyContin to six months in prison for a series of property-related crimes. In doing so, he remarked at paragraph 7, “The problems associated with abuse of this legal drug … are staggering in their depth and perniciousness.”

b. R. v. J.E.M. (2004), 236 Nfld. & P.E.I.R. 239, [2004] N.J. No. 117 (N.L. Prov. Ct.), is another decision of Hyslop, PCJ, where,following a guilty plea, he sentenced a 22-year-old to a global sentence of 24 months. JEM was addicted to oxycodone, which the trialjudge found to be an explanation, not an excuse. He went on in paragraph 7 to state: This is not an impulse crime. It is a planned and deliberate activity engaged in by a person who needs money to support a drug addiction.If he and others driven by this powerful drug cannot earn enough money, they will get the funds any way they can.

Unchecked, thisbehaviour puts the entire community at risk […]. c. R. v. Mitchell, 2017 NLCA 26, is a recent decision of our Court of Appeal. There, a 19-year-old first offender was involved in a“dial-a-dope” trafficking scheme. Welsh, J.A., for the court, confirmed that the range of sentences for possession of cocaine for thepurposes of trafficking is six to 36 months. The trial judge imposed a sentence of 15 months imprisonment. On appeal, the sentence wasreduced to seven months.

The factors taken into account by the Court of Appeal included: the offender’s young age; her addiction tooxycodone; that upon being arrested she immediately sought help for her addiction; that she separated from her addicted boyfriend andmoved back with her parents; that she was employed; and that she was successfully participating in a methadone program. She wasdescribed as a minor street level trafficker of a

Schedule 1 drug. d. R. v. Bearns (1989), (NL CA), 77 Nfld. & P.E.I.R. 103, 240 A.P.R. 103 (Nfld. C.A.), is the 1989 decision of theCourt of Appeal that set the six to 36-month sentencing range referred to in Mitchell. There, an 18-month custodial sentence was imposedfor trafficking in 21 grams of cocaine. Of interest in the case against Mr.

Ivey, Goodridge, C.J.N. held at paragraph 14: Where the evidence discloses that the possession is part of an ongoing business operation as opposed to an isolated transaction, no greatdistinction need be drawn between sentencing for trafficking and sentencing for possession for the purpose of trafficking. The maximumsentence for both is in any event life imprisonment. e. In R. v. Roper (2010), 95 W.C.B. (2d) 417, [2010] O.J. No. 6087 (Ct. J.), following a guilty plea, the offender was sentenced to 19months in prison for trafficking in 34 oxycodone pills.

At paragraph 75, the court held: This Court, at least on a weekly basis, deals with people whose lives have been destroyed by [OxyContin]. I have no difficulty in seeingit as a various serious drug rivalling heroin, and certainly more serious than cocaine. The trial sentence was upheld by the Ontario Court of Appeal (R. v. Roper, 2011 ONCA 479). f. In R. v. Drake (2012), 320 Nfld. & P.E.I.R. 1, 993 A.P.R. 1 (N.L. Prov. Ct.), the accused pleaded guilty and was sentenced to 16months imprisonment (together with a concurrent six months for possession of morphine) and probation for two years.

There, theoffender was found with 89 oxycodone tablets, 59 morphine tablets, a set of weigh scales, $4000 in cash, a set of brass knuckles, a largequantity of improperly secured shotgun shells and three cell phones. The offender’s criminal record dated back to 1998. Porter, PCJ,found the drug trafficking operation to be motivated by profit. g. R. v.

Kappeler, 1999 ABCA 100, is an Alberta Court of Appeal decision where the 30-year-old offender with no drug-related priorconvictions was effectively sentenced to 42 months in prison for selling two four milligram tablets of Dilaudid (dihydromorphinone – adrug that Crown counsel considers “up the scale” of seriousness from oxycodone). Crown counsel acknowledged that the Alberta courtsgenerally tend to impose higher sentences for drug trafficking than do the courts in this jurisdiction. h. In R. v. MacLellan, [2000] O.J. No. 5744 (Ct.

J.), the 52-year-old offender pleaded guilty and was sentenced to 21 months fortrafficking in small amounts of methadone and Percodan (aspirin and oxycodone) and larger amounts of Dilaudid. The trafficking wasdescribed as high level, even though the profits were small and the motivation was addiction. At paragraph 47, Knazan, J. said: This does not excuse his knowingly trafficking in dangerous pills while being aware that they could end up in the hands of someone notyet addicted and result in an addiction just like his. That is very serious.

The finding that his profit was small and to feed his ownaddiction indicates a lesser degree of responsibility and gravity than someone trafficking in the same amounts for pure profit. i. R. v. Whittaker, 2001 ABQB 873, is another Alberta decision where a 49-year-old with a long record including three relativelyrecent convictions for trafficking, pleaded guilty to trafficking two tablets of Dilaudid and was sentenced to four years in prison. j. R. v. Reddick, 2013 NSSC 70, is a Nova Scotia case where the offender pleaded guilty to selling one Dilaudid pill to feed his owncocaine habit.

He had a lengthy criminal record, although not for drug-related offences. The court held that there was to be no distinctionin the appropriate sentencing principles in cases involving Dilaudid as opposed to cocaine. Notwithstanding that, the normal sentence forsuch an offence would be two years or more because a single pill was involved that most likely came from the offender’s ownprescription and the transaction was intended to feed his own addiction as opposed to being for profit; a sentence of sixteen months wasimposed. k. R. v.

Strickland, 2010 NLTD 2, involves a 54-year-old who pleaded guilty to possessing for the purpose of trafficking cocaine,OxyContin and ecstasy to support a gambling addiction. He was sentenced to 16 months in prison together with probation for three years.At paragraph 21, Handrigan, J. quoted from Marshall, J.A. in R. v. Oates (1992), (NS FC), 100 Nfld. & P.E.I.R. 289,218 A.P.R. 289 (Nfld. C.A.), as follows: [21] Cocaine is considered a “hard” drug, unlike, for example, marijuana. In R. v.

Oates, Steele, J.A. noted that, while the druglegislation of the day, the Food and Drugs Act and the Narcotic Control Act, “…do[es] [sic] not distinguish between the so called ‘hard’and ‘soft’ drugs for sentencing purposes - the courts do. He said that his “…review of Canadian case law clearly shows that the courtshave little sympathy for dealers in ‘hard’ drugs such as heroin, cocaine and morphine. Convicted traffickers in the ‘hard’ drugs canexpect to be treated far more severely than, say for example, a trafficker in marijuana. One who traffics in a ‘hard’ drug knowinglyincreases the risks and consequences”.

[Footnotes omitted.] l. R. v. Woodford (2013), (NL PC), 335 Nfld. & P.E.I.R. 336, 1040 A.P.R. 336 (N.L. Prov. Ct.), where Walsh,PCJ sentenced a 25-year-old offender who pleaded guilty to several charges of possession for the purposes of trafficking involving anumber of different controlled substances, including methylphenidate, diazepam, oxycodone, methadone, cocaine and cannabismarijuana. He was also convicted of simple possession of a number of other controlled substances.

The trial judge called it a “mobiledrug store.” Found in his vehicle through the search incidental to his arrest were also a set of scales, a set of brass knuckles, a hammerand $2000 in cash. The offender was employed and in a stable relationship; he and his partner have one child. He was addicted toOxyContin and Percocet. He had a criminal record, including four other drug-related offences. He was sentenced to 15 months in prisonfor the

Schedule 1 controlled substances and three months for the cannabis marijuana. m. Finally, in R. v. Bonnie, 2013 ONCJ 243, the 63-year-old first-time offender pleaded guilty to trafficking marijuana and possession ofoxycodone for the purposes of trafficking. In his possession at the time of his arrest were 54 grams of marijuana and 68 oxycodonetablets, together with a cell phone, a “debt” list, $1045 (CDN) and $539 (US).

Based upon his age, his lack of a prior record, and hisguilty plea, the offender was sentenced to two months for trafficking in marijuana and eight months concurrent for possession ofoxycodone for the purposes of trafficking together with probation for 12 months. Zisman, J. said at paragraphs 34, 35 and 37: [34] The havoc and destruction caused by oxycodone is seen all too frequently in this court by persons addicted to this drug whocommit further crimes in order to finance their dependencies. The harm done to them personally and the devastating effect on theirfamilies and this community are deeply concerning.

There is a growing concern about the ease of availability of this drug in thisjurisdiction. [35] Accordingly, denunciation is particularly important in this community with the ultimate goal being to deter like-mindedindividuals from trafficking in drugs. […] [37] […] Oxycodone is considered to be a dangerous drug rivalling heroin and more serious than cocaine, an addict-trafficker isconsidered a mitigating factor and absent exceptional circumstances generally a term of incarceration is imposed. [11] The Crown’s principal position on sentencing in this case is that people like Mr.

Ivey make drugs such as oxycodone availableto addicts who then commit other crimes to support their addictions. Crown counsel places stress on the harm that Mr. Ivey’s crimescould cause the users of the drugs sold by him and the consequential effects on their families and society at large. He also distinguishedthis “for profit” activity of Mr. Ivey from minor trafficking in controlled substances to serve an on-going addiction. He sought a sentenceof between 18 and 20 months for trafficking in oxycodone (which is found in

Schedule I of the CDSA) and concurrent sentences of sixmonths for each of the other two offences (both clonazepam and temazepam are found in

Schedule IV of the CDSA). He also soughtprobation for a period greater than six months but less than three years. [12] The ancillary orders sought by the Crown have been agreed to by counsel for Mr. Ivey and they are detailed at the end of thesereasons. position of the offender [13] Counsel for the offender relied upon Mitchell, R. v. Webber, 2013 ABCA 189, and R. v. Stapleton, (N.L.Prov. Ct.). [14] As to the decision of the Alberta Court of Appeal in Webber, counsel for Mr.

Ivey pointed out that the addicted offender, whowas in his 50s, pleaded guilty to trafficking in two 80 mg oxycodone pills and five 60 mg morphine pills as well as breach ofrecognizance. At the time of his arrest he had in his possession various controlled substances, including one 175 mg ratio-fentanyl patch.He had a related record.

At trial, he was sentenced to imprisonment for nine months because the judge held that the transactions did notamount to commercial trafficking and the offender’s moral blameworthiness did not attract the four-year sentence sought by the Crown.The Crown’s appeal was dismissed. [15] Stapleton is a decision of Porter, PCJ. The offender pleaded guilty to trafficking in oxycodone and possessing oxycodone forthe purpose of trafficking, as well as possession of other prescription drugs. The offender was medically disabled and was addicted toopioids.

The decision does not state whether or not the offender had a criminal record. A search of his home disclosed an unspecifiednumber of oxycodone pills (for which he had three prescriptions), 7 dextroamphetamine pills, three codeine pills, and one lorazepamtablet. Also found were a pill crusher, a pill cutter, a short straw, and a crib book. Upon his arrest the offender was found with a pillbottle and $560. Based upon a joint submission by counsel, he was sentenced to 18 months in prison for the drug offences. [16] Counsel for Mr.

Ivey suggests a custodial sentence in the range of eight to 12 months, together with unsupervised probation forsix to eight months. analysis [17] In sentencing Mr. Ivey, I must balance any mitigating factors that are present against the aggravating factors. I must thenimpose a sentence that recognizes his moral blameworthiness and sends a message of denunciation and deterrence to him and to otherswho may consider engaging in similar criminal behaviour (see, R. v. Al-Amiri, 2015 NLCA 37). As stated at paragraph 31 of Mitchell:

31. […In] determining an appropriate sentence, deterrence, particularly general deterrence and denunciation are important factors. The courts are well aware of the broadly-based social costs related to trafficking in prescription drugs such as oxycodone. Taking thesefactors into account, in achieving a proportionate sentence, the particulars of this offender and this offence must be assessed. [18] Trafficking in

Schedule I controlled substances, and possession for the purposes of trafficking in those drugs, carries amaximum sentence of life imprisonment (section 5(3)(

a) of the CDSA). Trafficking in

Schedule IV controlled substances, and possessionfor the purposes of trafficking in those drugs, carries a maximum sentence of three years (section 5(3)(c)(

i) of the CDSA). I accept thatgenerally the sentences for trafficking in a controlled substance and possession for the purposes of trafficking need not vary greatly(Bearns). I also agree that as the controlled substance involved moves up the scale of seriousness, so too should the sentence imposed;also, I agree that oxycodone is more akin to heroin than it is to cocaine (Roper and Bonnie). [19] By

section 742.1(

c) of the Criminal Code, because Mr. Ivey has been convicted of an indictable offense for which themaximum term of imprisonment is life, a conditional sentence served in the community is not available. [20] Barring factors that do not exist here (R. v. Nasogaluak, 2010 SCC 6 , [2010] 1 S.C.R. 206), I am guided by thesentencing range of six months to three years as set forth in Bearns and Mitchell, and therefore consider the sentences imposed by theAlberta courts in Kappeler and Whittaker to be unhelpful. [21] At the other extreme of the cases from the Alberta Court of Appeal is Webber.

There, the offender had been sentenced on aprevious occasion to five years and three months for trafficking. The trial judge found that the offender’s trafficking did not amount to abusiness because he only received a small amount of money for the drugs that he sold. As for Mr. Ivey, I have concluded that his drugselling enterprise was commercial – one could liken it as akin to a “groc and conf” scaled operation, to use the local parlance for a smallgrocery and confectionary store; it was certainly no Walmart. Nevertheless, the evidence supports a finding that Mr.

Ivey actively soughtsources for the controlled substances that he sold; that is, he was not selling from his own prescription. Nor were the sales for thepurpose of feeding any addiction of his. Overall, I am not convinced that the four months imposed upon Mr. Webber would be suitablefor Mr. Ivey’s circumstances. [22] I note as well that just this week Chaytor J. of this Court sentenced an offender to, among other things, 16 months’incarceration for each of two counts of trafficking in oxycodone following a guilty plea (see R. v. Hepditch, 2018 NLSC 55). He was alsoplaced on supervised probation for two years.

At the time of his arrest Mr. Hepditch had in his possession 42 oxycodone tablets, $670.65in cash and a small amount of marihuana. Also at the time of his arrest, Mr. Hepditch was bound by three probation orders. The age ofthe offender, the amount of drugs involved and the amount of cash found in his possession are similar to Mr. Ivey’s circumstances.Although the Mr. Hepditch’s extensive criminal record and the fact that he was bound by court orders at the time of the offences wereaggravating factors, his guilty plea was a mitigating factor. [23] The only real aggravating factor in this case is that Mr.

Ivey was in the drug trade purely for profit. Notwithstanding the low-level enterprise in which he was engaged, the selling of opioids to vulnerable and desperate people was not in furtherance of feeding hisown addiction, but was simply to supplement his income. That Mr. Ivey pleaded not guilty to the offences is not an aggravating factor.He was entitled to require the Crown to prove the charges against him beyond a reasonable doubt. [24] There are no particular mitigating factors that either counsel pointed out to me. Certainly, mitigating factors such as wereconsidered in Mitchell are not present here. Mr.

Ivey’s counsel did, however, identify the absence of aggravating factors that werepresent in some of the cases cited by Crown counsel. Furthermore, when given an opportunity to address the Court at the sentencinghearing, Mr. Ivey did express his regret at what has happened.

I remain uncertain, however, whether he was accepting responsibility forthe crimes he committed or more generally was sorry for the circumstances in which he now finds himself. [25] Overall, I am satisfied that the circumstances in this case differ from Kappeler, Stapleton and J.E.M., because in each of thosecases the offender was subject to a court order at the time of arrest. Mr. Ivey was not. Moreover, he has complied with his conditions ofrelease since his arrest on April 7, 2015. [26] Furthermore, Mr.

Ivey did not have an amount of cash upon his arrest comparable to that seized in Drake ($4000), Woodford($2000) and Bonnie ($1045 (CDN) and $539 (US)), thereby signaling that his was a smaller operation. Nor were there any implements ofviolence found upon the search of Mr.

Ivey’s apartment, such as the brass knuckles found in Drake and Woodford. [27] I am satisfied that taking into consideration the circumstances and moral blameworthiness of this offender, the smallcommercial scale of his drug operation and the fact that he had neither a related criminal record nor any incidents relating to hisconditions of release, his sentence should be towards the lower end of the range of sentences. But those considerations must be temperedagainst Mr. Ivey’s purely profit-driven motive for selling controlled substances to vulnerable and desperate people (MacLellan).

As arecovering addict himself, Mr. Ivey must be keenly aware of the personal, familial and societal devastation that an opioid addiction canwreak. [28] In conclusion, therefore, the sentence imposed upon Mr. Ivey must recognize the individual and societal havoc and destructioncaused by oxycodone abuse. The cases referred to chronicle the plight of persons addicted to this drug who commit crimes to financetheir dependencies. The harm done to them personally and the devastating effects on their families and the community are deeplyconcerning. [29] Because Mr.

Ivey has been convicted of multiple offences, I am to apply the three-step approach in R. v. Hutchings, 2012NLCA 2. The first step is to assign an appropriate sentence for each offence. The second step is to determine whether any of the offencesshould be ordered to be served concurrently on the basis that they constitute a single criminal venture. The third step requiresconsideration of the principle of totality. [30] Mr.

Ivey will be made subject to significant custodial sentences: for trafficking in oxycodone - imprisonment for 16 months;for trafficking in clonazepam - imprisonment for six months; and for possession of temazepam for the purpose of trafficking -imprisonment for six months.

[31] Normally, each of the sentences imposed would be ordered to be served consecutively. But because the offences were all partof a single “criminal adventure” or a “single enterprise,” the second and third sentences imposed would normally be served concurrentlywith the first, most severe, sentence imposed (see, Hutchings and R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R.222, 292 A.P.R. 222 (Nfld. C.A.)). Whether they are or not will depend on whether the sentences imposed and their manner of beingserved correspond with the principle of totality. [32] In R. v.

Martin, 2018 NLCA 12, at paragraph 30 (per Welsh, J.A.), the Court of Appeal very recently reaffirmed the applicationof the principle of totality as follows: [30] The principle of totality, together with the appropriate analytical approach, is discussed in R. v. Hutchings, supra. The question iswhether the total sentence for multiple offences is “unduly long or harsh, in the sense that it is disproportionate to the gravity of theoffence and the degree of responsibility of the offender” (Hutchings, at paragraph 84, point 4). Factors to be considered in the analysisinclude (Hutchings, at paragraph 84, point 5): (

a) the length of the combined sentence in relation to the normal level of sentence for the most serious of the individual offencesinvolved; (

b) the number and gravity of the offences involved; (

c) the offender’s criminal record; (

d) the impact of the combined sentence on the offender’s prospects for rehabilitation, in the sense that it may be harsh or crushing; (

e) such other factors as may be appropriate to consider to ensure that the combined sentence is proportionate to the gravity of theoffences and the offender’s degree of responsibility. [33] I have determined that the appropriate individual sentences total 28 months of imprisonment. In the circumstances of this case,a sentence of 28 months in prison would be disproportionately high if I were to consider only Mr. Ivey’s small scale trafficking ofoxycodone. It would be at the higher end of the sentencing range and would not reflect the circumstances of this case or of this offender.This is particularly so given Mr.

Ivey’s limited, dated and unrelated criminal record. Based upon the factors that I have considered, sucha sentence would not be proportionate to the gravity of the offences or to Mr. Ivey’s degree of responsibility. It would also negativelyaffect his prospects of rehabilitation. [34] Considering the foregoing, I am satisfied to order that the sentences for trafficking in clonazepam and for possession oftemazepam for the purpose of trafficking be served concurrently with the sentence imposed for trafficking in oxycodone. In addition, Mr.Ivey will be placed on probation for 18 months following his release.

The circumstances of this case do not, however, call for supervisedprobation. disposition [35] For count No. 1, trafficking in oxycodone, Mr. Ivey is sentenced to imprisonment for 16 months. [36] For count No. 3, trafficking in clonazepam, Mr. Ivey is sentenced to imprisonment for six months to be served concurrentlywith the sentence imposed in respect of count No. 1. [37] For count No. 5, possession of temazepam for the purpose of trafficking, Mr.

Ivey is sentenced to imprisonment for six monthsto be served concurrently with the sentence imposed in respect of count No. 1. [38] Pursuant to section 731(2) of the Criminal Code, Mr. Ivey shall be subject to probation for 18 months following his release,subject to the following conditions: a. Keep the peace and be of good behaviour; b. Notify the Court or probation officer in advance of any change in name or address, and promptly notify the Court or probationofficer of any changes in employment or occupation; and c. Appear before the Court when required to do so by the Court. [39] Mr.

Ivey shall also be subject to the following ancillary orders: a. Pursuant to

section 487.051, I order the taking of a number of samples of bodily substances from Mr. Ivey reasonably required forthe purpose of forensic DNA analysis based upon his conviction for secondary designated offences as set out in

section 487.04 of theCriminal Code. b. Section 109(1)(

a) of the Criminal Code requires that the Court prohibit an offender from possessing firearms and other related itemsif the person has been convicted of "an offence relating to the contravention of subsection 5(1) or (2)…of the Controlled Drugs andSubstances Act.” I therefore order that Mr. Ivey is prohibited from possessing any firearm, crossbow, restricted weapon, ammunition andexplosive substance for a period of ten years after his release from imprisonment and from possessing any prohibited firearm, restrictedfirearm, prohibited weapon, prohibited device and prohibited ammunition for life. c. Pursuant to

section 16 of the CDSA, all offence-related property seized by the police shall be forfeited to Her Majesty the Queen inRight of Canada. Crown counsel provided a copy of the draft Order to counsel for Mr. Ivey prior to presenting it to the Court. Mr. Ivey’scounsel was satisfied with the form as presented and I have signed it.

d. A victim surcharge pursuant to section 737(2) (b)(ii) of the Criminal Code in the amount of $200 per offence is ordered and is to be paid within 30 days. _____________________________ Robert P. Stack Justice