R. v. Summers, 2018 NLSC 84

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Summers , 2018 NLSC 84 Date : April 18, 2018 Docket : 201701G1176 Her Majesty The Queen v. Blair Summers Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: February 26 and April 10, 2018

Summary: The Court sentenced the offender to a total sentence of 4 years, 8 months, for three break and enters and one attempted break and enter into pharmacies involving theft or intended theft of prescription drugs. The Court applied the principle of totality to reduce what would have been an otherwise unduly long and harsh combined sentence. Appearances:

Robin C. Singleton Appearing on behalf of the Crown Stephen P. Orr Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Summers, 2017 NLCA 20; R. v. Penney, 2005 NLCA 31; R. v. Crocker (1991), (NLCA), 93 Nfld. & P.E.I.R. 222, 14 W.C.B. (2d) 502 (Nfld. C.A.); R. v. Summers, 2014 SCC 26; R. v. Gladue, (SCC),[1999] 1 S.C.R. 688; R. v. Barrett, 2012 NLCA 46; R. v. Nasogaluak, 2010 SCC 6; R. v. Hutchings, 2012 NLCA 2; R. v. Martin, 2018NLCA 12; R. v. Keegstra, [1996] A.W.L.D. 970, 32 W.C.B. (2d) 219 (Alta. C.A.); R. v. Nippi (19891), (SK CA), 14Sask. R. 86, 7 W.C.B. 155 (C.A.); R. v.

Ferguson, 2017 ONCJ 257; STATUTES CONSIDERED: Criminal Code, R.S.C. 1985, c. C-46; Narcotic Control Act, R.S.C. 1970, c. N-1 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] This is a sentencing decision for Mr. Summers who has pleaded guilty to: (

i) Two counts of break and enter into pharmacies and committing therein an indictable offence; (ii) One count of break and enter into a pharmacy with intent to commit therein an indictable offence; and (iii) One count of attempting to break and enter into a pharmacy with intent to commit an indictable offence therein. [2] The counts are contained in an Indictment filed on February 10, 2017 as follows: Count 2 THAT on or about the 10th day of February, 2015, at or near Heart’s Delight – Islington, Newfoundland and Labrador, did break andenter a certain place to wit, Welsh’s Pharmacy, and did commit therein an indictable offence contrary to section 348(1)(b) – 348(1)(

e) ofthe Criminal Code. Count 3 THAT on or about the 16th day of February, 2015, at or near Greens Harbour, Newfoundland and Labrador, did attempt to break andenter a certain place to wit, Greens Drug Mart, with intent to commit an indictable offence therein, contrary to section 348(1)(a) – 348(1)(

e) and

section 463 of the Criminal Code. Count 4 THAT on or about the 16th day of February, 2015, at or near Dildo, Newfoundland and Labrador, did break and enter a certain place towit, Greens Drug Mart, and did commit therein an indictable offence contrary to section 348(1)(b) – 348(1)(

e) of the Criminal Code. Count 7 THAT on or about the 11th day of March, 2015, at or near South River, Newfoundland and Labrador, did break and enter a certain placeto wit, Baccalieu Trail Pharmacy, with intent to commit an indictable offence therein, contrary to section 348(1)(a) – 348(1)(

e) of theCriminal Code. [3] The Crown advised it was withdrawing the remaining counts in the Indictment alleging conspiracy to commit certain of theabove offences upon convictions being entered on counts 2, 3, 4 and 7. facts and convictions

[ 4 ] In order to enter convictions on all four counts, I must be satisfied that the facts entered into evidence establish beyond a reasonable doubt that Mr. Summers committed the offences with which he is charged. The offences are set out in the following sections of the Criminal Code , R.S.C. 1985, c. C-46. Sections 348 and 463 of the Criminal Code state: 348

(1) Every one who (

a) breaks and enters a place with intent to commit an indictable offence therein, (

b) breaks and enters a place and commits an indictable offence therein, or (

c) breaks out of a place after (

i) committing an indictable offence therein, or (ii) entering the place with intent to commit an indictable offence therein, is guilty (

d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and (

e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on

summary conviction.

(2) For the purposes of proceedings under this section, evidence that an accused (

a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or (

b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after (

i) committing an indictable offence therein, or (ii) entering with intent to commit an indictable offence therein.

(3) For the purposes of this

section and

section 351, place means (

a) a dwelling-house; (

b) a building or structure or any part thereof, other than a dwelling-house; (

c) a railway vehicle, a vessel, an aircraft or a trailer; or (

d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes. 463 Except where otherwise expressly provided by law, the following provisions apply in respect of persons who attempt to commit or are accessories after the fact to the commission of offences: (

a) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which,

on conviction, an accused is liable to be sentenced to imprisonment for life is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years; (

b) every one who attempts to commit or is an accessory after the fact to the commission of an indictable offence for which, on conviction, an accused is liable to imprisonment for fourteen years or less is guilty of an indictable offence and liable to imprisonment for a term that is one-half of the longest term to which a person who is guilty of that offence is liable; (

c) every one who attempts to commit or is an accessory after the fact to the commission of an offence punishable on

summary conviction is guilty of an offence punishable on

summary conviction; and (

d) every one who attempts to commit or is an accessory after the fact to the commission of an offence for which the offender may be prosecuted by indictment or for which he is punishable on

summary conviction (

i) is guilty of an indictable offence and liable to imprisonment for a term not exceeding a term that is one-half of the longest term to which a person who is guilty of that offence is liable, or (ii) is guilty of an offence punishable on

summary conviction. [ 5 ] The Crown and Mr. Summers filed a lengthy agreed statement of facts with the Court incorporating a binder of appendices.

The appendices include, among other documents, intercepted communications, including texts and phone conversations, obtained by way of judicial authorization as well as documentation itemizing prescription drugs taken from pharmacies together with their value. [ 6 ] To briefly summarize the agreed statement of facts, in April 2015 the Royal Canadian Mounted Police (RCMP) initiated an effort to solve multiple pharmacy break and enters in an investigation known as Project Blacken.

In the course of that project, the RCMP obtained evidence from an independent investigation, Operation Turbulence, that had been and was continuing to be conducted by the RCMP-RNC Combined Forces Special Enforcement Unit (CFSEU). That operation involved a covert investigation of drug trafficking by multiple persons between Quebec, Ontario and Newfoundland and Labrador. [ 7 ] In the course of Operation Turbulence, the CFSEU obtained an authorization to intercept a cell phone number registered to a third party. Intercepted communications obtained from that authorization included discussions between Mr.

Summers and that third party relating to the planning and execution of multiple pharmacy break and enters in this Province between February 9 and March 11, 2015. Police officers were able to positively identify Mr. Summers’ voice on the intercepted communications. [ 8 ] With respect to count 2, the agreed statement of facts establishes that in the early morning of February 10, 2015, there was a break and enter into Welsh’s Pharmacy in Heart’s Delight, Newfoundland and Labrador, resulting in the removal of two safes that were bolted to the floor.

The safes contained between 9,500 and 9,800 narcotic pills with a value of approximately $4,000.00. The main door of the pharmacy had been forced open and a number of tools associated with a break and enter were located inside. Two days later, both of the stolen safes were located in a ditch near Mr. Summers’ home. [ 9 ] The intercepted communications contained phone conversations between Mr. Summers and a third party discussing Welsh’s Pharmacy in Heart’s Delight, including how remote it is, the fact that it does not have an alarm and “how easy it is”. Mr.

Summers and the third party had discussions about going there the night of February 9, 2015. Intercepted communications on February 13, 2015 also refer to Mr. Summers having “done the one the other night”, indicating he had gotten a number of pills and had used tools and trolleys. [ 10 ] The intercepted communications also contain discussions between Mr. Summers and the third party indicating Mr. Summers was picking up a hockey bag at Walmart while a hockey bag was located at Welsh’s Pharmacy after the break-in. Mr.

Summers’ presence at Walmart with an unknown male who left the store with a hockey bag was confirmed by video surveillance at Walmart. [ 11 ] Count 4 relates to a February 16, 2015 break and enter into Green’s Drug Mart in Dildo, Newfoundland and Labrador. The agreed statement of facts establishes that at approximately 7 a.m. on February 16, 2015, the pharmacy’s cleaner opened the premises and noticed a large hole in the rear of the building. Break and enter tools, including a mallet and pry bar, were located inside the pharmacy and the narcotics cupboard was broken and emptied.

The pharmacist provided police with a list of narcotics that had been stolen with the value of the medication being approximately $6,000.00. [ 12 ] Again, intercepted communications between Mr. Summers and a third party include discussions in which Mr. Summers references him executing the break and enter into Green’s Drug Mart, Dildo, Newfoundland and Labrador. These same communications also contain discussions of an attempted break and enter into Green’s Drug Mart, Green’s Harbour, Newfoundland and Labrador in the early morning of February 16, 2015.

That attempted break and enter is the subject of count 3. [ 13 ] With respect to that attempted break and enter, later in the day on February 16, 2015, an employee discovered that the building’s siding at Green’s Drug Mart at Green’s Harbour had been pulled back at the corner of the store, with damage to the plywood. Nothing was noted missing from the store and it did not appear access had been gained by the perpetrators. [ 14 ] In the intercepted communications, Mr.

Summers tells the third party about he and others having gone to the “first one” but that “somebody came, so we took off and done the other one”. [ 15 ] Mr. Summers, in the communications, describes he and others as having gone through the back of the wall at the pharmacy in Dildo, ripping the clapboard and plywood and going on. Mr. Summers describes them as having “got it” by going through the back wall and making a “tiny beaver hole” in the corner of the building. Mr. Summers also refers to having used a pry bar and a hammer.

[ 16 ] He also refers to having more than one vehicle there with his girlfriend being on lookout. This corresponds with eyewitness testimony of vehicles that were seen at the Green’s Drug Mart pharmacy in Green’s Harbour in the early morning of February 16, 2015. [ 17 ] The last break and enter, which is the subject of count 7, occurred in the early morning of March 11, 2015 at Baccalieu Trail Pharmacy in South River, Newfoundland and Labrador. Entry was gained by removing the aluminum siding, plywood and drywall from a wall of the store into the main office area.

Two pry bars and an axe were located next to the opening but there was nothing missing from the store. This time, the Pharmacy’s alarm was set off, alerting police. Video surveillance from the scene identified three perpetrators and a vehicle near the scene immediately prior to and after the break and enter occurred. Later that day, the Royal Newfoundland Constabulary (RNC) patrolled to Mr. Summers’ residence and observed a vehicle matching the description of one vehicle that had been seen near the break and enter. [ 18 ] Again, intercepted communications between Mr.

Summers and a third party discuss planning of a break and enter into a pharmacy in “Bay Roberts man its Baccalieu Trail” by taking the plastic siding off the building. [ 19 ] Police also obtained a warrant to search Mr. Summers’ residence. Upon executing the warrant, the police located a map of Newfoundland and Labrador inside the residence that highlighted multiple communities with a legend showing various pharmacies located in each community. [ 20 ] Having considered the entirety of the agreed statement of facts including appendices, I am satisfied that the Crown has proven beyond a reasonable doubt that Mr.

Summers is guilty of counts 2, 3, 4 and 7 with which he is charged. Convictions are entered accordingly. sentencing [ 21 ] The question for determination then is what is an appropriate sentence for this offender for these offences? [ 22 ] In considering what is an appropriate sentence, I must take into account the statutory sentencing principles set out in the Criminal Code . The

preamble to

section 718 states that the fundamental purpose of sentencing is the protection of society and the contribution of sentencing, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society. A number of objectives are stated in an attempt to achieve this purpose. These include:

a) Denunciation of unlawful conduct and the harm done to victims or to the community at large that is caused by unlawful conduct;

b) general and specific deterrence;

c) the separation of offenders from society, where necessary;

d) rehabilitation of offenders;

e) reparation for harm done to victims or to the community; and

f) the promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 23 ] Another fundamental principle of sentencing is set forth in

section 718.1, providing that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 sets out a number of other factors I must take into consideration in determining whether to increase or reduce the sentence having regard to aggravating or mitigating circumstances relating to both the offence and the offender. This

section also articulates the parity principle that a like sentence ought to be imposed on similar offenders for similar offences in similar circumstances. [ 24 ] In the case of sentencing for multiple offences, I must also consider whether the sentences to be imposed should be served concurrently or consecutively, having consideration to whether or not any of the offences relate to a single criminal adventure.

Finally, I must also consider and apply the principle of totality to ensure the combined sentence for any remaining consecutive sentences is not unduly long or harsh. position of the crown [ 25 ] The Crown acknowledges that there is at least one mitigating factor for me to consider, i.e. Mr. Summers entered a plea of guilty. This spared a great deal of time and expense as there would have been approximately 50 witnesses called to give evidence.

However, the Crown notes that the guilty plea was not entered at the earliest opportunity and was given in the face of a strong Crown case, thereby diminishing the mitigating value of the plea. [ 26 ] On the other hand, the Crown asserts that there are numerous aggravating factors in respect of this particular offender and offence. The Crown’s position on these aggravating factors is set out below. Criminal Record [ 27 ] Mr. Summers has a criminal record consisting of 35 previous convictions from the Provincial Court of Newfoundland and Labrador between 2005 and 2015.

These convictions include 14 convictions for fraud under $5,000.00, five convictions for possession of stolen credit cards, four convictions for possession of property obtained by crime and nine convictions for breach of either a probation order, undertaking or recognizance. It also includes convictions for carrying a concealed weapon, disguised with intent, resisting or obstructing a police officer, as well as a prior conviction for robbery and armed robbery for which Mr.

Summers was sentenced to 30 months incarceration. [ 28 ] At paragraph 10 of the decision of the Newfoundland and Labrador Court of Appeal in R. v. Summers , 2017 NLCA 20 , a previous sentence appeal involving this same offender, Welsh, J.A. notes that the trial Judge described Mr. Summers’ Provincial Court

record as being extensive and an aggravating factor in sentencing. In addition to this Provincial Court record, Mr. Summers has a May2016 conviction from this Court for break and enter into a pharmacy for which the Newfoundland and Labrador Court of Appeal upheldthe three-year term of imprisonment that was imposed. Seriousness of Offences [29] The Crown refers to the Newfoundland and Labrador Court of Appeal decision in R. v. Penney, 2005 NLCA 31, in whichRowe, J.A., as he then was, emphasized the cost to society resulting from the use of and trade in illegal hard drugs.

He furtherrecognized the special protection pharmacy stores must take in protecting large quantities of narcotics. These factors result in courtstreating break and enter into a pharmacy involving theft of narcotics as significantly more serious than breaking into another type ofcommercial building to steal items. [30] The Crown also notes that the intercepted communications entered as part of the agreed statement of facts reveal that the stolenpharmaceuticals were intended to hit the streets with potentially multiple victims of this crime. In particular, the interceptedcommunications include comments from Mr.

Summers that the pharmaceuticals stolen from Welsh’s Pharmacy were “just one month’spills, fifteen grand in him right” and the pharmaceuticals stolen from the pharmacy at Dildo were worth approximately “twenty-five,thirty grand”. Mr. Summers also said that he “gotta try to get rid of it”. This is not a case where pharmaceuticals were stolen by anoffender to fuel his or her own drug addiction. They were meant to be sold at a profit. [31] The destructive impact of the sale and distribution of pharmaceutical drugs in the community was also dealt with at paragraph11 of Summers.

The Court of Appeal noted the fact that narcotics are hard drugs, warranting a higher sentence. The Court of Appealconsidered its decision in Penney in which the accused received a sentence of 24 months. However, Welsh, J.A. noted that Mr. Penneyhad not stolen narcotics. Mr. Penney had also cooperated with the police in the recovery of the drugs stolen and had a far less extensivecriminal record. As evidenced from the agreed statement of facts, the drugs stolen here were narcotics. Further, Mr. Summers has againnot cooperated with the police.

Moral Culpability [32] The Crown also says that the facts underlying these offences evidence a high degree of moral culpability, another significantaggravating factor. The Crown notes that in the Summers’ decision, Welsh, J.A., took note of the fact that Mr. Summers’ offencesinvolved “a great deal of planning” involving three individuals, which made his offence more serious than in the Penney decision wherethe offender had acted alone. [33] The Crown says that, in this instance, the intercepted communications and maps found at Mr.

Summers’ residence show aneven higher level of planning and sophistication to these crimes, with Mr. Summers’ primary objective being to make a profit. This isnot a situation where an offender’s crimes were fueled by a drug addiction. Mr. Summers scoped out vulnerable pharmacies and was thering leader in the commission of the offences. The intercepted communications also establish that Mr. Summers encouraged others,including his girlfriend, to become involved for a profit. [34] The degree of planning and preparation is further evidenced by Mr.

Summers purchasing items such as hand dollies, spike beltsand tools, allowing him to refine his approach to the break and enters by cutting holes into the back of pharmacies. Once he wassuccessful in this method, he planned to carry out more offences, all with the intention of evading detection. I agree with the Crown thatthe intercepted communications indicate that Mr. Summers had no intention to stop these break and enters. Further, the interceptedcommunications reveal a cavalier attitude by Mr. Summers towards these crimes with him joking about the offences. [35] The Crown also notes that Mr.

Summers carried out these offences after having already been released pending trial on othercharges of break and enter. Sentences for Similar Offences [36] The Crown takes the position that the previous Court of Appeal decision in Summers is directly on point in terms of thecomments about the seriousness of the offence and the effect of the offender’s prior criminal record. However, the Crown says the threeyears set out in that decision is only a starting point as the Court now has evidence of a higher degree of planning of these offences andevidence that Mr. Summers was the ring leader.

The Crown says that since deterrence is a significant factor in sentencing in thesecircumstances, a sentence of more than three years could be warranted. Concurrent v. Consecutive Sentences [37] Taking into account sentencing principles relating to the imposition of concurrent versus consecutive sentences, the Crown saysthat the sentences for count 3 and 4 should be served concurrently. [38] In the 1991 decision of R. v.

Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 14 W.C.B. (2d) 502 (Nfld.C.A.), at paragraphs 38 to 43, Goodridge, C.J.N. held that the Court should start from the view that all sentences should be consecutiveunless there is a valid reason for making them concurrent. The two situations where sentences may be made concurrent are 1) wherethere are multiple convictions arising out a single criminal adventure; and 2) in order to achieve a proper totality.

Single Criminal Adventure [39] A single criminal adventure can also be referred to as a single enterprise, such as where two or more crimes are connected orrelated. Much depends on the circumstances surrounding the offences.

[40] As Mr. Summers broke and entered into Green’s Drug Mart in Dildo immediately after attempting to break and enter intoGreen’s Drug Mart in Green’s Harbour, I agree that these two counts arose out of a single criminal adventure. The other break andenters were planned separately and individually. They were also committed on separate dates.

However, having sentences on counts 3and 4 concurrent would still only bring the total sentence down to nine years if there were a three-year sentence on count 4, with count 4running concurrently to count 3, and consecutive to three-year consecutive sentences on counts 2 and 7. Totality [41] However, the Crown further acknowledges that even a nine-year sentence of imprisonment is a significant period for thisoffender and these offences. This sentence should be adjusted for totality. The Crown suggests a total downward adjustment to 5.5 yearsto account for the totality principle.

It is on the issue of how the totality principle is applied that the Crown and counsel for the offenderdisagree. This will be discussed in more detail below when I consider the position of the offender. Pre-Sentence Credit [42] The Crown also acknowledges that Mr. Summers finished serving his term of imprisonment on the offence for which he wassentenced in 2016 on June 20, 2017. The Crown does not take issue with Mr. Summers’ request that he be given credit for pre-sentencecustody from that date at the rate of 1.5:1. Both counsel agreed that Mr.

Summers served 251 days in pre-sentence custody to February26, 2018 for which he should receive credit.

This would mean he has now spent 302 days in custody for which he will receive credit tothe date of this sentencing decision, resulting in an overall credit of 453 days. [43] Section 719(3.1) of the Criminal Code provides that, if the circumstances justify it, a sentencing Judge may credit a personconvicted of an offence with a maximum of one and one-half days for each day spent in pre-sentence custody unless the reason fordetaining the person in custody was stated in the record under subsection 515(9.1) (i.e. if the accused was detained in custody primarilybecause of previous convictions), or the person was detained in custody under subsection 524(4) or (8) (where the accused was detainedin custody because he breached or was about to breach conditions of judicial interim release or committed an indictable offence while onjudicial interim release). [44] In respect of the time he spent in pre-sentence custody after being released from prison for his three-year sentence on June 20,2017, Mr.

Summers made application to this Court for judicial interim release. A review of the decision of the Supreme Court Justicedenying him judicial interim release indicates the Justice did not state in the record in accordance with subsection 515(9.1) that Mr.Summers’ prior criminal record was the reason for his continued detention and sections 524(4) and (8) are not applicable. It is thereforewithin my discretion to credit Mr. Summers with a maximum of one and one-half days he has spent in pre-sentence custody in respect ofthese charges. [45] In the Supreme Court of Canada case of R. v.

Summers, 2014 SCC 26, the court discussed the factors to be considered by thesentencing judge in determining the amount of credit to be granted for pre-sentence custody. Two of the primary considerations are lossof eligibility for parole and early release and the harshness of the conditions of pre-sentence custody. At paragraph 79 of that decision,the court noted that the onus is on the offender to demonstrate that he should be awarded an enhanced credit as a result of his pre-sentence detention.

However, the court recognized that the fact that pre-sentence detention has occurred will usually be sufficient togive rise to an inference that the offender has lost eligibility for parole or release. This, in turn, would justify enhanced credit. Further, atparagraph 80, the Supreme Court of Canada noted that the nature of the conditions and overcrowding in remand centres has, for years,been noted by judges as a reason to grant enhanced credit. [46] In this case, the Crown has not responded by challenging a request for enhanced credit.

I have no reason to believe that Mr.Summers would not be entitled to early release and parole, especially in light of the report provided from the psychologist at HerMajesty’s Penitentiary referred to in more detail below. As well, that report notes that Mr. Summers’ incarceration has been in a verydifficult, stressful environment without specific programming to benefit him as their programs are offered to benefit those suffering frommental health issues or addictions. Considering these factors, I am therefore prepared to grant enhanced credit at the rate of 1.5:1.

DNA Order [47] The Crown is also requesting a DNA order pursuant to

section 487.051(3) based upon Mr. Summers’ conviction for secondarydesignated offences as set out in

section 487.04 of the Criminal Code. Mr. Summers takes no issue with respect to the Crown’s request. [48] In light of Mr. Summers’ extensive criminal record and the fact that the offences involved planned and deliberate break andenters using tools purchased in advance, I am prepared to make this DNA order. I further find that such an order would not have asignificant adverse impact on Mr. Summers’ privacy or security of his person. Position of the Offender [49] Counsel for Mr. Summers refers to the general sentencing principle set out in R. v.

Gladue, (SCC), [1999] 1S.C.R. 688, referred to at paragraph 36 of R. v. Barrett, 2012 NLCA 46, for the principle that sentencing is an inherently individualizedprocess. This was also confirmed by the Supreme Court of Canada in R. v. Nasogaluak, 2010 SCC 6, in which the court said thatsections 718 to 718.2 of the Criminal Code are sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft asentence that is tailored to the nature of the offence and the circumstances of the offender. Counsel for Ms.

Summers says the Courtshould be looking at imposing the least intrusive sentence that is needed to achieve the overall purpose of sentencing. [50] Counsel for Mr. Summers does not take any issue with respect to the Crown’s position that I should look to the three years setout by the Newfoundland and Labrador Court of Appeal in Summers as an appropriate sentence for this type of offence but does notnecessarily agree that a higher sentence may be warranted. Counsel for Mr.

Summers also agrees that sentencing principles indicate thatthe sentences for counts 3 and 4 should be served concurrently to each other. [51] However, counsel for Mr. Summers says that a reduction to the 5.5 years recommended by the Crown is still excessive.

Instead, he suggests that I should sentence Mr. Summers to time served. The points he raised come down to an analysis of factors a court should take into account in conducting a totality analysis. Totality [ 52 ]

Section 718.2 (

c) of the Criminal Code is a codification of the totality principle that has previously been developed in jurisprudence.

Section 718.2 (

c) reads as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; [ 53 ] The leading Newfoundland and Labrador Court of Appeal decision dealing with the application of the totality principle is R. v. Hutchings , 2012 NLCA 2 , in which Green, C.J., as he then was, described how

section 718.2 (

c) is to be applied. At paragraph 67, Green, C.J. explained when the principle is engaged as follows: 67 Of note, initially, is that s. 718.2 (

c) requires consideration of whether a combined sentence is unduly long or harsh "where consecutive sentences are imposed". On its plain reading, this means that considerations of totality are engaged in all cases involving the potential imposition of consecutive sentences… [ 54 ] At paragraph 84, Green, C.J. identifies the following three steps a court must follow in conducting a totality analysis: 1. To identify a proper sentence for each offence; 2. To consider whether these individual sentences should be made consecutive or concurrent under normal sentencing principles; and then, 3.

If two or more sentences remain to be served consecutively, to take one last look at the combined sentence to determine whether it is “unduly long or harsh”. [ 55 ] In this case, both counsel for the Crown and counsel for the Accused agree that sentences for counts 3 and 4 should be served concurrently under normal sentencing principles but this still leaves the combined consecutive sentences being a total of at least nine years. [ 56 ] At paragraph 11 of Barrett , referred to by counsel for the accused, Hoegg, J.A. notes that, in considering whether a sentence is “unduly long or harsh, the court must take into account whether the combined sentence is disproportionate to the gravity of the offences for which the offender is being sentenced and the offender’s degree of responsibility for them, taking into account and balancing the relevant factors listed in clause 5” of paragraph 84 of Hutchings .

These relevant factors are as follows:

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

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 the offences and the offender's degree of responsibility. [ 57 ] These five factors were also recently reaffirmed in the 2018 decision of Welsh, J.A. in R. v. Martin , 2018 NLCA 12 , at paragraph 30 .

Normal Level of Sentence for the Most Serious Offence [ 58 ] In considering the first of these five factors, I agree with the Crown that the Newfoundland and Labrador Court of Appeal decision in Summers sets out the starting point that three years is the normal level of sentence for break and enter into a pharmacy involving theft of narcotics. Those are the most serious offences. However, if sentences of three years were imposed in respect of the three break and enters, nine years is still an unduly long and harsh sentence. Number and Gravity of Offences

[ 59 ] In respect of the second factor, i.e., the number and gravity of the offences involved, there are two break and enters involving the theft of narcotics, one break and enter with intent to commit an indictable offence and one attempted break and enter with intent to commit an indictable offence. The gravity of the offences is noted earlier in this decision. Offender’s Criminal Record [ 60 ] With respect to the third factor, Mr. Summer’s extensive criminal record is also noted earlier in this decision. Impact of the Combined Sentence on the Offender’s Prospects for Rehabilitation [ 61 ] Counsel for Mr.

Summers states that his service of a three-year sentence imposed after these offences were committed has already served the purpose of deterrence and a further custodial sentence will not serve the purpose of rehabilitation. He provided the Court with a letter from a psychologist at Her Majesty’s Penitentiary advising that Mr. Summers self-referred for services and attended scheduled appointments. He stated that Mr. Summers presents as an emotionally stable individual and that the prison environment does not provide programming for him as their programs are designed to target mental health and addictions issues.

The psychologist also says that Mr. Summers has completed thirty-two months of incarceration to February 2018 in a very difficult, stressful environment without incident, “a testament to his determination and self-discipline”. The effect of this report will be considered later in this decision. Other Appropriate Factors [ 62 ] With respect to the last factor set out in Hutchings , i.e. other appropriate factors, Mr.

Summers asserts that some history of his involvement with the Courts over the past several years and the fact that he has been incarcerated since June 2015 are appropriate factors to consider in determining an overall sentence. In order to properly consider this submission, it is necessary to go into some history of Mr. Summers’ other Court matters. [ 63 ] As noted above, much of the intercepted communications forming part of the agreed statement of facts were obtained in the course of Project Blacken from the independent investigation, Operation Turbulence.

Project Blacken was initiated in April 2015 and used the prior obtained evidence from Operation Turbulence to help police solve pharmacy break-ins, including the break and enters that occurred in February and March 2015 that are the subject of the within charges. However, in order not to compromise Operation Turbulence, Mr. Summers was not charged in relation these offences until December 22, 2015. [ 64 ] In the meantime, Mr. Summers had been previously charged with a break and enter into a pharmacy located at Chapel Arm, Newfoundland and Labrador committed on January 4, 2014.

He was acquitted of that charge following trial on June 14, 2017. [ 65 ] Mr. Summers was also charged in June 2014 with another break and enter into a pharmacy with the offence having occurred on February 6, 2011. The laying of those charges was delayed because of the delay in obtaining DNA evidence. [ 66 ] While Mr. Summers was on release awaiting trial for both charges laid in 2014, he was charged with yet more offences on June 23, 2015, including a charge of break and enter into a pharmacy.

He was denied judicial interim release on these June 2015 charges by a Provincial Court Judge primarily because of the two similar outstanding matters before the courts and his criminal record, including several breaches of Court orders. Mr. Summers filed an application for review of the decision denying him judicial interim release. This application was initially scheduled to be heard in this Court on November 17, 2015 and was set over to December 18, 2015. [ 67 ] As a result, when charges were laid for these February and March 2015 offences on December 15, 2015, Mr.

Summers was in custody pending trial on charges laid in June 2015 with his continued detention scheduled to be reviewed in three days. As he was already in custody, he waived a

section 515 bail hearing in Provincial Court. [ 68 ] Counsel for Mr. Summers says he requested a postponement of the review of Mr. Summers’ judicial interim release as he felt it was obvious his client would not be released as a result of those new charges being laid. The Justice assigned to the matter postponed the matter sine die , noting the review could be brought back before the Court at the request of Mr. Summers. [ 69 ] Mr. Summers remained in pre-trial custody until he was sentenced to a three-year prison term in May 2016 in relation to the 2011 break and enter for which he was charged in June 2014.

He was given credit of 489 days for pre-sentence custody representing the time he had spent in custody since June 2015. [ 70 ] Mr. Summers was then acquitted of the majority of the June 2015 charges following a decision from the Provincial Court to exclude evidence on January 19, 2017. The Crown has appealed that acquittal and the appeal is still before the Court of Appeal. The only remaining charge from June of 2015 at that time was a charge of obstruction of justice. [ 71 ] Mr. Summers completed the remainder of his three-year sentence on June 20, 2017.

He then filed an application for review of the Provincial Court Judge’s decision to detain him in custody on the June 2015 charges (the obstruction of justice charge still remaining outstanding). His application also sought an initial bail hearing on the charges contained in the Indictment now before me. This Court had jurisdiction to conduct an initial hearing for judicial interim release as Mr. Summers had already been committed to stand trial on those charges in this Court. [ 72 ] On August 3, 2017, another Justice of this Court upheld the decision of the Provincial Court Judge detaining Mr.

Summers on the June 2015 charge and also ordered his pre-trial detention on the charges now before me on the basis that detention was justified under sections 515(10) (

b) and (

c) of the Criminal Code . Mr. Summers has therefore remained in pre-sentence custody since June 20, 2017. Since the August 3, 2017 bail decision, the obstruction of justice charge was either withdrawn or dismissed. As such, any time in custody since June 20, 2017 would serve as pre-sentence credit on the offences now before the Court. [ 73 ] The relevance of reciting this pre-sentence history is to consider Mr. Summers’ submission that his pre-sentence incarceration

since June 2015 should be taken into account when carrying out a totality analysis. [74] Firstly, Mr. Summers says that the delay in laying the charges now before me has prejudiced him in that he was sentenced onthe charges laid in June 2014 for the 2011 break and enter, but lost the benefit of having the totality principle apply to sentencing on thecharges now before me at the same time as the charges laid in June 2014. He suggests he could have asked that sentencing take place onall charges at the same time and therefore would have received a lower overall sentence than having two separate sentencing hearings.

He says the delay in laying charges until December 2015, coupled with the magnitude of the disclosure, created a “log jam”. He says hewas facing a trial date that was going to have to be set on the June 2014 charges, given the amount of time the charges were outstanding,but he was not yet in a position to enter a guilty plea on these charges because he awaited disclosure. This did not allow him to deal withall charges for which he was pleading guilty at the same time.

He says that this should be taken into account in applying the totalityprinciple. [75] In the Newfoundland and Labrador Court of Appeal decision in Barrett, Hoegg, J.A. considered the propriety of a sentencingjudge considering a past sentence for other offences being served by the offender as part of the judge’s totality analysis in sentencing theoffender for other multiple offences. [76] Hoegg, J.A., did a thorough review of the case law from Newfoundland and Labrador and elsewhere in Canada in holding thata totality analysis pursuant to

section 718.2(3) does not expressly address consideration of offences which are not before the sentencingcourt.

At paragraph 24, Hoegg, J.A. stated that, in ordinary circumstances, a judge who is imposing a sentence for multiple offencesconducts his or her totality analysis on considerations relating to sentencing for the multiple offences which are before him or her anddoes not usually consider a sentence previously imposed by another judge. [77] However, she did note that consideration of an offender’s past convictions and sentences may be relevant to sentencing for thecurrent offences since circumstances of an offender are always relevant to sentencing, notably with respect to the principle ofrehabilitation.

As well, the fact that an offender is incarcerated and the length of that incarceration is a factor which could be consideredby a sentencing Judge. However, the mere fact that an offender is already serving a period of incarceration does not independentlysupport a totality adjustment after a Judge has already done one downward adjustment, nor is an automatic downward adjustmentnecessarily warranted. Hoegg, J.A., held that the sentencing Judge must do a general totality analysis.

She states as follows with respectto the effect of an offender’s incarceration for previous offences, at paragraph 37: The trial judge must assess whether an offender's incarceration for previous offences is a factor which, with all of the other factorsbearing on a totality analysis, warrants a downward adjustment in sentence, and if so, explain why. [78] Counsel for Mr. Summers also refers to the Alberta Court of Appeal decision in R. v. Keegstra, [1996] A.W.L.D. 970, 32W.C.B. (2d) 219 (Alta. C.A.) as support for his position I should consider the Crown’s delay in laying charges.

In that case, the courtheld that a long history between the commencement and end of the criminal prosecution and the long record of unusual litigation steps,even if not the fault of the Crown, could be viewed as a mitigating factor for sentence because of the added expense for the accused andthe extended anxiety for him and his family. However, in that case, the court also held that pre-charge delay is not a significant factor ina disposition where the paramount sentencing factors are general deterrence and denunciation.

In that case, the Alberta Court of Appealdid ultimately view the delay in prosecution as quite remarkable and unique, justifying a reduction. It took twelve years before thematter came before the courts with nine major events occurring in the meantime, none of which could be the fault of the accused. [79] In addition, counsel for Mr. Summers refers to the Saskatchewan Court of Appeal case of R. v. Nippi (1981), (SK CA), 14 Sask. R. 86, 7 W.C.B. 155 (C.A.), in which the Court allowed an appeal of a sentencing decision.

The sentencing judge hadordered that a sentence be served consecutively to a prior sentence in a circumstance when there had been a delay in sentencing theoffender for a second charge arising out of the same incident giving rise to the prior sentence. In particular, the offender had alreadyserved a sentence for a concealed weapons conviction before he was charged with break and enter in relation to the same incident.

TheSaskatchewan Court of Appeal held that the Crown’s delay in proceeding on the second charge until after the offender had completed hissentence on the concealed weapon conviction caused some concern. The Crown was unable to furnish any explanation for the delay. As a result, this dictated a reduction in the sentence with the later sentence to be served concurrently with the prior sentence, reducing thetotal sentence to ten months in prison. [80] However, the above cases are distinguishable on the facts before me.

In Keegstra, the Court was primarily concerned with thetwelve years that had passed since the laying of charges. Further, the delay between the time of the offence and the laying of the chargewas several years. Such is not the case with Mr. Summers. These offences occurred in February and March of 2015 with ProjectBlacken only having been undertaken in April, 2015. These charges were laid in December, 2015.

That is not a significant delay and Ido not lay blame on the police or the Crown for this length of delay in laying charges when another significant investigation could havebeen compromised. [81] With respect to any prejudice to Mr. Summers, Mr. Summers was not facing a trial date on the charges laid in June, 2014 whenhe was charged with the offences now before me. He chose to change his plea to guilty on the June, 2014 charges and have a sentencinghearing several months after these charges were laid.

While I recognize disclosure was still outstanding on these charges at the time ofhis guilty plea, he has not demonstrated that he was under compulsion to deal with the June 2014 charges. The record from this Courtindicates it was Mr. Summers who sought a speedy disposition. [82] In any event, I also note that the charges laid in June, 2014 related to an offence committed in February, 2011, four years beforethe offences for which he is now being sentenced. There was a delay in laying those charges as a result of DNA evidence with Mr.Summers acknowledging that the Crown is not at fault for that delay.

This is not a situation where it would have been expected that the2011 offence charges would have been placed on the same Indictment or tried at the same time as those now before me. The situationbefore me is dissimilar to Nippi in which the Crown, without explanation, delayed laying a second charge against an accused arising outof the same incident. In such circumstances, the two charges should have had concurrent sentences without consideration of theprinciple of totality.

[ 83 ] With respect to Barrett , I note that the offender in that case had not yet finished serving a prior sentence at the time of sentencing. The offender was being sentenced for offences that occurred two years prior to offences for which the accused was sentenced to a five-year period of incarceration only three months earlier. In this case, Mr.

Summers finished serving his three-year custodial sentence on June 20, 2017 for an offence committed in 2011, four years prior to these offences. [ 84 ] Overall, I agree that an offender’s incarceration on previous offences for which he did not receive specific programming is a factor to be considered with all factors bearing on a totality analysis. It is one of many factors that may be relevant when considering the overall objectives of sentencing: in particular, the objectives of specific deterrence and rehabilitation. However, while it is a factor, the significance of Mr.

Summers’ service of a prior three year sentence is diminished when I consider the distinguishing features noted above. I have also considered that Mr. Summers asks that his service of a prior three-year sentence for the June 2014 charges be considered on this totality analysis but Mr. Summers committed these offences that are now before me while he was released pending trial on those charges. As well, Mr. Summers has a lengthy criminal record, having been incarcerated for lengthy periods on other charges. Following his release, he continued to commit offences.

Finally, I have not been directed to any evidence that Mr. Summers has been rehabilitated during his years of incarceration, including his three year sentence for break and enter, as this is not addressed in the report from the psychologist. The above considerations are relevant to the objectives of specific and general deterrence as well as rehabilitation. [ 85 ] Finally, counsel for the accused referred the Court to the Ontario Court of Justice decision in R. v. Ferguson , 2017 ONCJ 257 , in which McLeod, J., factored into account the harsh treatment received by the offender.

The court considered the impact of his pre-trial incarceration on the offender’s mental well-being and the lack of diligence of prison authorities with respect to the offender’s religious observance. In addition to applying the enhanced credit of 1.5:1, the court deducted 29 months from the overall sentence to account for the harsh treatment and the significant personal toll it had on the offender. [ 86 ] Counsel for Mr.

Summers says this case indicates I may take into account that a lengthy, prior period of time spent by an offender at an institution with no programming is a mitigating factor when applying the principle of totality. However, in Ferguson , the harsh treatment of the offender consisted of a disregard of the offender’s religion and numerous lock-down days and double-bunking. There was also evidence of significant impairment of the offender’s mental well-being as a result of his treatment. While Mr.

Summers provided the Court with a letter from a psychologist indicating no programming has been available to him as there is only mental health and addictions counseling available, this is certainly not akin to the evidence of harsh treatment in Ferguson . As well, the psychologist wrote of the stressful environment in which Mr. Summers has lived while incarcerated. I have no doubt that prison can be described as such an environment but this is a circumstance common to all offenders who have been incarcerated prior to sentencing.

The factors noted above justify the enhanced pre-sentence credit that has been afforded in the past and will be afforded now but they are not sufficient to justify as significant a downward reduction in sentence as suggested by counsel for Mr.

Summers. [ 87 ] Having considered all of the above factors relevant to sentencing, including those relating to a totality analysis, I find that the objectives of denunciation, specific and general deterrence and rehabilitation continue to require a lengthy period of incarceration for these serious offences involving break and enter into a pharmacy involving theft of narcotics and attempted break and enter. These offences involved a high degree of planning and sophistication and were carried out with profit as the motive.

Further, the offender committed these offences while released and awaiting trial on similar charges. He also has an extensive criminal record. While I have taken into account Mr. Summers’ prior period of incarceration and agree that this is a factor to be considered in respect of his individual circumstances, I am not satisfied that this requires as significant a downward adjustment as suggested by his counsel when applying the totality principle.

The position put forward by counsel for the offender treats all time served in prison since June 2015 as if it were part of the custodial sentence I am now imposing and assumes Mr. Summers would obtain the earliest possible date of release. That is not the appropriate way to conduct a totality analysis in a situation where Mr. Summers has or will be given appropriate credit and consideration for all time served to date. However, a downward adjustment is certainly required as the combined sentence is unduly long and harsh.

I must now determine what an appropriate combined sentence is for this offender and these offences. [ 88 ] At paragraph 84 of Hutchings , Green, C.J., as he then was, restated the guidelines for the analytical approach to adjusting a sentence for totality. Guideline 8 states: 8. In imposing individual sentences adjusted for totality, the judge should be careful to identify: (

a) the sentences that are regarded as appropriate for each individual offence applying proper sentencing principles, without considerations of totality; (

b) the degree to which sentences have been made concurrent on the basis that they constitute a single criminal adventure; and (

c) the methodology employed to achieve the proper totality that is indicated, identifying which individual sentences are, for this purpose, to be made concurrent or to be otherwise reduced. [ 89 ] Further, guideline 7 states that: Where the sentencing court determines that it is appropriate to reduce the combined sentence to achieve a proper totality, it should first attempt to adjust one or more of the sentences by making it or them concurrent with other sentences, but if that does not achieve the proper result, the court may in addition, or instead, reduce the length of an individual sentence below what it otherwise would have been. [ 90 ] Applying these guidelines, I accept that the Newfoundland and Labrador Court of Appeal decision in Summers sets out that three years is an appropriate sentence for break and enter into a pharmacy involving the theft of narcotics.

The Crown asserts that this is

the starting point, referring to the alleged higher degree of planning and sophistication as well as increased moral culpability. However, it does not appear that the circumstances related to these offences differ appreciably from Mr. Summers’ prior conviction. Further, while Mr.

Summers now also has the 2016 conviction on his criminal record, the addition of an additional conviction on an already extensive criminal record would not justify a marked departure from what would be an otherwise acceptable sentence. [ 91 ] In this case, absent consideration of the totality principle, I would have sentenced the offender to three years on each count of break and enter either with the intent of committing an indictable offence or actually committing an indictable offence. In each instance, the moral culpability and intention of the offender is clear.

The offender actually broke into and entered the pharmacies and either did or attempted to leave with a quantity of prescription drugs to be sold in the community. I would have imposed a sentence of two years for count 3, the charge of attempted break and enter with intent to commit an indictable offence. While there is a similar degree of moral culpability, the charge is that of an attempt to break and enter and the offender did not cause as much property damage to the premises.

In any event, as counts 3 and 4 are being served concurrent to each other on the basis that they constitute a single criminal adventure, but consecutive to the other two counts, a lower sentence on count 3 would not change the overall result. I would also have ordered that the other two counts 2 and 7 be served consecutive to the other counts. This would have resulted in a combined sentence of nine years.

However, I find this combined sentence is unduly long and harsh. [ 92 ] Applying the totality analysis above, I find that a combined sentence of four years and eight months is an appropriate sentence for this offender and these offences. In light of my finding of what would otherwise have been an appropriate sentence for the individual offences, it is not possible to achieve the appropriate combined sentence by making any of the consecutive sentences concurrent.

As a result, in order to achieve the proper totality, I will make the following adjustments to what otherwise would have been the individual sentences: 1. The sentence for count 2, the Heart’s Delight break and enter, shall be reduced to two years and four months, to be served concurrent to count 7 and consecutive to concurrent sentences on counts 3 and 4; 2. The sentence for count 3, the Green’s Harbour break and enter, shall remain at two years, to be served concurrent to count 4 and consecutive to concurrent sentences on counts 2 and 7; 3.

The sentence for count 4, the Dildo break and enter, shall be reduced to two years and four months, to be served concurrent to count 3 and consecutive to concurrent sentences on counts 2 and 7; and 4. The sentence for count 7, the Baccalieu Trail break and enter, shall be reduced to two years and four months, to be served concurrent to count 2 and consecutive to concurrent sentences on counts 3 and 4. DISPOSITION [ 93 ] In conclusion, I find Mr. Summers guilty of counts 2, 3, 4 and 7 of the Indictment filed on February 10, 2017.

In respect of these convictions, I impose a combined sentence of four years and eight months of incarceration. [ 94 ] In accordance with section 719(3.1) of the Criminal Code , I grant Mr. Summers credit of one and one-half days for each day spent in pre-sentence custody. The Crown and counsel for the Accused both advised that the amount of time spent in custody for which credit should be given at this rate is the period from June 20, 2017 to the date of this sentencing hearing, i.e. 302 days. As a result, Mr. Summers will receive credit for that pre-sentence custody in the amount of 453 days.

The sentence imposed is therefore four years and eight months less pre-sentence credit of 453 days. [ 95 ] Mr. Summers shall be subject to the following ancillary orders: 1. A DNA order in Form 5.04 is made pursuant to

section 487.051(3) of the Criminal Code . 2. A victim surcharge is imposed in the amount of $200.00 per offence pursuant to section 737(2) (b)(ii) of the Criminal Code . _____________________________ Rosalie McGrath Justice