R. v. James Date:, 2017 BCPC 137

Citation: R. v. James Date: 20170424 2017 BCPC 137 File No: 206307-2 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. JEROMEY THOMAS JAMES REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A. WOLF Counsel for the Crown: C. Stanley Counsel for the Defendant: T. Lagemaat Place of Hearing: Surrey , B.C. Date of Hearing: February 23, 2017 Date of Judgment: April 24, 2017

INTRODUCTION [ 1 ] Mr. James is charged on court file number 206307-2 with four Counts of drug offences. [ 2 ] He has pled guilty to trafficking in cocaine on July 30, 2014. As well, he has pled to being unlawfully in possession of cocaine for the purpose of trafficking, and unlawfully possessing methamphetamine for the purpose of trafficking on his arrest on August 1, 2014. [ 3 ] He pled guilty on July 4, 2016. A Pre-Sentence Report was prepared and sentencing commenced on November 25, 2016 and continued on February 23, 2017. [ 4 ] A Pre-Sentence Report was filed with the court.

CIRCUMSTANCES OF THE OFFENCE [ 5 ] On July 29, 2014, Surrey RCMP received information that Jeromey James had an active methamphetamine lab. The information received indicated that he was also described as selling crack cocaine. Undercover officers set up a buy and bought cocaine from him. On July 31, 2014, a search warrant was executed and a number of drugs were found in Mr. James’ residence. He was cooperative during the search. [ 6 ] Marijuana, a cannabis butter, and shake were located in the residence. Some unknown white pills were also located.

Some cocaine inside the fridge, as well as individually wrapped cocaine was seized. Scales and a small amount of cash were also found in the search. [ 7 ] The value of the crack cocaine was approximately $300.00. There was another $400.00 worth of methamphetamine and other drug paraphernalia. [ 8 ] In total, there was approximately 48 grams of cocaine, with a value between $3,200.00 and $4,920.00. There was 9 grams of crack cocaine valued at $940.00. Also located was approximately 7.88 grams of methamphetamine, with a value of $1,000.00. The total value of the drugs was approximately $6,820.00.

It is unclear to me whether this value includes the 202 grams of marijuana found. Approximately $2,000.00 was found in the search. The total value of drugs and cash is just short of $10,000.00. Position of the Crown [ 9 ] The Crown seeks a jail sentence, a mandatory

section 109 firearms prohibition for a period of 10 years, and a discretionary DNA Order. [ 10 ] The Crown submits that it was not technically an early guilty plea, because the matter was set down for trial. Equally, however, they concede that while it was set for trial, he did plead guilty and no trial took place, thus saving the cost of a trial. [ 11 ] The Crown tendered a Book of Authorities. Essentially, drawing on their authorities, they make the following submissions. First, they rely on R. v.

Oates , 2015 BCCA 259 , a 2015 BC Court of Appeal authority for the general proposition that, found at paragraph 19 of that case where Justice Saunders writing for the court quotes Mr. Justice Henderson from the Supreme Court of British Columbia in the R. v. Franklin case, 2001 BCSC 706 , at paragraph 45 . The exact reference is worth repeating. [19] It may be useful at this juncture to remember how the jurisprudence in respect to dial-a-dope trafficking developed.

In what is often taken as the most succinct description of the reason general deterrence generally plays such a high role in determining an appropriate sentence for dial-a-dope trafficking in hard drugs. Mr. Justice Henderson said in R. v. Franklin , 2001 BCSC 706 : [45] On the other hand, it must be said that the Lower Mainland of British Columbia is overrun with cocaine and heroin. Those who are willing to disseminate drugs through the community by Dial-A-Dope operations are responsible for the ready availability of these drugs. People such as Mr.

Franklin, who engage in Dial-A-Dope operations, are lured into them by the high profits available with little effort. It is easy money. [46] The destructive potential of these drugs is so well known as not to require comment. [47] It is my view that this is the sort of offence where general deterrence has an impact. One does not enter into a Dial-A-Dope operation impulsively or spontaneously. It is necessary to obtain a supplier, to outfit oneself with a pager and a cell phone and a vehicle, and to make sure the word gets around. It is a calculated decision to engage in a particular type of business.

It is reasonable to think that those who are considering that decision will take into account the likely penalty they would receive upon conviction. In other words, general deterrence is a genuine consideration in cases of this sort. [48] It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs.

When I weigh the need for general and specific deterrence, the need to protect the public, the need to rehabilitate this offender, and the need to denounce his conduct; and when I take into account the injunction in the Criminal Code that incarceration should not be imposed unless and until all other alternate forms of sentencing have been considered, I find myself of the view that a term of true imprisonment is necessary in this case. [ 12 ] R. v. Voong , 2015 BCCA 285 , is a June 25, 2015 decision of the BC Court of Appeal. At paragraph 59 the court writes: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for

the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence.

However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 13 ] The Crown argues that R. v. Gillespie , 2015 BCCA 290 , from the BC Court of Appeal, is a case that illustrates that even when a person is remorseful and they have turned their life around, a jail sentence is still often warranted.

In that case, there was no issue that the offender was remorseful and had taken steps towards rehabilitation. [ 14 ] To sum up the Crown’s submissions, they submit that denunciation and deterrence are the primary principles that I should consider. The Crown recognizes that sentencing is an individualized process and that, in some cases, rehabilitative steps taken might be so exceptional as to take a sentence out of the range of 12 to 18 months. They further recognize that this dial-a-dope operation would be what can be considered a low level trafficking operation.

If I understand their submission, they acknowledge that significant steps have been taken. They recognize that Mr. James is youthful, has no record and has been completely candid with the officers. For example, he readily pointed the officers to where the narcotics were when he was arrested. If I further understand their submission, taking into account these factors they point to the high degree of culpability and the fact that Mr. James was arrested with what the Crown called ‘just short of $7,000.00’ value of a variety of drugs.

If I recall correctly, the exact amount he was found to be in possession of was $6,820.00, as well as about $2,000.00 in cash. Position of the Defence [ 15 ] The defence strongly submitted that this case is unusual – so unusual as to warrant the imposition of a suspended sentence. [ 16 ] The defence submits that Mr. James has pled guilty, provided a full statement at the beginning, and was cooperative and lead them to the drugs.

It is submitted that he has no criminal record, was selling to feed an addiction, and was not leading a lavish lifestyle. [ 17 ] Most importantly perhaps, the defence argues that he is fully employed and to use his words “turned a huge corner.” [ 18 ] By way of background, Mr. James is 27 years old, comes from a very large supportive family and has skills. He has goals. [ 19 ] In April 2015, I am told that he was fully employed until an injury caused him to take time off. He was prescribed opiates and became addicted to them.

It was this addiction, as well as a lack of employment, that made him start to deal drugs. The Pre-Sentence Report seems to confirm that his actions were only meant to feed his addiction. [ 20 ] Mr. James says he is deeply remorseful, truly ashamed, and that his eyes have been opened. He is now off of drugs. He is now a father. He tells me that hearing the words “I am pregnant” changed his life forever. He says the birth of his son has changed his life forever. He understands the harm he has done to the community. He hopes, as time goes on, to start up a business with his brother.

LETTERS OF SUPPORT [ 21 ] His brother confirms that the accused has always wanted to be a dad. He confirms that being a father has given him new reasons to be a better person. Another friend of his family describes him as a capable and helpful person, helping his community in fundraisers. [ 22 ] His mother writes that she does not want to see him go ‘backwards,’ pointing out that at the time of the offence he was in an unhealthy relationship and now is doing very well. She made some comments regarding Mr. James’ previous girlfriend in her letter.

She commented on ‘how fake she was, right down to her $8,000.00 breast implants.’ That relationship may have been poison to Mr. James, as his mother points out. However, it is her son that is before the courts, not his ex-girlfriend. [ 23 ] He is working and is described as a dependable, hardworking employee. His new partner in life and mother of his child describes him as honest and hardworking. [ 24 ] It seems obvious by all accounts that he has a family and friends, and they are supportive. THE PRE-SENTENCE REPORT (PSR) [ 25 ] The Pre-Sentence Report shows a fairly transient lifestyle. Between 12 to 16, Mr.

James was involved with a gang, but was able to break free from that group of individuals by paying monies to them. [ 26 ] He has a child with Ms. Vinish.

They have lived together for about two years. [ 27 ] As for education and employment, he has completed his program for heavy equipment in 2015 and hopes to start a business with his brother. [ 28 ] The report confirms that “the index offences mark the Subject’s first involvement in the criminal justice system and states this offence is the worst thing he has done in his life but realizes now that his drug use and choice of friends were not positive for him.” The Passing of Time [ 29 ] It is submitted on Mr.

James’ behalf that it has been 2½ years since the time of the offence and he has been doing very well. [ 30 ] I agree. He is doing well. It has been over two years.

[ 31 ] However, this delay was at least caused partially by a decision to have the matter set down for trial. I do not wish to fault Mr. James for his decision. He is certainly entitled to a fair trial. I also understand that sometimes things are set for trial in order to give an accused the chance to change their life’s circumstances. I am very happy that he has done well during this time period. Many people do not. Miscellaneous Authorities [ 32 ] There is no shortage of guiding authorities from the British Columbia Court of Appeal. [ 33 ] R. v.

Tran , 2007 BCCA 613 , is a case where the 28-year old accused was not an addict. He had no record and was involved in the drug trade for financial gain. The court upheld the sentence of nine months custody. [ 34 ] R. v. Ladret , 2012 BCCA 401 , is a case where the 42-year old accused, with a related drug record, unemployed with a significant drug problem, received a sentence of eight months custody. [ 35 ] From the Provincial Court of British Columbia, R. v. Krause , 2015 BCPC 305 , is a case where The Honourable Judge Sudeyko considers the issue that I am being asked to consider.

At paragraph 7, Judge Sudeyko asks: Do the circumstances of this offence and this offender, when applying and balancing the appropriate sentencing purposes, principles and objectives support a non-custodial sentence? [ 36 ] In Krause , at paragraph 6 , the defendant pointed to: … an accumulation of factors, including his previous clean criminal record and good character, his remorse and relatively early guilty plea, his youthfulness, his strong employment record, and his current employment and positive family circumstances.

In addition, the Defendant emphasizes that he made a moral decision to end his involvement in the drug trade and cut his ties with that world, before he was arrested. [ 37 ] I found the analysis of Judge Sudeyko particularly useful and I rely on the ‘legal analysis setting out the purpose, principles and objectives of sentencing’ found in paragraphs 16 to 23 of that decision. [ 38 ] While not conceded by defence counsel in that case, I believe the authorities ask me to consider whether there are exceptional circumstances. [ 39 ] Essentially the Crown takes the same position as the Crown Counsel in R. v.

Orr and Lai , a decision of the Honourable Judge Rideout found at 2015 BCPC 206 . In that case, as in this case, “Crown Counsel submitted that there were no circumstances that would be described as exceptional circumstances that would take the sentencing range out of the six to nine month custodial range suggested by our Court of Appeal.” [ 40 ] In both Krause and Orr and Lai , neither accused had a criminal record and both were considered to be of good character. In the Orr and Lai case, Mr.

Orr’s offending behaviour was found to be in part as a result “of his negative peer associations, lack of insight and poor decision making skills.” In most of the cases tendered to me for consideration, each of the accused was young and well on their path to rehabilitation. Clearly Mr. James is doing very well.

As well, his decision was a poor one and driven somewhat by his own unique personal circumstances. [ 41 ] Rather than trying to reinvent a better explanation as to what exceptional circumstances are or, as the case law tendered by the Crown shows, what they are not, I will rely further on Krause wherein at paragraphs 32 to 35 the sentencing Judge, in my view, perfectly captures the law as founded in R. v.

Voong , supra , a 2015 British Columbia Court of Appeal case. [ 42 ] At paragraph 32 of Krause , quoting from Voong , Judge Sudeyko writes: [32] After confirming the usual range of sentence, Madame Justice Bennett turns to the issue of “exceptional circumstances: [45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. ….. [59] Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was better served by a non-custodial sentence. However, Parliament while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus it will be the rare case where the standard of exceptional circumstances is met.

Greed, Addiction or Other Reason for Offending Behaviour? [ 43 ] I have been offered mixed explanations as to why Mr. James became a drug dealer. He had some income, but was having problems paying for an addiction to prescription drugs and other household expenses, such as rent. So, on the one hand he was a drug dealer because he needed to pay for his addiction. On the other hand, he sold drugs to make money. It is true he was not leading a lavish lifestyle, however, ultimately in my view he was simply taking an illegal short cut to make money. Alternatives to a Six- to Nine-Month Period of Custody

[ 44 ] Well founded in the law, a Judge should never impose a prison sentence unless it is unavoidable. [ 45 ]

Section 718.2 (

e) of the Criminal Code is often referred to when the accused is an Aboriginal offender. I have heard it regularly referred to as the ‘Aboriginal Sentencing Provision’.

However, I remind myself of the wording of the section: all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders , with particular attention to the circumstances of aboriginal offenders. [emphasis added] [ 46 ] I have considered the authorities provided to me where suspended sentences have been imposed for dial-a-dope trafficking offences. [ 47 ] I accept the guidance of the authorities that hold a 6 to 9 month period of jail is the appropriate range, to be adjusted according to aggravating or mitigating factors.

As well, I recognize that there are many cases which are described to have exceptional circumstances where suspended sentences have been imposed. [ 48 ] I do not wish to repeat the mitigating factors. However, I believe starting a healthy relationship with a life partner and having a child in between the offence date and sentencing date is a ‘life changer.’ I am told that he wants to be a good father. [ 49 ] After weighing the competing sentencing principles, I do not believe that the circumstances of this offender justify a finding of exceptional circumstances.

He did not cease his illegal drug trade until arrested. It is true that after his arrest he has become a father. I do not believe this act in itself mitigates against the crime he has committed. He made a choice to be a drug dealer. He chose to take a short cut by breaking the law. He had cocaine, crack, methamphetamine, scales, and an active dial-a-dope business. [ 50 ] Relying on

Section 10 of the Controlled Drugs and Substances Act which states that the fundamental purpose of any sentence for an offence under the Act 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. [ 51 ] Further, relying on

Section 718 of the Criminal Code which states: The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [ 52 ] Finally, after having taken into consideration all the circumstances of Mr. James, both mitigating and aggravating, I find that an appropriate sentence of six months in custody is the appropriate sentence in this case. [ 53 ] While I recognize that a suspended sentence is open for me to impose, I find that Mr. James did not leave the drug trade prior to arrest. He was dealing drugs to feed a habit, but a habit that he could not support with his income.

In other words, he had nearly $7,000.00 worth of drugs in his possession, along with nearly $2,000.00 cash, in hopes to use the drugs and money to make money. He really was involved with the drug trade to make a profit. While this is his first time before the court, he was old enough to make a different choice. When he trafficked in hard drugs he did so by choice. It is an understatement that his choice was a bad one. Equally, I believe he should be credited with making good choices since the time of the offence.

His good choices are the reasons I consider a twelve-month sentence too high. [ 54 ] Sir, please stand up. You are sentenced to six months imprisonment for these drug offences. [ 55 ] I have considered the imposition of probation but I will not impose any. You are doing well and I do not believe having you bound by a year or two-year probation order will provide you with any assistance. [ 56 ] There will be a mandatory firearms prohibition for a period of 10 years. [ 57 ] There will be an order that he provide his DNA. [ 58 ] There is also a victim fine surcharge payable within 60 days. The Honourable Judge A.

Wolf Provincial Court of British Columbia