R. v. Samms Date:, 2017 BCPC 90

Citation: R. v. Samms Date: 20170105 2017 BCPC 90 File No: 213691-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. MATTHEW SAMMS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G.S. GILL Counsel for the Crown: Federal Crown L. Jomori Counsel for the Defendant: B. Jessop Place of Hearing: Surrey , B.C. Date of Hearing: January 5, 2017 Date of Judgment: January 5, 2017

[ 1 ] THE COURT: Before the court is Mr. Matthew Samms. He has pled guilty to the offence of unlawful trafficking in a controlled substance, to wit the drug cocaine, which is an offence contrary to s. 5(1) of the Controlled Drugs and Substances Act . [ 2 ] The circumstances of the offence are that Mr. Samms participated in a methodology to sell drugs through the use of a cell phone. It would appear the phone has been in use for some time prior to his involvement. Most likely he was given the phone by someone to use to facilitate these transactions.

The offence to which he has pled guilty is based on a single transaction involving his sale of, I am told, 0.4 grams of cocaine to an undercover officer, which he then delivered to the officer on a bicycle in exchange for $40. Those are the circumstances of the offence. [ 3 ] In terms of the circumstances of the offender, Mr. Samms is 21 years old and therefore still quite youthful. If things go well for him, it could probably be reliably said he has only lived out maybe a fifth of his life, if he lives to be a hundred; at least a quarter. [ 4 ] The way he got into this is kind of unfortunate for him.

It does not put him in a very good light because he has a prior record that includes a conviction for trafficking in a controlled substance. He received a fairly lenient sentence at that time, consisting of an order of probation. One would have hoped that that would have been a good lesson for him to mend his ways, but he continued in his criminal lifestyle and was later convicted of possessing a loaded or unloaded restricted firearm, for which he received a nine-month jail sentence. That was a big step up for him. [ 5 ] Then in April of 2016 he is sentenced for what appears to be a fairly serious robbery.

Judging by the earlier Pre-sentence Report I have read with respect to that matter that I was provided, it looks like there was some violence involved, actual violence. He received a 22-month jail sentence, for which he is now serving.

In fact, it was while that charge was outstanding and while on probation for his earlier convictions that he committed this offence. [ 6 ] So he has a robbery charge that he knows he is going to trial on, he is on probation already, and a friend says, "Hey, you want to help me sell some drugs?" And he goes, "Yeah, sure." Not very smart and not someone who, it seems to me, has learned anything. [ 7 ] Yes, he is very young, only 21 years old, and maybe that has something to do with his very poor judgment.

But unless he mends his ways very quickly, I really worry about the other four-fifths of his life, if it is that long. [ 8 ] He has a supportive family. They are here today. That bodes well for him. He has pled guilty to this offence. He has indicated he is remorseful, and I accept that. Almost everyone is remorseful after the fact. [ 9 ] The real question is whether that remorse is sufficiently genuine to guide your future activities so that you do not commit further offences. That is true remorse.

"I'm sorry I got caught," is not true remorse. [ 10 ] He has indicated a desire to improve himself through the completion of a number of courses while in custody. That is good to see - a number of vocational training courses that he has successfully completed. He has asked and has been placed into protective custody to remove himself from negative peer influences while in a custodial setting. That is a positive thing. [ 11 ] He also, I am told, has an Aboriginal background that I should take into consideration with respect to determining his sentence in accordance with s. 718.2 (

e) of the Criminal Code and the case of R. v. Gladue. His mother, I am told, is of Aboriginal heritage. She raised him.

This is something that he has not pursued very much, but, I think it is fair to say, may be developing an interest in. [ 12 ] While there seems very little evidence of any particular factors of the type that Gladue seeks to correct, experienced directly by this offender, I think it does go beyond that in the sense that Gladue also requires sentencing to be addressed from a systemic perspective, including recognition of over-representation of Aboriginal people in the criminal justice system. [ 13 ] Even though it may seem odd to consider Gladue factors for an offender who himself seems to at least currently be downplaying any specific interest in, I think it is still important to recognize them from a broader societal relevance in the Aboriginal framework, and as well to recognize at least initially the interest that he seems to be taking in possibly further exploring his Aboriginal ancestry.

It is my hope that he continues in those pursuits and that they may as well be for him a gateway to a better understanding of who he is and who he can be. [ 14 ] The question then comes to what would be a fit sentence. The operation itself is one that I have described and one that I think can be fairly characterized as -- well, all dial-a-dope operations are insidious in the sense that they are invisible, facilitated by technology and very difficult to detect. This one, it seems to me, is one that has not been demonstrated to be part of any particularly large or interconnected network.

It appears to involve a single phone that has been in use for some time before this offender came to use it. The amount purchased is a single transaction in a fairly small amount, delivered on a bicycle. So it would be in my view, not necessarily the most sophisticated or worst of the dial-a-dope type operations that are from time to time seen. [ 15 ] That is the nature of the offence and the circumstances of the offender. The Crown suggests a sentence of nine to 12 months consecutive to that which he is currently serving. Mr.

Samms' counsel points out authorities that reflect a sentencing range something less than that, starting as low as six months and suggests that the court consider a sentence in that range, or at least at the lower end of the Crown range. [ 16 ] I think having regard to all of the circumstances, including Mr.

Samms' relative youth, the nature of the operation, of the dial-a- dope itself, the amount involved, and his prospects for rehabilitation, as well as considering his Aboriginal ancestry, those factors I think taken together suggest that I should consider a sentence at the lower end of the range of sentencing, but at the level I think that would still need to reflect the necessary denunciation and specific deterrence to this man.

So on the one hand, I think he needs to be assisted and shown the way forward, but on the other hand, to understand that there is always a price to pay and that this is a second time. [ 17 ] It seems to me that a fair sentence, reflecting all of those considerations as I have already said, would be at the lower end of the

range.

Whether it should be below the range sought by Crown I think is a matter of some debate; perhaps a further reduction having regard to his youth, the efforts that he has made hopefully will assist him to understand that there is only so many chances you are going to get in life, young man. [ 18 ] The sentence I impose is eight months' incarceration consecutive to the term he is serving. [ 19 ] There will be an order forfeiting the additional funds, I gather that is not contested; $35 in addition to that which was involved in the offence, and the cell phone that was used in the commission of the offence. [ 20 ] I confirm the order pursuant to s. 109 of the Code prescribing a lifetime prohibition of the items set forth in that section. [ 21 ] As well, I make an order pursuant to s. 487.051 that he provide such samples as are suitable for an analysis of his DNA. [ 22 ] I think that's everything. [ 23 ] MR.

JESSOP: I think there's the matter of the victim fine surcharge. [ 24 ] THE COURT: Right. I doubt he can pay in any way, so what I will do is direct that it be payable forthwith and that the time in default be deemed served concurrent to the sentence that I have imposed. [ 25 ] MR. JESSOP: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)