R. v. Pittman, 2018 NLSC 135

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Pittman , 2018 NLSC 135 Date : June 19, 2018 Docket : 201701G3276 Her Majesty The Queen v. Darren Pittman Before: Justice William H. Goodridge Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 15, 2018 Date of Oral Judgment: June 15, 2018

Summary: The offender was convicted of trafficking in cocaine. A joint sentencing submission, suggesting a prison term of a two and a half year sentence less credit for pre-sentence custody, was accepted.

Appearances: John D. Brooks, Q.C. Appearing on behalf of the Crown Erin K. Breen Appearing on behalf of the Offender Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak, 2010 SCC 6 , 2010 S.C.C. 6; R. v. Kane, 2012 NLCA 53; R. v. Anthony-Cook,2016 SCC 43 , 2016 S.C.C. 43; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297; R. v. Brake (2017), 139 W.C.B. (2d)605, [2017] N.J. No. 300 (NL Prov. Ct.); R. v. Snow, 2006 NLTD 3; R. v. Kane, 2012 NLCA 53; R. v. Stewart, 2012 NLTD(G) 187; R. v.Byrne, 2009 NLCA 3; R. v. Summers, 2014 SCC 26 , 2014 S.C.C. 26; R. v. Safarzadeh-Markhali, 2016 SCC 14 , 2016S.C.C. 14.

STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Goodridge, J.: INTRODUCTION [1] On February 8, 2018, Darren Pittman, age 50, pleaded guilty and was convicted for unlawfully trafficking in cocaine contraryto section 5(1) of the Controlled Drug and Substances Act, S.C. 1996, C. 19 (“CDSA”). Mr.

Pittman had possession of just over akilogram of cocaine when he was apprehended outside a service station at Goobies, NL on June 22, 2016. [2] The Bill of Indictment provides as follows: That Darren Pittman on or about the 22nd day of June, 2016 at or between St. John’s and Goobies, in the Province of Newfoundland andLabrador, did unlawfully traffic in cocaine, a substance included in

Schedule 1 of the Controlled Drugs and Substances Act, S.C. 1996, c.19, and did thereby commit an offence contrary to Section 5(1) of the said Act. issue [3] Crown and defence counsel made a joint submission on the sentence, suggesting a prison term of two and a half years, plusvarious ancillary Orders. The issue is whether the Court should approve the joint submission. facts [4] There was an agreed statement of facts.

I will not repeat the eight-page statement, but mention the main features supportingthe conviction. [5] On June 22, 2016, during police surveillance activity at Paradise, Newfoundland and Labrador, Mr. Pittman was observedaccepting delivery of a brick-shaped package containing 1055 grams of cocaine. He placed the package of cocaine in the trunk of hisvehicle and transported it to a service station at Goobies where he met with a third party. The third party entered the Pittman vehicle andsat in the passenger seat while Mr. Pittman retrieved the cocaine from the trunk.

When the police moved in – moments later – thepackage was on the front passenger floor between the legs of the third party. Mr. Pittman acknowledged to the arresting officer that heowned the cocaine and that he had purchased the “brick” for $50,000. The cocaine was at 31% purity. objectives and principle of sentencing [6]

Section 718 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and

section 10 of the CDSA, indicate that a fundamentalpurpose of sentencing is that of contributing, along with crime prevention, to respect for the law and the maintenance of a just, peacefuland safe society. This purpose is met by the imposition of just sanctions that reflect the various sentencing objectives set out in bothprovisions.

These sentencing objectives include denunciation, general and specific deterrence, separation of offenders, rehabilitation,treatment in appropriate circumstances, reparation, promotion of a sense of responsibility in the offender and acknowledgement of theharm caused to the victim and to the community. These objectives are discussed in R. v. Nasogaluak, 2010 SCC 6 , 2010 S.C.C.

6 at paragraphs 39 and 40. [7]

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

Section 718.2 provides a non-exhaustive list of secondary sentencingprinciples, including the consideration of aggravating and mitigating circumstances, the principles of parity and totality, and arequirement to consider all available sanctions other than imprisonment that are reasonable in the circumstances. [8] In R. v. Kane, 2012 NLCA 53, Welsh, J.A. suggested at paragraph 13 that general deterrence and protection of the public arethe paramount considerations in sentencing those engaged in cocaine trafficking for monetary gain.

LAW [9] A trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring theadministration of justice into disrepute or is otherwise contrary to the public interest. This principle is discussed in R. v. Anthony-Cook,2016 SCC 43 , 2016 S.C.C. 43 at paragraphs 32, 34 and 35.

Moldaver, J. writing for a unanimous court, stated: 32 … a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring theadministration of justice into disrepute or is otherwise contrary to the public interest. 34 … a joint submission should not be rejected lightly, a conclusion with which I agree.

Rejection denotes a submission so unhingedfrom the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all therelevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioningof the justice system had broken down. This is an undeniably high threshold -- and for good reason, as I shall explain. 35 Guilty pleas in exchange for joint submissions on sentence are a "proper and necessary part of the administration of criminaljustice" (Martin Committee Report, at p. 290).

When plea resolutions are "properly conducted [they] benefit not only the accused, butalso victims, witnesses, counsel, and the administration of justice generally" (Martin Committee Report, at p. 281 (emphasis deleted)). [10] For the reasons detailed below, I find that the proposed sentence of two and a half years is reasonable. Acceptance of the jointsubmission will not bring the administration of justice into disrepute or run contrary to the public interest. Accordingly, I accept the jointsubmission. ANALYSIS [11] In R. v.

Silveira, (SCC), [1995] 2 S.C.R. 297, L'Heureux-Dubé, J. stated at paragraph 142 that “the crime [ofcocaine trafficking] is a blight on society and every effort must be made to eradicate it.” Cocaine trafficking preys upon the addiction ofothers for profit; it leaves in its wake inestimable individual and social damage and desolation. We often see these consequences in thecourts of this Province: families destroyed, children removed from addict parents, addicts living in deplorable conditions, crimes(sometimes violent crimes) committed to fund the habit, suppliers using violence to enforce payment.

This reality, sometimes invisible tomid or low level participants, is the dark truth behind cocaine trafficking. The heavy negative consequences flowing from cocainetrafficking warrant heavy sentences for offenders. Yet every sentence must fit the circumstances of the offender and the circumstances ofthe offence, and fall inside the broad range of comparable sentencing decisions. [12] The principle of parity, mentioned above, and codified in

section 718.2(

b) of the Criminal Code, requires that a sentenceshould be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The suggestedprison term of two and a half years is appropriate after consideration of the circumstances of Mr. Pittman, and the unique circumstancessurrounding this offence. [13] The broad range of sentences for trafficking convictions involving this volume of cocaine is roughly between two and fiveyears. An excellent review of sentencing decisions supporting this broad range, is found in the R. v. Brake (2017), 139 W.C.B. (2d) 605,[2017] N.J.

No. 300 (NL Prov. Ct.) decision of Porter, Prov. Ct. J. at paragraphs 11 to 24. Sample decisions within that broad rangeinclude: • R. v. Snow, 2006 NLTD 3 - 25-year-old, with a prior record of drug offences, was convicted for conspiracy to traffic in cocaine andpossession for the purpose of trafficking. The quantity of cocaine involved was 279 grams; it was high purity; the value was $28,000 to$32,000. The sentence was 3.5 years. • R. v. Kane, 2012 NLCA 53 - 29-year-old first-time offender, pleaded guilty to conspiracy to traffic in cocaine and marihuana.

Therewas a large volume of cocaine involved, but the offender’s role was found by the trial judge to be relatively minor. At paragraph 24Welsh, J.A. stated that a four-year sentence would be “appropriate for an offender like Mr. Kane who, for the purpose of monetary gain,has played a trusted and necessary role in a sophisticated, commercial level conspiracy to traffic in significant amounts of cocaine…” • R. v. Stewart, 2012 NLTD(G) 187 - 44-year-old, with a prior record of drug offences, was convicted of possession for the purposeof trafficking. The quantity of cocaine involved was 116.8 grams.

The court imposed a jail term of two years for the cocaine offence. • R. v. Byrne, 2009 NLCA 3 - 23-year old offender, with no criminal record, was convicted for trafficking in cocaine (283 grams). Aconditional sentence of two years less a day was not disturbed by the Court of Appeal. The court stated that a conditional sentence of twoyears less a day should be imposed only where the mitigating factors predominated. [14] Mr. Pittman has seven prior convictions for “designated substance offences” under the CDSA. That is an aggravating factor and

would usually warrant a sentence near the middle of the range. Allowing Mr. Pittman a sentence near the lower end of the range is stillreasonable here because of the mitigating factors in play, particularly the guilty plea. The guilty plea was part of a plea deal in which theCrown agreed to the joint submission. Without the plea deal there was no certainty of conviction. There was a pre-trial applicationpending in which Mr. Pittman alleged several Charter violations by police in the investigation, the arrest, and the post-arrest processingof evidence. This was not a frivolous application.

There was a possibility that the application would succeed. If it had succeeded then thelikely result would have been an abrupt termination of the prosecution, either from exclusion of evidence or a court ordered stay ofproceedings. The deal for a guilty plea in exchange for a sentence at the lower end of the range was a compromise by both sides.

Part IVof the Crown’s sentencing brief sets out the foundation of the compromise: In terms of quid pro quo, the Federal Crown acknowledges that the guilty plea is a significant factor here as it provides certainty of theresult. While the Federal Crown’s case is relatively strong, the Federal Crown concedes that there were issues of continuity inpossession of the drugs that were the subject of the transaction. Further, the Federal Crown concedes that Defence Counsel had anarguable case on the grounds of arrest for Darren Pittman.

Federal Crown also concedes there was an arguable case for the Defence as itrelated to challenging the [Information to Obtain] and various production [Data Number Recorder] warrants used in the investigation.Therefore, the Federal Crown states the quid pro quo in this case is significant. The guilty plea provides certainty to the Federal Crownand further Defence gives up its right to make Charter Applications on various issues at trial. [15] I also acknowledge that Mr. Pittman apologized in Court today for his unlawful actions. That is a positive first step towardsuccessful rehabilitation.

DISPOSITION Prison term [16] I impose a prison term of two and a half years, less credit for pre-sentence custody. Mr. Pittman has eight days of pre-sentencecustody. I am permitted to allow, under section 719(3.1) of the Code, time and a half credit for pre-sentence custody. The Crown agreesthat this is an appropriate case to allow this enhanced credit. Consistent with the principles discussed in R. v. Summers, 2014 SCC 26, 2014 S.C.C. 26 and R. v. Safarzadeh-Markhali, 2016 SCC 14 , 2016 S.C.C. 14, I allow time and a half credit (12days) for pre-sentence custody.

My reasons for that conclusion are (1) to account for loss of eligibility for parole and early release, and(2) to account for the harshness of the conditions during pre-sentence custody. The net sentence works out to 902 days. Firearm and Weapon Prohibition [17] Pursuant to

section 109 of the Code, I impose a firearm and weapon prohibition. The duration is life because Mr. Pittman hasprior convictions under the CDSA. This lifetime ban applies to any firearm, cross bow, restricted weapon, prohibited weapon, prohibiteddevice, ammunition, and explosive substance. Victim Fine Surcharge [18] Pursuant to sections 734.1 and 737 of the Code, Mr. Pittman shall pay a victim fine surcharge of $200.00, within 30 days.

Seizure Order [19] I grant an order, pursuant to section 16(1) of the CDSA, that all offence- related property seized by the police in connection withthis offence be forfeited to Her Majesty the Queen in Right of Canada to be disposed of in accordance with the law. The vehicle is notpart of the offence-related property and it shall be returned to Mr. Pittman. [20] Crown counsel shall provide a copy of the draft Order to counsel for Mr. Pittman prior to filing with this Court. If there is anydispute as to which items constitute offence-related property, then the Crown may apply for a determination.

DNA Order [21] Pursuant to subsections 487.051(1) and

(2) I authorize the taking of bodily substances from Mr. Pittman for forensic DNAanalysis (Form 5.03 Order). _____________________________ William H. Goodridge Justice