R. v. Roper, 2019 NLSC 163

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Roper , 2019 NLSC 163 Date : September 16, 2019 Docket : 201701G1299 Her Majesty The Queen v. Blayne Robert Allan Roper Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 11, 2019

Summary: The offender was sentenced to a term of imprisonment of 3.5 years on charges of possession of cocaine and oxycodone for the purposes of trafficking and possession of proceeds of crime in excess of $5,000.00. Appearances: Trevor N. Bridger Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Offender Authorities Cited:

CASES CONSIDERED: R. v. Kane, 2012 NLCA 53; R. v. Brake (2017), 139 W.C.B. (2d) 605, 2017 CarswellNfld 345 (Prov. Ct.); R.v. Blok-Andersen, 2014 NLTD(G) 141; R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289 (NLCA); R. v. Cuff,2019 NLSC 112; R. v. Burnett, 2019 NSSC 212; R. v. LeBlanc, 2019 NSSC 192; R. v. Devloo and Ong, 2018 MBQB 140; R. v. Tio,2019 BCSC 831; R. v. Match, 2012 BCSC 1492; R. v. Ketch, 2018 BCSC 204; R. v. Arthur, 2016 BCSC 317; R. v. Thomas, 2018BCSC 2168; R. v. Payne, 2012 NLTD(G) 106; R. v. Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R.222 (Nfld. C.A.); R. v.

Hutchings, 2012 NLCA 2 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] Blayne Robert Allan Roper plead guilty to and was convicted of the following three counts set out in an Indictment filed withthis Court on February 24, 2017: Count #1: On or about the 23rd day of May, 2016 at or near St. John’s in the Province of Newfoundland and Labrador, he did unlawfully have in hispossession, for the purpose of trafficking, cocaine, a substance listed in

schedule I of the Controlled Drugs and Substances Act, S.C.1996, c. 19, and did thereby commit an indictable offence, contrary to section 5(2)-5(3)(

a) of the said Act. Count #2: On or about the 23rd day of May, 2016 at or near St. John’s in the Province of Newfoundland and Labrador, he did unlawfully have in hispossession, for the purpose of trafficking, oxycodone, a substance listed in

schedule I of the Controlled Drugs and Substances Act, S.C.1996, c. 19, and did thereby commit an indictable offence, contrary to section 5(2)-5(3)(

a) of the said Act. Count #3: On or about the 23rd day of May, 2016 at or near St. John’s in the Province of Newfoundland and Labrador, he did have in hispossession, property or any proceeds of any property, to a value exceeding $5,000.00, knowing that all or part of the property or proceedsof the property, was obtained or derived, directly or indirectly, from the commission in Canada of an offence punishable by indictment,thereby committing an indictable offence, contrary to section 354(1)(a)-355(

a) of the Criminal Code, R.S.C. 1985, c. C-46. [2] The matter proceeded to sentencing based on an Agreed Statement of Facts. No pre-sentence report was provided. [3] Without going into the agreed facts in any detail, they establish that Mr. Roper was involved in drug trafficking with MichaelDouglas Smith out of the residence of Mr. Smith at 59 Lady Anderson Street, St. John’s, NL and the downstairs apartment at 59A LadyAnderson Street. [4] The police had been surveilling Mr. Smith and witnessed an interaction in a parking lot between Mr. Smith and two individualsfrom Gander, Daina Cuff and Dan Palmer.

When police subsequently stopped and arrested Mr. Cuff and Mr. Palmer, they uncoveredcocaine, oxycodone pills, morphine pills and cash. Mr. Smith then changed cell phones and vehicles. [5] Later police surveillance of Mr. Smith in May 2016 revealed Mr. Smith and Mr. Roper both driving an Acura RDX andtransporting suitcases to and from 59 and 59A Lady Anderson Street. They were also observed transporting a suitcase to the residence ofa known drug trafficker and leaving with a large duffle bag. Mr. Roper was then dropped off at the departures area of the St. John’sairport by Mr.

Smith on May 23, 2016. [6] Police arrested Mr. Roper and seized his suitcase and items on his person. Mr. Smith was also arrested in the Acura RDX. Police subsequently obtained warrants to search Mr. Roper’s suitcase, the residences at 59 and 59A Lady Anderson Street and the AcuraRDX. As a result of these searches, police discovered large quantities of drugs at the residences, including approximately 10.5kilograms of cocaine and 417 20mg oxycodone pills, as well as items indicative of a drug trafficking operation. The residences alsocontained over $229,000 in cash.

[ 7 ] A search of the Acura RDX revealed $29,690 in cash and a cellphone. [ 8 ] A search of Mr. Roper and his luggage revealed $11,525 in cash, a cell phone and approximately three grams of cocaine. A subsequent analysis of this cell phone revealed that Mr. Roper was being directed by Mr. Smith to deliver cocaine in ounce and kilogram quantities to various individuals in the St. John’s area and return with money owed to Mr. Smith. Mr. Roper’s payment was directly tied to the quantities he distributed. Mr. Roper also controlled Mr. Smith’s stash of drugs and money at 59A Lady Anderson Street in Mr.

Smith’s absence. [ 9 ] It is as against these facts and the submissions of counsel, that I am asked to impose a fit and appropriate sentence for Mr. Roper. Sentencing Submissions [ 10 ] Both counts 1 and 2 involve possession of a

schedule I drug under the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA ) for the purpose of trafficking. These charges are subject to a maximum sentence of lifetime imprisonment. The third charge, possession of proceeds of crime in excess of $5,000, carries a maximum sentence of ten years imprisonment. [ 11 ] For its part, the Crown seeks the following sentence: 1. A term of imprisonment of four-and-a-half (4.5) years on the count of possession of cocaine for the purpose of trafficking; 2.

A term of imprisonment of twenty-four (24) months for the possession of oxycodone for the purpose of trafficking, to be served concurrent to the term of imprisonment for count 1; 3. A term of imprisonment of twenty-four (24) months for the charge of possession of proceeds of crime in excess of $5,000, to be served concurrent to count 1. [ 12 ] The Crown notes that the two charges of possession for the purpose of trafficking arise out of the same criminal adventure. As such, they should be served concurrently.

The Crown acknowledges that the charge of possession of the proceeds of crime in excess of $5,000 would generally be considered a separate offence from the possession for the purpose of trafficking charges and therefore not part of a single criminal adventure. This is because possession of the proceeds of crime is evidence of past trafficking not associated with the drugs in the possession of an offender at the time of arrest.

However, taking into account the principle of totality, the Crown submits that it is appropriate that the term of imprisonment for count 3 be served concurrently to count 1. [ 13 ] For his part, counsel for the offender did not break down his suggested sentence between counts. Rather, in light of the fact that the Crown was conceding all counts should be served concurrently, submissions focused on an appropriate sentence for the most serious of the crimes, i.e. possession of cocaine for the purpose of trafficking.

Counsel for the offender says this should carry a term of imprisonment of anywhere between three (3) years and four and a half (4.5) years. Counsel for the offender asked that I consider the relative lack of aggravating factors, as well as the mitigating factors, in setting the term of imprisonment within that range. [ 14 ] In addition to the term of imprisonment, both counsel agree that I must impose a mandatory lifetime firearms prohibition in accordance with

section 109 of the Criminal Code , R.S.C., 1985, c. C-46 . A lifetime prohibition is required as Mr. Roper acknowledged a prior conviction for armed robbery in 2009 for which he received a ten-year firearms prohibition. [ 15 ] Counsel for the offender also concedes that it is appropriate for this Court to make an order of forfeiture of property seized in connection with the offences. [ 16 ] In relation to the forfeiture, the Crown provided the Court with a waiver of claim that had been executed by Michael Douglas Smith. To the extent that Mr.

Smith had any interest in the items seized, as noted therein, he waived any and all right, title, claim and interest that he may have in the forfeiture items absolutely and irrevocably. He also irrevocably waived his right to be notified of any proceedings, including any forfeiture application. Principles of Sentencing [ 17 ] In determining a fit and appropriate sentence for this offender and these offences, I must consider the statutory sentencing principles set out in

section 718 of 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. [ 18 ] The objectives that are expressly stated to achieve this purpose include:

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

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 the sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 19 ] Another fundamental principle of sentencing can be found 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. A number of aggravating and mitigating factors relative to

both the offence and offender are set out in

section 718.2. This

section also articulates the parity principle that a like sentence ought to be imposed on similar offenders for similar offences in similar circumstances. [ 20 ] In respect of the two counts under the CDSA , I must also consider section 10(1) of that Act , which reads as follows: 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. [ 21 ] It is generally conceded that general deterrence and denunciation are the dominant considerations in drug trafficking sentences. The punishment should be of sufficient severity to protect the public by discouraging any other members of the community from engaging in this type of criminal activity (Reference: R. v. Kane , 2012 NLCA 53 , per Welsh, J.A.). [ 22 ] It is also not contested that the possession of a

Schedule I drug for the purpose of trafficking is a serious crime requiring a significant term of imprisonment. The sale and use of illicit drugs causes far-reaching harm to individuals and the general public. [ 23 ] The drugs to which these charges relate are often referred to as “hard” drugs. In the Provincial Court decision of Judge Porter in R. v. Brake (2017), 139 W.C.B. (2d) 605, 2017 CarswellNfld 345 (Prov. Ct.), at paragraph 3 , the court makes the following statement with respect to sentences involving

Schedule I drugs: 3. The penalties for trafficking drugs and controlled substances vary according to the substances and drugs, which are particularized in the Schedules.

Schedule 1 includes "hard" drugs, including opium, codeine, morphine, hydromorphone, oxycodone, oxymorphone and cocaine. Given that they all belong to the same Schedule, sentences for the various offences will be comparable. [ 24 ] Understandably, counsel focused their submissions on the sentence for possession of cocaine for the purpose of trafficking, being the primary drug involved in these offences, and therefore the one to carry the higher sentence of the concurrent sentences.

However, as noted by Judge Porter in Brake , decisions in which an accused was sentenced for possession of cocaine for the purpose of trafficking would establish an appropriate range of sentencing for that type of offence. I further note that some of the cases submitted involving cocaine also dealt with sentencing for possession of oxycodone for the purpose of trafficking. [ 25 ] While counsel are in agreement with respect to the general principles applicable to sentencing, they are not fully aligned with respect to the appropriate range of sentencing for the possession of cocaine for the purpose of trafficking.

They also take slightly different views as to how this Court should consider the aggravating and mitigating factors relating to both the offence and the offender. [ 26 ] I wish to thank counsel for providing me with sentencing case law from this jurisdiction and other Canadian jurisdictions to consider. I will now review these cases. Case Law Submitted by the Crown R. v.

Blok-Andersen, 2014 NLTD(G) 141 [ 27 ] In Blok-Andersen , two individuals were found guilty by a jury of possession of cocaine for the purpose of trafficking on the same date and committing an unlawful offence under the CDSA for the benefit of, at the direction of, or in association with, a criminal organization. One of the individuals was also convicted of unlawfully trafficking cocaine and unlawfully having possession of cocaine for the purpose of trafficking on a separate date.

In that case, 28 kilograms of cocaine were located in stash houses along with cocaine found during the takedowns. [ 28 ] The Crown submits that the scale of operation in Blok-Andersen was quite similar to that before the Court, with the exception that the matter before me does not have the added factor of being a conspiracy or an involvement in a criminal organization. In commenting on the range of sentencing applicable to Mr. Blok-Andersen, the individual charged with the two additional counts, Dunn, J. noted the range of sentencing as being found in the Newfoundland cases of R. v. Kane and R. v.

Payne , referred to later in this decision. For the drug offence, Dunn, J. found that the comparable range of sentence was between two and seven years. One of the offenders, Mr. Strongitharm, was given a sentence of four years on the drug offence while the other, Mr. Blok-Anderson, was given a sentence of 5.5 years for the same offence. [ 29 ] However, counsel for the offender notes that Blok-Andersen is distinguishable as the matter went to a full trial before a jury. Further, at paragraph 76 of that decision, Dunn, J. noted that Mr.

Blok-Andersen, the individual who received a 5.5 year sentence, had acted in a supervisory and/or directive role over the others involved in the criminal organization. That organization involved the transport of cocaine from another province as well as its distribution and receipt of monies on sale. Counsel for the offender notes that it is generally recognized that the person at the top of the criminal organization should receive the greatest sentence. In this case, there is no evidence that Mr. Roper was the directing mind behind any criminal organization. His role was to assist Mr.

Smith in the sale and distribution of the cocaine. [ 30 ] With respect to Mr. Strongitharm, I note he transported cocaine from British Columbia to Newfoundland and Labrador on two occasions and was seen going in and out of stash houses over a period of a couple of months. While he was not the organizing mind, he was part of a criminal organization. R. v. Kane , 2012 NLCA 53

[31] In Kane, the Court of Appeal was dealing with an appeal from sentencing of an accused who had pleaded guilty to conspiracy totraffic cocaine and marijuana. The trial judge recognized that this was a fairly large conspiracy with potentially broad impact. [32] The Crown refers to paragraph 16 of Kane in which the Court of Appeal noted its prior decision in R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289 (NLCA).

At paragraph 59 of that decision, Steele, J.A. considered that a sentence ofimprisonment for up to four years would have been appropriate for the offence of conspiring with others to import cocaine for sale in theprovince for the purpose of monetary gain. He noted the need for general deterrence, particularly where a conspiracy amounting to acommercial enterprise with the object of monetary gain was involved in the delivery and distribution of significant amounts of cocaine. [33] At paragraph 11, Welsh, J.A. found that Mr.

Kane did more than carry drugs as in the case of a courier, and did more than act asa conduit for the drugs and money. He was responsible for setting up and maintaining a stash house, helping to set up a second stashhouse and seeing to the distribution of large amounts of drugs. In addition, he delivered drugs to traffickers and instructed them on howthe drugs were to be mixed with cutting agents in portions to be sold to other traffickers or purchasers. Finally, he had responsibility forand was trusted with significant sums of money. On appeal, his sentence was increased to four years’ imprisonment.

The Crownsubmits that this situation is similar to that of Mr. Roper who was not just a minor player in respect of the drug trafficking. [34] On the other hand, counsel for Mr. Roper says this case is distinguishable as it deals with a conspiracy to traffic versus a chargeof possession of a

Schedule I drug for the purpose of trafficking. In particular, counsel for Mr. Roper refers to paragraph 12 of thedecision where the Court of Appeal distinguishes the operation of the conspiracy from the role of traffickers who, while takingadvantage of the availability of the drugs provided by the conspirators, were not part of the organized importation and distributionscheme. In this case, there is no evidence that Mr. Roper was part of any such conspiracy. [35] Counsel for Mr. Roper also says that the evidence of Mr.

Kane’s involvement noted by Welsh, J.A. at paragraph 11 was farmore extensive than the involvement by Mr. Roper. It included the renting and/or operation of two stash houses, the delivery of drugsand instructions as to how to cut them, as well as responsibility for significant sums of money. Those aggravating features are notpresent in respect of Mr. Roper’s offences. R. v. Brake, (2017) 139 W.C.B. (2d) 605, 2017 CarswellNfld 345 (Prov.

Ct.) [36] The Crown refers to this case, not because the amount of cocaine was similar, but for its comprehensive review of case lawinvolving sentences for possession of hard drugs for the purpose of trafficking. In that case, an accused was sentenced to two years’imprisonment for possession of one kilogram of cocaine for the purpose of trafficking.

The accused was convicted after trial in acircumstance where the evidence made it unclear whether he and another were equal partners in cocaine trafficking or whether one was acourier for the other. [37] Again, counsel for the offender differentiates this case on the basis that the matter went to a full trial and Mr. Brake continuedto maintain his innocence, even after conviction. [38] I also note that this case, particularly at paragraphs 11 to 22, notes the wide and varying range of sentences for this offencethroughout the country. R. v.

Cuff, 2019 NLSC 112 [39] The Crown refers to this recent decision of Khaladkar, J. of this Court in which an accused had entered guilty pleas to twocounts of possession of

Schedule I drugs for the purposes of trafficking, namely cocaine and oxycodone. The accused had no priorconvictions and cooperated with the police. As well, he entered a plea of guilty, though not at the first opportunity. The drugs had astreet value of almost $90,000. It is notable that Mr. Cuff is the same Daina Cuff who was charged with possession of drugs for thepurpose of trafficking after he was observed meeting with Michael Smith and returning to Gander. Mr.

Cuff was given a term ofimprisonment of thirty-six (36) months on the charge of possession of cocaine for the purpose of trafficking and three years concurrenton the charge of possession of 208 oxycodone pills for the purpose of trafficking. [40] Counsel for the offender agrees that the amount of drugs in Mr. Cuff’s possession was less than the amount in this case. However, counsel for Mr. Roper asks that I be mindful of the aggravating factor that Mr. Cuff possessed weapons in his vehicle; namely,a can of bear spray, an extendable baton, a bat and a pellet handgun. R. v. Burnett, 2019 NSSC 212 [41] Mr.

Burnett was an RCMP officer who stole ten kilograms of cocaine from an RCMP exhibit locker and provided it to a friend. That friend then passed it along to a third party to traffic, with the proceeds being divided three ways. The Crown refers to this case forits review of sentencing ranges for the offences in question. At paragraph 17 of that decision, the court noted that the sentencing rangefor selling cocaine at that volume is five to eight years in Nova Scotia. [42] However, counsel for the offender submits that this case has very little relevance to the one before me.

In particular, Mr.Burnett was an RCMP officer who committed a serious breach of trust. He was sentenced to six years in prison for trafficking incircumstances that would evoke extreme public abhorrence for his actions. R. v. LeBlanc, 2019 NSSC 192 [43] This is another case from the Supreme Court of Nova Scotia in which Rosinski, J. noted a range of sentencing for trafficking incocaine as being between five and eight years. In that case, the trafficking involved a mid-level operation, selling both as a petty retailer

to individuals and in bulk to individuals who would then sell as a petty retailer to individuals. There was indicia of ongoing trafficking operations but only 210 grams of cocaine were recovered in total. At paragraph 22, the court noted the range for medium scale retailers and small wholesalers (distributing more than 1/3 kilogram up to lower single digit kilograms) as being in the five to eight year range. In that case, Mr. LeBlanc was given a term of imprisonment of five years. [ 44 ] However, counsel for the offender notes that Mr.

LeBlanc was on parole for the same offence at the time of committing the offence for which he was sentenced. I further note that young persons were specifically identified as customers and the activity was ongoing over a period of at least eight weeks. R. v. Devloo and Ong , 2018 MBQB 140 [ 45 ] In this decision of the Manitoba Court of Queen’s Bench, two individuals were sentenced for trafficking four kilograms of cocaine in exchange for $212,000 cash. The arrest came after a year-long investigation conducted by the police to target high-level drug dealers.

One participant received a term of imprisonment of eight years, while the other received a prison term of ten years. [ 46 ] For his part, counsel for Mr. Roper notes that this case only goes to show that there is an extremely wide range throughout Canada, and within Manitoba, with respect to sentencing for such offences. When reviewing the circumstances of that case, I also note that the court specifically identified the two offenders as high-level traffickers who were found guilty of conspiracy to traffic cocaine.

In respect of one of the offenders, he was on bail for a similar offence when he committed the offences for which he was sentenced. The other individual was noted as having engaged in planning and execution of activities using complex anti-detection techniques. As well, there was no guilty plea. Case Authorities submitted by Mr. Roper R. v. Tio , 2019 BCSC 831 [ 47 ] In this decision from the British Columbia Supreme Court, Mr. Tio was sentenced to 4.5 years imprisonment for possessing thirteen kilograms of cocaine for the purpose of trafficking. Mr.

Tio was also involved with a lab that was trafficking cocaine at a wholesale level. At paragraphs 53 to 55, the court noted that there is a wide range of sentences for possession of cocaine for the purposes of trafficking. Many of the cases referred to by the defence in the two to four year range were cases where there was low level involvement, such as being a mere courier. However, many of the cases provided by the Crown in the eight to nine year sentencing range were not helpful as they involved persons who were operating at a high level within a wholesale trafficking operation.

The court found that the more helpful cases were cases where the possession of cocaine for the purpose of trafficking in kilogram amounts involved a level of involvement beyond courier or babysitter, but not cases where the offender was the controlling mind. The Court noted that the sentences in those circumstances ranged from three and a half years to five and a half years. Both the quantity of the cocaine and the level of involvement were relevant to establishing the sentence within the range. R. v.

Match , 2012 BCSC 1492 [ 48 ] This is another case from the British Columbia Supreme Court in which a very large quantity of cocaine, approximately 40 kilograms (almost four times the amount recovered in this case), was found to be in the possession of the offenders for the purpose of trafficking. In light of the large quantity, the court found that a substantial sentence was warranted. However, the offenders had no prior criminal history with regard to drugs or the drug trade and were relatively young men with solid family relationships.

The court imposed a term of imprisonment of five and one-half years to strike a balance between the principles of general deterrence and rehabilitation. R. v. Ketch , 2018 BCSC 204 [ 49 ] This is another sentencing decision from the British Columbia Supreme Court. Counsel for Mr. Roper acknowledges that the sentence of two years less a day for possession of two kilograms of cocaine for the purpose of trafficking is low on the scale. This is undoubtedly due to the mitigating factors of the absence of a prior criminal record and the impact a prior head injury may have had on the behaviour of the offender.

However, this was also a case where the offender had gone through a full trial. R. v. Arthur , 2016 BCSC 317 [ 50 ] Again, this is a case from the British Columbia Supreme Court in which the offender was sentenced to three years’ incarceration for possession of ten kilograms of cocaine for the purpose of trafficking. Counsel refers to this case, noting that the range in British Columbia appears to be somewhat lower than in Nova Scotia, where a similar offender may have received a sentence in the range of five years. However, counsel for Mr.

Roper notes that this case involves circumstances very similar to the that before me. The amount of cocaine is comparable as are the circumstances of the offender. In that case, Mr. Arthur was assigned to pick up the cocaine, had knowledge of the cocaine and had spent time in the residence in which the cocaine was located. There was also indicia of involvement in trafficking. The accused had no prior criminal record and had expressed genuine remorse for the offence. R. v. Thomas , 2018 BCSC 2168 [ 51 ] Mr. Thomas pled guilty to possessing thirty kilograms of cocaine for the purpose of trafficking.

His guilty plea came after a voir dire ruling that his arrest was lawful but prior to the start of trial. The evidence revealed that Mr. Thomas’ involvement was minor in nature, having chosen to help his friend retrieve cocaine. However, Mr. Thomas knew that he was retrieving drugs. The court also gave consideration to the offender’s aboriginal background and unfortunate childhood. Further, Mr. Thomas expressed remorse for his actions. However, he did have a prior criminal record, including a prior conviction for trafficking in a controlled substance. Mr.

Thomas’ sentence was a period of incarceration of three and a half years. R. v. Payne , 2012 NLTD(G) 106 [ 52 ] The last case referred to by counsel for the offender is a decision of Goodridge, J., then of this Court. In that case, two

offenders, a common-law couple, were sentenced for various crimes arising from their respective roles in the possession and trafficking of cocaine, ecstasy, marijuana and oxycodone. The more significant charges arose from the purchase of a large volume of illegal drugs from suppliers in Ontario. These drugs were forwarded through the postal system to contacts in this Province and forwarded on for street level sales. The volume of cocaine at issue was three kilograms. With respect to Mr.

Payne, he was found to have been the architect of the enterprise and sentenced to four years’ incarceration for possession of cocaine for the purpose of trafficking and one year for possession of 289 oxycodone pills for the purpose of trafficking. His co-accused common-law spouse had a lesser role but was still an active participant with full knowledge.

She was sentenced to a period of incarceration of two years. [ 53 ] Having considered the above case law and submissions of counsel, I find that the acceptable range of sentence in this Province for possession of cocaine for the purpose of trafficking in similar circumstances is generally between three years and 4.5 years.

The circumstances I have considered in determining this range is the fact that the offender was not a directing mind of the drug operation, but the amount of cocaine that was involved was substantial as was the amount of cash, being indicative of some involvement in the larger- scale sale of cocaine for profit. [ 54 ] I base this range, in large part, on case law from this Province; in particular, Kane , Cuff , Payne and Strongitharm , which had sentences ranging from 3 to 4.5 years for offenders and offences with somewhat similar circumstances.

The comments of the Court of Appeal in Kane , referring to its prior decision in Oates , are particularly compelling. Kane , Oates and Strongitharm all dealt with large conspiracies to import cocaine for which four years was seen as an appropriate sentence for someone who was not the directing mind. Meanwhile, the other Newfoundland and Labrador cases of Cuff and Payne dealt with possession of cocaine for the purpose of trafficking resulting in sentences of three and four years, respectively.

These also involved circumstances in which the amount of cocaine was not as significant but the offender had a slightly higher level of involvement. [ 55 ] While I recognize that there is a broad and varied range of sentences arising from case law in other Canadian provinces, I have reviewed the extra-provincial cases provided by counsel and find the cases of Tio , Arthur , and Thomas helpful as the circumstances of the offence and the offender’s involvement are somewhat similar to the case before me.

They all involved large quantities of cocaine, at the multiple kilogram level, and an offender who played more than a minor role. Sentences ranged from three to four-and-a-half years. [ 56 ] Of course, it must be recognized that there may be reasons why a sentence could fall under or over this range based upon the particular circumstances of the offence or offender. [ 57 ] I will now consider the mitigating and aggravating factors as well as the circumstances of this particular offender to determine what is an appropriate sentence within that range.

Mitigating Factors [ 58 ] With respect to mitigating factors, the Crown has not provided me with a criminal record for Mr. Roper. However, counsel for the Crown and counsel for Mr. Roper concede that Mr. Roper has a prior 2009 conviction in Ontario for armed robbery for which he received a sixteen-month conditional sentence. He has no convictions for any similar or related offences. [ 59 ] I must also consider that Mr. Roper entered a guilty plea to the charges, thereby saving the Crown the expense of a trial. The Crown notes that it was not until late in the proceedings that Mr. Roper entered a guilty plea.

As such, the Crown was still obligated to incur the expense of having an officer travel to Ontario and return with Mr. Roper to this Province as Mr. Roper was held pending unrelated charges in Ontario. [ 60 ] For his part, counsel for Mr. Roper asks that I consider the somewhat unusual circumstances of this case with respect to the late guilty plea. This matter had been previously scheduled for trial and counsel was working for months to have the matter transferred to Ontario where a guilty plea would be entered.

It was only once discussions broke down with the Crown in Ontario that the matter was put back on for trial. Counsel for Mr. Roper was then unable to locate his client until just before the trial dates when the Crown discovered that Mr. Roper was incarcerated in Ontario. That is the reason why the guilty plea came so late in the day. [ 61 ] Another mitigating factor is the somewhat lesser role that Mr. Roper played in respect of the offences. He was not a directing mind of the enterprise.

His role was limited to taking instructions from Michael Smith and following those instructions by delivering the cocaine to various individuals and returning with the money owed to Mr. Smith. He also had control over money and drugs in the residences for a short time while Mr. Smith was away. [ 62 ] Further, there is no evidence to indicate that Mr. Roper was involved with Michael Smith’s cocaine trafficking operation prior to May 13, 2016, just ten days before his arrest, or that he received any remuneration beyond the cash that was seized from him at the airport.

As well, there is no evidence that he had any control over the seized cocaine after he left for the airport. His counsel described his role as being more of a lieutenant than a boss. [ 63 ] Counsel for Mr. Roper also reminds the Court that, while it became evident in the week prior to trial that Mr. Roper was incarcerated in Ontario as an order was required that he be delivered to this Province for trial, Mr. Roper is being held on unrelated charges.

He has not been convicted of any criminal offence and his current incarceration is neither a mitigating nor aggravating factor. [ 64 ] I must also consider the personal circumstances of the offender. Mr. Roper is a 30 year old male with three young children, ages 1, 2 and 4. Counsel for Mr. Roper also advised the Court that Mr. Roper has a trade as a drywaller. [ 65 ] Mr. Roper also gave a statement to the Court at the end of his sentencing. He appeared genuinely remorseful, apologizing for his involvement in the criminal activity.

While he did not wish to downplay his role, he said that he made a stupid decision to make quick money after the birth of his first child. He had wanted to start his own small business and lacked funds to do so. He expressed his desire to start a hard-working life, wishing that he could go back and have worked honestly at that time in his life. Aggravating Factors

[66] Clearly, one of the most serious aggravating factors is the nature and significant quantity of drugs involved. Both cocaine andoxycodone are considered “hard” drugs. The quantity of cocaine that was located was approximately 10.5 kilograms. [67] As well, while it is apparent that Mr. Roper was not the architect or key player in the trafficking enterprise, he did play morethan a courier role. He was involved in controlling Michael Smith’s stash of drugs and money while Mr. Smith was away, deliveringcocaine to various individuals and returning with money owed to Mr. Smith.

He carried out these activities for a profit, rather than tofeed a drug addiction, with his payments being tied directly to the quantities he distributed at both an ounce and kilogram quantity level. Totality [68] Finally, I must consider the principle of totality. As noted by Goodridge, J. in Payne, at paragraph 45, in referring to R. v.Crocker (1991), (NL CA), 93 Nfld. & P.E.I.R. 222, 292 A.P.R. 222 (Nfld. C.A.), consecutive sentences should beimposed unless there is a valid reason not to do so.

However, concurrent sentences may be imposed where multiple convictions arise outof more than one offence which constitutes a single criminal adventure.

Concurrent sentences may also be imposed to achieve propertotality for multiple convictions. [69] I agree with the Crown and counsel for the offender that possession of cocaine and oxycodone for the purpose of trafficking,while two separate offences, should be treated as a single criminal adventure, thereby attracting concurrent sentences. [70] I also accept that, in light of the significant period of incarceration that must be imposed for count 1, the sentence for possessionof proceeds of crime in excess of $5,000 should attract a concurrent sentence on the basis of the principle of totality.

Otherwise, thesentence would be overly harsh and crushing on this relatively young offender. [71] The totality principle is comprehensively set out by Green, C.J.N.L., as he then was, at paragraph 84 of R. v. Hutchings, 2012NLCA 2 where he provided guidelines for an analytical approach to sentencing and the application of the totality principle.

Thisrequires the identification of a proper sentence for each offence, determining whether they should be consecutive or concurrent on theground that they constitute a single criminal adventure, and then taking one last look at the combined sentence to determine whether it isunduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender. disposition [72] Taking into account all of the above sentencing principles, aggravating and mitigating factors, and the offender’s presentcircumstances, I have decided to impose a sentence in the lower to mid-range for Mr.

Roper. While he was not the directing mind of thistrafficking operation, his involvement included a degree of responsibility with respect to the delivery, sale and safeguarding of the drugsbeyond what one would expect of a lower level participant. However, there was no evidence of any lengthy or continuing involvement. I am also mindful of his relative youth and that he is a father to three young children. He appeared genuinely remorseful and tookresponsibility for his actions, as evidenced by his guilty plea.

While the guilty plea was not given at the earliest opportunity, I accept theexplanation for the delay. 1. For Count No. 1 – Possession of cocaine for the purpose of trafficking – 42 months incarceration; 2. For Count No. 2 – Possession of oxycodone for the purpose of trafficking – 24 months incarceration concurrent to Count No.1; 3. For Count No. 3 – Possession of proceeds of crime in excess of $5,000 – 24 months incarceration, concurrent to Count No. 1on the basis of the principle of totality; 4.

Pursuant to section 490(5) and (9) of the Criminal Code, the following property shall be forfeited to Her Majesty in Right ofCanada: i) $93,430.00 in Canadian currency found in 59 Lady Anderson Street; ii) Notebook containing scoresheets found in 59 Lady Anderson Street; iii) Blackberry cellular telephone; iv) $136,385.00 in Canadian currency found in 59A Lady Anderson Street;

v) Food Saver vacuum sealer; vi) Food Saver vacuum bags; vii) Elastic bands; viii) Notebook containing scoresheets; ix) Cooking pan;

x) Money counter; xi) Digital Scales; xii) $29,690.00 in Canadian currency found in the Acura RDX; xiii) Silver iPhone cellular telephone found in the Acura RDX;

xiv) $11,525.00 in Canadian currency found on Mr. Roper’s person; xv) A Sony Expira cellular telephone found on Mr. Roper’s person; and xvi) Scoresheets. 5. In accordance with

section 109 of the Criminal Code , I impose a mandatory order prohibiting Mr. Roper from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for life. 6. No DNA order was requested by the Crown. It is discretionary and, in the circumstances before me, I decline to make a DNA order. _____________________________ Rosalie McGrath Justice