R. v. Hepditch, 2018 NLSC 55

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Hepditch , 2018 NLSC 55 Date : March 14, 2018 Docket : 201706G0100 Her Majesty The Queen v. Jason Hepditch Before: Justice Sandra R. Chaytor Edited Reasons for Judgment Given Orally Place of Hearing: Grand Bank, Newfoundland and Labrador Date of Hearing: March 12, 2018 Date of Oral Judgment: March 13, 2018

Summary: The offender was sentenced to 16 months incarceration for each of two counts of trafficking in oxycodone; 16 months for possession of oxycodone for purpose of trafficking; 6 months incarceration for willfully attempting to obstruct the course of justice contrary to section 139(1) of the Criminal Code of Canada ; and 6 months for each of 3 counts of failing to comply with probation orders, to be served concurrent to each other but consecutive to the other sentences imposed.

Appearances: Mr. Glen W. Picco, Q.C. Appearing on behalf of Her Majesty The Queen Ms. Alison J. Manning Appearing on behalf of Her Majesty The Queen Mr. Jason A. Edwards Appearing on behalf of Jason Hepditch Authorities Cited: CASES CONSIDERED: R. v. Bearns, [1989] N.J. No. 179, 77 Nfld. & P.E.I.R. 10 (Nfld. C.A.); R. v. Byrne, 2009 NLCA 3; R. v.Mitchell, 2017 NLCA 26; R. v. Laccasse, 2015 SCC 64; R. v. Strickland, 2010 NLTD 2; R. v. Hillier, 2016 NLCA 21; R. v. Woodford, (NL PC), [2013] N.J. No. 141, 335 Nfld. & P.E.I.R. 336 (NLPC); R. v. Murphy, 2011 NLCA 16; R. v. O’Quinn,2017 NLCA 10; R. v.

Hennebury, (NL CA), [1996] N.J. No. 37, 138 Nfld. & P.E.I.R. 56 (Nfld. C.A.) R. v.McCarthy, 2015 NLPC 1314A00252. STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code of Canada, R.S.C. 1985, c. C-46. REASONS FOR JUDGMENT Chaytor, J.: OVERVIEW AND FACTS [1] On November 20, 2017 Jason Hepditch entered guilty pleas to the following eight offences: (

i) One count of having in his possessing for the purpose of trafficking, oxycodone contrary to section 5(2) of the Controlled Drugs andSubstances Act (“CDSA”), specifically: Count 2: That on or about the 17th day of February, 2017 at Marystown, Newfoundland and Labrador, he did unlawfully have in hispossession for the purpose of trafficking, a substance included in

Schedule I of the Controlled Drugs and Substances Act, oxycodone,contrary to Section 5(2) of the Controlled Drugs and Substances Act. (ii) Two counts of trafficking in a controlled substance, oxycodone, contrary to section 5(1) of the CDSA, specifically: Count 1: That he did on the same date at Marystown, Newfoundland and Labrador, traffic in a controlled substance, oxycodone,contrary to Section 5(1) of the Controlled Drugs and Substances Act.

Count 4: That on the same date he did at Marystown, Newfoundland and Labrador, traffic in a controlled substance, oxycodone, contraryto Section 5(1) of the Controlled Drugs and Substances Act. (iii) One count of having in his possession cannabis (marihuana) contrary to section 4(1) of the CDSA, specifically: Count 3: That on the same date at Marystown, Newfoundland and Labrador, he did have in his possession cannabis (marihuana) contraryto Section 4(1) of the Controlled Drugs and Substances Act and punishable by section 4(5). (iv) Three counts of breaching

section 733.1 of the Criminal Code of Canada (“the Code”) in that on the same date at Marystown,Newfoundland and Labrador, he did, without reasonable excuse, fail to comply with three separate probation orders dated October 23,2014, June 23, 2015 and January 6, 2017 by failing to keep the peace and be of good behavior (Counts 5, 6 and 7); and (

v) One count of willfully attempt to obstruct the course of justice contrary to section 139(1) of the Code and as set out in subsection139(3) and punishable by section 139(2) of the Code, specifically:

Count 8: That on the 20 th day of February, 2017 at Marystown, Newfoundland and Labrador, did willfully attempt to obstruct the course of justice in a judicial proceeding by threatening a witness, Candace Murley, contrary to section 139(1) of the Criminal Code and punishable by section 139(2) of the Criminal Code . [ 2 ] The facts, as agreed upon by the parties and submitted to the Court, are outlined in the following paragraphs: (

a) On February 17, 2017, at approximately 2:30 p.m. Constable Green, a member of the RCMP, received information from an informant that drugs were being sold from a residence at 211 Marine Drive in Marystown, Newfoundland and Labrador. The accused, Jason Hepditch, and a Candace Murley were named and the drugs being sold were oxycodone pills. (

b) Constable Green and Staff Sargent Foote patrolled in an unmarked vehicle to the residence on Marine Drive believed to be occupied by Candace Murley. While at the residence the police officers observed a Robert McLachlan drive up to the residence, enter the residence and four minutes later depart. Green and Foote followed the vehicle and called for a marked police car to stop the vehicle being driven by McLachlan. The vehicle was stopped and the occupants arrested for possession of a controlled substance. Upon searching the vehicle, the police found three oxycodone pills and one crushed oxycodone pill on a plate. (

c) At approximately 3:30 p.m., the same date Constables Green, O'Keefe and Ouellet attended at and entered the residence at 211 Marine Drive and arrested the occupants, including Candace Murley, for possession of drugs for the purpose of trafficking. The property was secured by the police pending an application to obtain a search warrant. (

d) During the course of the relatively short investigation, Candace Murley, Robert McLachlan and a Wayne Hanrahan told the police that the accused, Jason Hepditch, had supplied the oxycodone. Candace Murley stated that she had purchased three oxycodone from Mr. Hepditch for $12.50 each and that she agreed to take and sell at least six oxycodone. Robert McLachlan admitted to buying four oxycodone for $12.50 each. Both of these individuals testified to this at a preliminary inquiry. The transactions took place on February 17, 2017. (

e) The police were advised as to the type of vehicle in which Mr. Hepditch may be travelling and at 4:16 p.m. on the date in question a vehicle was stopped in which Mr. Hepditch was a passenger and he was arrested for possession for the purpose of trafficking. At the time of his arrest Mr. Hepditch had in his possession 42 oxycodone tablets, $670.65 in cash and a small amount of marihuana. (

f) At the time of his arrest on February 17, 2017, Mr. Hepditch was bound by the three Probation Orders to keep the peace and be of good behaviour. (

g) On February 19, 2017, Mr. Hepditch and Ms. Murley were housed in the cells at the RCMP detachment at Marystown. Constable Collins and Constable Peat overheard a conversation between the two. The vein of that conversation can be capsulated as follows. Mr. Hepditch asked Ms. Murley if she was going to testify against him in court. Ms. Murley responded that she did not know. Mr. Hepditch asked her if she was going to testify that he sold drugs. Ms. Murley responded by saying that she might have to because she did not want to stay in jail. Mr. Hepditch stated that he had been good to her and Ms.

Murley acknowledged that he had been. Mr. Hepditch told Ms. Murley that someone had offered a lot of money to have her killed, but that he was never a part of that. Mr. Hepditch again asked Ms. Murley if she was going to testify against him and that there was a bank card at her residence and that she could have the $60 in the account. [ 3 ] Based upon these facts I was satisfied that the Crown had proven Mr. Hepditch’s guilt with respect to each of the counts beyond a reasonable doubt. A count of breach of section 465(1) (

c) of the Code was withdrawn subsequent to the convictions on the other eight counts. issue [ 4 ] What is an appropriate sentence to be imposed upon Mr. Hepditch? SENTENCING PARAMETERS AND PRINCIPLES [ 5 ] In arriving at an appropriate sentence, consideration must be given to the principles of sentencing set out in

section 718 of the Code : denunciation, through deterrence, both general and specific, reparation to both victim and the community, rehabilitation and the promotion of a sense of responsibility in offenders for the harm they have caused. [ 6 ] The principle of totality must also be considered to ensure that a sentence is proportionate to the gravity of the offence and degree of responsibility of the offender. Proportionality is determined both on an individual basis and by comparison with sentences imposed for similar offences under similar circumstances.

The principle of parity must also be borne in mind. [ 7 ] With respect to the drug charges, the CDSA , without restricting the generality of the Code ’s provisions on sentencing, also addresses factors to be taken into consideration. In particular,

section 10 of the CDSA states as follows: Purpose of sentencing 10

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

Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. Factors to take into consideration

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

(

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

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

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

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

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

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

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

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

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

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

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

(5) If the offender successfully completes a program under subsection (4), the court is not required to impose the minimum punishment for the offence for which the person was convicted. [ 8 ] None of the aggravating factors set out in section 10(2)(

a) are in issue with respect to the commission of the CDSA offences. It is also noted that with respect to section 10(2)(b), that while Mr. Hepditch has an extensive criminal record, he has not previously been convicted of a designated substance offence. CIRCUMSTANCES OF OFFENDER Background [ 9 ] In reaching this decision, I have considered all of Mr. Hepditch’s circumstances. He is 43 years of age and has been involved in the criminal justice system for most of his adult life.

There is little evidence before the Court as to efforts on his part to rehabilitate other than referenced in the Defence counsel’s written submission of Mr. Hepditch having reached out since 2012 to Dr. Ladha in an effort to gain insight into his issues. There was also no evidence of any supports he has in the community in terms of family which would be a positive influence towards rehabilitation.

He is unemployed and, as submitted by Defence counsel in the written submission, he has had sporadic employment over the years due to his constant involvement in the criminal justice system and his inability to manage his anger. A letter of employment was provided at the sentencing hearing from a former employer of Mr. Hepditch’s which indicated that, if he has work available, he will employ Mr. Hepditch upon his release from prison. [ 10 ] Defence counsel also submitted that Mr. Hepditch had a difficult childhood including having been abused at Mount Cashel orphanage. Mr.

Hepditch received a letter of apology with respect to this. I have taken into consideration that Mr. Hepditch appears to have been deprived of the benefit of a stable loving childhood and was the victim of abuse during his childhood. He is now, however, 43 years of age and he alone is responsible for his actions and bears the responsibility to work in a productive manner to overcome any issues that plaque him from his past. A life of crime only perpetuates the hard life that he has already endured. [ 11 ] An Assessment Report completed by Dr. Ladha dated February 27, 2017 was put before the Court.

It indicates that Mr. Hepditch has a history of psychiatric illness. He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) when he was 12 or 13 years of age. He was also admitted to the Janeway Children’s Hospital for four to six months as a child. He is on medication for ADHD but does not always take it. Dr. Ladha stated in his report that Mr. Hepditch is helped by the medication when it is taken. Otherwise, he becomes fidgety, distractible, irritable, and cannot concentrate. Dr.

Ladha wrote, “When he is off his medications he is likely to be impulsive or respond in an aggressive way, to any provocations, which he would not if he remains on his medication.” [ 12 ] There is no evidence before the Court, however, to suggest that the commission of these offences by Mr. Hepditch were due, or contributed to, by his medical condition.

While there is no evidence before me in this case which would cause me to take this condition into consideration with respect to the sentence that is to be imposed, it is a factor that should be taken into consideration in terms of any programming or treatment offered to Mr. Hepditch while incarcerated or while on probation. Criminal Record [ 13 ] I have also considered Mr.

Hepditch’s extensive criminal record in this province dating back to 1989 for offences including: 10 convictions for mischief, 1 conviction of causing a disturbance, 5 convictions for theft, 2 convictions for assault, 14 convictions for uttering threats, 1 conviction for assault with a weapon, 9 convictions for break and enter, 1 conviction for robbery while disguised, 1 conviction for public mischief, 1 conviction for fraud, 2 convictions for escaping lawful custody, 1 conviction for providing alcohol to a

minor, 1 conviction for an impaired driving charge, 24 convictions for breaching probation contrary to

section 733.1 and 15 convictionsunder section 145(3) for breaching the conditions of an undertaking or recognizance. He was also convicted in Saskatchewan in 2001 forassaulting a peace officer, mischief, failing to appear and possession of property obtained by crime. Guilty Plea [14] I have taken into account that, while not at the earliest opportunity, Mr. Hepditch has pled guilty which has saved witnessesfrom having to testify and valuable Court time and resources. Mr. Hepditch also apologized for his offences when he addressed theCourt.

ANALYSIS Counts 1, 2, 3 and 4: The CDSA breaches [15] The Crown seeks the following with respect to the four offences under the CDSA: Count 2 (Section 5(2)): 21 months’ incarceration; Count 1 (Section 5(1)): 21 months’ incarceration, concurrent to Count 2; Count 3 (Section 4(1)): 7 days’ incarceration, concurrent to Count 2; Count 4 (section 5(2)): 21 months’ incarceration, concurrent to Count 2. and submits that the 21 month sentences should be consecutive to any incarceration given to Mr.

Hepditch in relation to Counts 5, 6, 7 or8. [16] The Defence submits that a sentence of 15 months for each of the section 5(1) charges and the section 5(2) charge, to runconcurrently, would be appropriate in the circumstances. The Defence further seeks a suspended sentence with respect to the section4(1) charge. [17] To determine an appropriate sentence, I must begin with what is statutorily prescribed with respect to each of the offences forwhich Mr. Hepditch has been convicted.

The offences of trafficking in a controlled substance and possession of such substances for thepurpose of trafficking, carries a maximum punishment of life imprisonment. Section 5(3) of the CDSA sets minimum punishment ofimprisonment for a term of one year in certain circumstances, none of which are applicable to this case. [18] I have also considered the range of sentence imposed for these offences in other cases including R. v. Bearns, [1989] N.J. No.179, 77 Nfld. & P.E.I.R. 10 (Nfld.

C.A.) where the Court conducted a review of the case law up to that point in time and found a range ofsentence for possession of a controlled substance for the purpose of trafficking and for trafficking between 6 months and 36 months. That range has been reiterated in R. v. Byrne, 2009 NLCA 3 and recently in R. v. Mitchell, 2017 NLCA 26. [19] In considering a range of sentence, however, I am also guided by the words of Wagner, J. in R. v. Laccasse, 2015 SCC 64 atparagraph 60 where he noted that sentencing ranges are primarily guidelines and not hard and fast rules. [20] In R. v.

Strickland, 2010 NLTD 2, Handrigan, J. imposed a sentence of 16 months where the amount of drugs and level oftrafficking appeared to be on a higher and more sophisticated level than that of Mr. Hepditch. Mr. Strickland was found in possession of9.6 grams of cocaine, 66 ecstasy pills, 2 OxyContin pills, 18 bags of contraband tobacco, $3,100 in cash, score sheets and digital scales. Unlike Mr. Hepditch, however, Mr. Strickland was a first time offender [21] In R. v. Hillier 2016 NLCA 21, the Court of Appeal upheld a sentence imposed by the trial judge of two years imprisonmentfor trafficking in cocaine. Mr.

Hillier was a first time offender. In that case, the presence of weapons was a relevant factor on sentencingand Mr. Hillier was considered by the trial judge as being a mid-level trafficker. The presence or use of weapons is not a factor in thiscase. Furthermore, I accept Defence counsel’s characterization of Mr. Hepditch as “a low level street dealer”, and this also differentiateshis circumstances from that of Mr. Hillier. Although this is a relevant consideration on sentencing, it does not diminish the role playedby Mr. Hepditch from a societal point of view. The role of a low level street dealer is a key

part in the proliferation of these harmfuldrugs in our society, particularly in smaller communities. Mr. Hepditch, may just be a cog in the wheel but the machine of drugtrafficking could not function without the cog. Having said that, there is no evidence that Mr. Hepditch was involved in anysophisticated scheme of trafficking or that he has engaged in this activity for an extended period of time. In fact, the offences alloccurred on the same day and this is his first conviction for such offences. [22] In R. v. Woodford, (NL PC), [2013] N.J.

No. 141, 335 Nfld. & P.E.I.R 336 (NLPC), a sentence of 15months incarceration was imposed for trafficking in methylphenidate, diazepam, cocaine and methadone. The offender was relativelyyoung at 25 years of age, had a supportive family, and was addicted to prescription drugs. There is no evidence of Mr. Hepditch havingfamily support or that his crimes were motivated by any addiction issues. On the other hand, unlike Mr. Hepditch, Mr. Woodford hadprior convictions for section 4(1) CDSA offences.

[23] I have also considered the circumstances surrounding the offences for which Mr. Hepditch has been convicted including thatnone of the aggravating factors of section 10(2) of the CDSA are present in this case. There were no weapons or threat of violence usedwith respect to the commission of the drug offences. Furthermore, the transactions did not take place at or near a school and therecipients of the drugs were not under the age of 18 years. [24] Furthermore, as Defence counsel emphasized, the amount of drugs involved and the street value of the amount of drugs waslow.

Although that is a factor that I have taken into consideration, it must be borne in mind that the cost to society with respect to thetrafficking in such substances is quite high notwithstanding the dollar value of the drugs themselves. Trafficking in substances, such asoxycodone, is the root of many issues in our society today. The effects are both devastating and far-reaching. These offences ofteninvolve preying on vulnerable individuals, who often suffer from addictions. [25] In addition, the effect of the distribution of such drugs extends far beyond those who utilize the drugs.

There is no doubt thatthe utilization of such drugs can adversely affect the individual user, but they also destroy familial and other important relationships. Itis an offence that can have dire adverse effects on many segments of our society. In fact, it is difficult to conceive of a facet of societynot affected by the trafficking in such substances. As such, a message of deterrence must be sent to those who embark upon suchcriminal enterprises. [26] I have also considered the principle of parity in that co-accused Candace Murley received 12 months incarceration. The role,however, played by Ms.

Murley was much less than that of Mr. Hepditch. It could be said that Ms. Murley was the follower while Mr.Hepditch was very much the leader. In fact, Ms. Murley was one of the victims of Mr. Hepditch’s offences insofar as she is one of thepeople to whom he trafficked oxycodone. Furthermore, Ms. Murley’s convictions included one count of trafficking in a controlledsubstance (section 5(1) of the CDSA) whereas Mr. Hepditch has been convicted of two counts of breach of section 5(1). [27] Overall, having analyzed the case law with respect to sentences imposed in similar cases, having considered Mr.

Hepditch’scircumstances as well as the relevant circumstances related to these offences, I find that a sentence of 16 months incarceration isappropriate in this case. [28] With respect to Count 3, (breach of section 4(1) of the CDSA), Mr. Hepditch was found in possession of a small amount ofmarihuana. I accept Defence counsel’s submission that a suspended sentence would be appropriate in this case. Counts, 5, 6, and 7: Breaches of

Section 733.1 of the Code [29] Pursuant to

section 733.1 of the Code, breach of probation, prosecuted by indictment, carries a maximum sentence of fouryears. Mr. Hepditch has pled guilty to three counts of breach of probation in relation to three probation orders dated: October 23, 2014,June 23, 2015, and January 6, 2017. All three breaches are in relation to the CDSA offences committed on February 17, 2017. [30] Defence counsel submitted that for breaches of probation, a range of 30 days to 3 months is not uncommon and that a sentenceof 60 days or 2 months on each count to run concurrently to one another would be appropriate in this case.

The Crown submitted that asentence on the higher end of the range is warranted under the circumstances and seeks 6 months for each breach of probation, to runconcurrent to each other but consecutive to the other sentences imposed. [31] In stating its position, the Crown emphasized that Mr. Hepditch has 24 prior breaches of probation. However, it is notsufficient to simply consider the number of prior convictions for breach of probation. Rather as stated by Welsh, J. in R. v.

Murphy,2011 NLCA 16, at paragraph 26: In determining a fit sentence, several issues must be considered including the rationale for sentencing for breaches of court orders and theeffect of previous convictions. Regarding the latter, relevant considerations would include: analysis of previous sentences, ranges ofsentences, the nature of the breaches both current and past, and convictions that have resulted in multiple convictions under one order forone event or delict. [32] An analysis of Mr.

Hepditch’s 24 previous convictions for breach of probation show that these are in relation to offencesoccurring on 19 different dates over a 20 year period dating from February 5, 1997 to January 5, 2017. These breaches are in relation toa variety of offences including uttering threats, causing a disturbance, break and enter, theft, impaired driving, and assault. Mr. Hepditchwas convicted for multiple breaches of probation arising from the same incident on only four occasions. Thus, this is not a situationwhere there was a frequency of multiple convictions related to one event or occurrence. Rather Mr.

Hepditch has breached probation on19 separate occasions over the 20 year time period leading up to the current breaches. Sentences imposed on him for breach of probationhave ranged from 1 day (time served) to 6 months incarceration. [33] Mr. Hepditch has an extensive history of breaching court orders and probation orders. In fact, his last conviction for breach ofprobation occurred on January 6, 2017, just weeks before these offences occurred. That conviction appears from the record adduced intoevidence to have resulted from a conviction for having caused a disturbance on January 5, 2017. I find that Mr.

Hepditch hasdemonstrated a blatant disregard for court orders. He has 24 prior breaches of probation, 15 prior breaches of undertaking orrecognizance and was on 3 separate probation orders, 2 of which were imposed for offences that included breach of probation, at the timeof committing the current offences for which he is before the Court. As such, denunciation and specific deterrence are keyconsiderations in sentencing in those circumstances. [34] It is acknowledged that any sentence imposed for a breach of probation should not be more excessive than any sentence for anunderlying offence. (R. v.

O’Quinn, 2017 NLCA 10) I have also considered that the three breaches of probation arose out of the same setof circumstances. I am satisfied that the sentences for breach of probation should run concurrent to one another but consecutive to thesubstantive offences. [35] Breaches of probation usually result in a sentence that is to be served consecutively to a sentence for the related offence. Thisis an acknowledgement by Courts that failure to comply with court orders is a serious offence and one that cannot go unpunished. (R. v.Hennebury, (NL CA), [1996] N.J. No. 37, 138 Nfld & P.E.I.R. 56 (NLCA); R. v. Murphy).

[ 36 ] Overall, having analyzed the circumstances of the breaches in this case, and Mr. Hepditch’s prior convictions for breaches of probation and court orders, as well as Mr. Hepditch’s overall circumstances, I agree with the Crown’s submission of six months as being an appropriate sentence for each breach of probation. In adherence to the principle of totality, these sentences are to be served concurrent to each other but consecutive to the other sentences imposed.

Count 8 – Breach of section 139(1) of the Code [ 37 ] Pursuant to section 139(2) of the Code , willfully obstructing the course of justice, when prosecuted by indictment, carries a maximum penalty of 10 years. The Defence seeks a sentence of 90 days or 3 months while the Crown seeks 6 months. [ 38 ] Defence counsel submitted that a total sentence of 17 months incarceration for all offences is appropriate and that this could also be achieved by allocating a higher sentence to the substantive offences and employing principles of totality to achieve a similar result.

Overall, Defence counsel submitted that given the amount of time that Mr. Hepditch has been incarcerated, he should be sentenced to time served. [ 39 ] The case, R. v. McCarthy , 2015 NLPC 1314 A00252, provides a good

summary of the range of sentences that have been imposed for section 139(2) offences in this province. The range spans from a conditional discharge to two years in prison. [ 40 ] I have considered the submission of Defence counsel that the content of what was communicated between Mr. Hepditch and Ms. Murley could place this offence on the lower end of the range. I have also considered, however, that the circumstances of the charge in this case is based upon threatening a witness and the fact that Mr. Hepditch has an extensive history of convictions for uttering threats. I have also considered, however, that Ms.

Murley was not deterred from testifying and did so at the preliminary inquiry. I have also considered that the conversation took place within a short period of time of Mr. Hepditch’s arrest and while he was being held in custody. This demonstrates a continuing attitude of indifference, if not disdain, by Mr. Hepditch towards the justice system. I am concerned that Mr. Hepditch has a long history of disrespect towards the judicial system as demonstrated by the facts previously noted of his numerous breaches of probation, undertaking and recognizances.

Attempting to intimidate a witness is yet another example of Mr. Hepditch’s disregard for the administration of justice. [ 41 ] The importance of witnesses feeling free and unencumbered to come forward and testify cannot be overstated. It is fundamental to the administration of justice. I have considered all of the principles of sentencing, along with the circumstances of this offence and Mr. Hepditch’s overall circumstances including his significant and lengthy criminal record and in particular his history of violating court orders and breaching probation.

In the circumstances, when an offence strikes at attempting to undermine the foundation of our justice system, deterrence is key. Mr. Hepditch, and others inclined to conduct themselves in the same manner, must understand that flagrant disregard for the justice system cannot, and will not, be tolerated. As such, I agree with the Crown’s submission and sentence Mr. Hepditch to six months’ incarceration for this offence. [ 42 ] The sentence for this offence is to be served concurrent to the other offences.

I would have imposed this as a consecutive sentence, as requested by the Crown, but in applying the totality principle, it is more appropriate that this sentence be served concurrent to the other offences. DISPOSTION AND SENTENCE [ 43 ] Mr. Hepditch, please stand while I impose your sentence. You are hereby sentenced as follows: 1. With respect to Count 2 – 16 months incarceration for the 1 count of having in his possession for the purpose of trafficking, oxycodone, contrary to section 5(2) of the Controlled Drugs and Substances Act . 2.

With respect to Count 1 – 16 months incarceration for trafficking in a controlled substance contrary to section 5(1) of the Controlled Drugs and Substances Act ; this is to be served concurrent to Count 2; 3. With respect to Count 4 – 16 months incarceration for trafficking in a controlled substance contrary to section 5(1) of the Controlled Drugs and Substances Act ; this is to be served concurrent to Count 2; 4.

With respect to Count 3 – a suspended sentence with respect to the 1 count of having in your possession cannabis (marihuana) contrary to section 4(1) of the CDSA and punishable by section 4(5), to be served concurrent to Count 2. 5. With respect to Count 8, 6 months incarceration for the 1 count of willfully attempting to obstruct the course of justice contrary to section 139(1) of the Code and as set out in subsection 139(3) and punishable by section 139(2) of the Code . This is to be served concurrent to the sentences imposed for Counts 1, 2, 3 and 4. 6.

With respect to Counts, 5, 6 and 7 – 6 months incarceration for each count of failing to comply with the three probation orders. These sentences are to be served concurrent to each other but consecutive to the other sentences imposed. The total period of incarceration is 22 months.

Credit for Time on Remand [ 44 ] Mr. Hepditch has been in custody since his arrest on February 17, 2017. Up to the date of the sentencing, the parties agreed he would have served 378 days. Pursuant to section 719(3.1) of the Code I am satisfied to allow credit for pre-sentence custody at a ratio of 1:5 to 1. This results in a credit of 567 days. Fifteen days have to be deducted from this as having already been credited to Mr. Hepditch in relation to a provincial court matter. This results in 552 days to be deducted from Mr. Hepditch’s overall sentence of 22 months, which is equivalent to 660 days, Mr.

Hepditch has 108 days left to serve. Probation [ 45 ] Following your release from jail, pursuant to section 731(1) of the Code , you are to be bound by a probation order for two years subject to the statutory conditions including: 1. Keep the peace and be of good behavior. 2. Abstain for communicating directly or indirectly with Candace Murley unless she gives her consent. 3. Appear before Court when required. 4. Notify the Court or the probation officer in advance of any change in name or address and promptly notify the Court or probation officer of any change in employment. And the following conditions: 5.

Report to and be under the supervision of a probation officer to whom you are to report within two working days after the making of the probation order and thereafter, when required by the probation officer and in the manner directed by the probation officer. 6. Refrain from using, consuming, possessing or trafficking in all non-prescription drugs including all substances proscribed by the CDSA . 7. Comply with all requirements of the probation officer with respect to counseling or other rehabilitative measures deemed appropriate by the probation officer. 8.

Comply with all treatment prescribed by your doctor with respect to your diagnosis of Attention Deficit Hyperactivity Disorder. Ancillary orders [ 46 ] I further impose the following ancillary orders: 1. Pursuant to section 109(1) (

c) of the Code , I impose a firearm prohibition. This is a lifetime prohibition in the case of any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition; and it is a 10 year prohibition for other firearms, crossbows, restricted weapons, ammunition and explosive substances. 2. Pursuant to

section 487.051(3)(b), in relation to Count 2, I authorize the RCMP to take or cause to be taken from you samples of bodily substances that are reasonably required for the purposes of forensic DNA analysis provided the samples are taken by means of the investigative procedures described in subsection 487.06(1) and that the samples shall be taken not later than 10 days from today’s date. 3. A victim surcharge pursuant to section 737(2)(b)(ii), in the amount of $200 per offence is ordered and is to be paid within 30 days. 4. Pursuant to 16(1) of the CDSA , forfeiture is ordered of all items seized including the pills and cash identified in the consent exhibits. _____________________________

Sandra R. Chaytor Justice