R. v. Forrest, 2011 NSPC 71

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Forrest, 2011 NSPC 71 Date: 20110714 Docket: 2149000, 2219794 2219799, 2219801 2224241, 2228428 Registry: Sydney Between: Her Majesty the Queen Plaintiff -and- Glenn Kenneth Forrest Defendant DECISION Editorial Notice An address has been removed from this electronic version of the judgment. Judge: The Honourable Judge Jean M. Whalen, J.P.C. Heard: July 14, 2011 Charges: Sections 4(4)(a), 5(1)x2, 4(1), of Controlled Drugs and Subtances Act Sections 145(5.1) x 2 Criminal Code

Counsel: David Iannetti, for the Crown Cheryl Morrison, for the Defence Introduction [ 1 .] This is the sentencing of Mr. Glenn Forrest. Facts [ 2 .] On January 29 th , 2010 a search warrant was used to search Mr. Forrest’s home. There were three people present. They, along with the defendant, were arrested. Mr. Forrest was searched. Money and ziplock bag with 21.7 grams of marijuana were found on his person, in the piano there was 28.6 grams of marijuana, for a total of 49.39 grams. There was no dispute with the facts. [ 3 .] Mr.

Forrest pled to possession by indictment and he was released on an undertaking. [ 4 .] Another Information was amended to read between dates of August 1 st to the 4 th . The defendant pled guilty on August 2 nd the police undercover operation went to Mr. Forrest’s home for marijuana. He told the undercover officers that he was all out and he told them to drive him to Sydney Mines. Mr. Forrest went into a house in Sydney Mines and came back out and they all returned to Mr. Forrest’s house. Mr. Forrest took a plastic bag from his pocket containing two ounces of marijuana. Mr.

Forrest used the scale and weighed 7.5 grams and received $60. [ 5 .] Mr. Forrest propositioned the undercover cadets to sell marijuana for him. They declined. [ 6 .] There is no dispute with these facts. [ 7 .] On August 3 rd Mr. Forrest called the undercover cadets and asked them to drive him to Sydney Mines. There were two people on the steps when they pulled up to the house. Mr. Forrest went in the house and when he came back to the car he told the cadets that the neighbouring house also sold marijuana. [ 8 .] They drove back to Mr.

Forrest’s house, he weighed out 8.5 grams of marijuana, an extra 1.5 was for driving him, and he got $60. [ 9 .] Once again Mr. Forrest propositioned the undercover cadets to sell for him. They declined. [ 10 .] Mr. Forrest did dispute by saying he told the cadets he would not be doing this all the time for them. Although I would note that he called them – they did not call him on this second occasion. [ 11 .] On August 19 th the cadets went to Mr. Forrest’s house. Again he used the scale to weigh out four grams of marijuana, and they paid him $40. There is no dispute with the facts.

This transaction resulted in a breach of a court order with respect to abstention from drugs. [ 12 .] On September 3 rd at 8:40 in the morning Mr. Forrest was being put in the Sheriff’s van when a Deputy noticed a green substance in Mr. Forrest’s buttocks. Upon being searched, there was a bag of marijuana containing 18 grams. When questioned whether or not he disputed those facts, Mr. Forrest said he did not dispute it but that he had drugs when he was arrested and did not want to give it to the authorities because he knew he would be charged. This resulted in a breach of a court order. [ 13 .] Mr.

Forrest does have a related record including a Controlled Drugs and Substances Act matter on the 28 th of January, 2011, a possession charge for which he received a fine; a breathalyser on the 9 th of April, 2001 and received what appears to be a conditional sentence; and driving while disqualified on the 6 th of June, 1989 for which he received a fine. [ 14 .] The mitigating factors: Mr. Forrest has pled guilty. The aggravating factors are: (1) his related record, in particular January 29 th , 2010 there was a significant amount of marijuana found in his possession;

(2) These were cold calls made to his house by complete strangers;

(3) He solicited the cadets to sell for him and proposed this to them on two separate occasions;

(4) He was awaiting sentencing on a possession matter when he committed further trafficking offences, and thus breaching court orders;

(5) On the last possession case when the marijuana was discovered by the Deputy, he would have gotten those drugs into the correctional facility had he not been caught. [ 15 .] The presentence report indicates that Mr. Forrest is 58 years of age and had a positive upbringing. He is in a long term relationship and has three adult children. Family members indicate that Mr. Forrest does have issues with alcohol and marijuana.

The defendant does have a history of gainful employment but has been unemployed since 2006 due to a disability. [ 16 .] The report indicates that the defendant suffers from numerous health related issues, including chronic pain and hepatitis C. Dr. Wawar says Mr. Forrest’s issues are self inflicted due to alcohol abuse. The court was supplied with a letter from Dr. Wawar citing all of the defendant’s medical issues.

[ 17 .] Mr. Forrest, at the time of writing the presentence report, said he would be willing to accept the help of an addictions therapist, which he has never done before. In submission counsel said he made some inquiries for addictions services, however, the court has not been supplied with any information regarding those inquiries. [ 18 .] The Crown is suggesting a custodial term of 12 months custody to be served by way of a conditional sentence, suggesting that this may be a case of extraordinary circumstances as it does not fall within Knickle . Defence agrees that it is not Knickle .

Defence wants less than a two year sentence and suggests that the court can protect the community with strict conditions. [ 19 .] The first part of the test is whether or not incarceration is appropriate in the circumstance, and if so, would it be two years less a day, which would make Mr. Forrest eligible. There is no minimum term required. [ 20 .] The second part of the test is whether the court is satisfied that serving a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in

Section 718 and 718.2 of the Code . [ 21 .] So the essence of a conditional sentence is that the offender who would otherwise serve up to two years in prison may instead remain in the community for the entire duration of the sentence, provided that he or she abides by the conditions of a conditional sentence order. [ 22 .] The safety of the community is primary and only if the court is satisfied that the safety of the community would not be endangered by a conditional sentence are the other fundamental purposes and principles of sentencing to be considered.

The issue of safety is confined to concerns that are specific to the offender and general deterrence must not be considered as a factor in determining safety. [ 23 .] In order to determine whether the safety of the community would be placed at risk by a conditional sentence, the court must consider the risk that bound by conditions and given supervision the offender would reoffend and the amount of harm, both physical or psychological and economic that is likely to occur if the risk accrues. If the court determines there is a real risk of reoffending, then a conditional sentence cannot be imposed.

And even when the risk of recidivism is minimal, a small risk of a very harmful offence would preclude a conditional sentence. [ 24 .] With respect to the first question, is jail an appropriate sentence, the answer would be yes given the circumstances and nature of the offences, particularly trafficking and breaches of the court orders. [ 25 .] Should it be less than two years. The court would say yes given the facts of the offences and Mr. Forrest’s limited record. Therefore Mr.

Forrest is eligible to be considered for a conditional sentence order. [ 26 .] The second part of the test concerns the safety of the community and the risk of the defendant reoffending. [ 27 .] Mr. Forrest is a lifetime abuser of drugs and alcohol. He has not taken or received any counselling for his addictions from Addictions Services. While awaiting sentence on a possession charge Mr. Forrest committed these offences for which he is now being sentenced. He is not involved in any community activities. On two occasions he made gestures to try to get the undercover officers to sell for him. Mr.

Forrest had drugs in his possession when in custody of sheriffs. Given the above, I am satisfied that there is a risk that the defendant would reoffend, therefore I am not prepared to grant a conditional sentence. [ 28 .] Given Mr. Forrest’s circumstances and the principles of sentencing, particularly denunciation and deterrence, a short sharp period of custody is appropriate in this case. As I said earlier, the defendant trafficked while awaiting sentence on a possession charge, he tried to recruit undercover officers to sell for him, and he had drugs concealed on him while in custody of the sheriffs and Mr.

Forrest had no intention of telling anybody because he wanted to avoid being charged. [ 29 .] Therefore, the disposition of this court will be as follows: On the first offence, January 29, 2010, there will be 90 days in jail; August 1 st to 4 th offence, there will be 90 days concurrent; August 19 th offence there will be 90 days concurrent; and for the September 3 rd offence there will be 90 days concurrent, for a total of 90 days to be followed by a period of probation for 12 months with the standard conditions.

He will report to North Sydney Probation office on or before 4:30 PM on July 18, 2011, and thereafter as he directed by probation services. He will attend for counselling for alcohol and drugs. He will abstain from the consumption of alcohol and drugs. He will observe a curfew between 6:00 PM and 6:00 AM. And he will have no contact with anybody who has a record under the Criminal Code , the Controlled Drugs and Substances Act, or the Youth Criminal Justice Act except members of his immediate family. [ 30 .] Mr. Forrest will serve his 90 days in custody on an intermittent basis.

It will begin this Friday, July 15 th at 6:00 PM until Monday at 6:00 AM, and he will report every weekend thereafter until the sentence is served. While he is serving the intermittent he will be on probation and after that intermittent sentence he will serve a period of probation of 12 months. He must have a positive residence requirement, his address is [ editorial notice - address removed].

He will: - keep the peace and be of good behaviour, - appear before the court when required to do so, - notify the court, probation officer or supervisor in advance of any change of name, address, employment or occupation, - he shall observe to a curfew at that residence between the hours of 6:00 PM and 6:00 am during the period he is serving his intermittent sentence and for the period of 12 months probation, - he shall abstain from consumption and possession of drugs and alcohol,

- he shall attend for counselling, - no contact with persons with a record under the Criminal Code , the Controlled Drugs and Substances Act or the Youth Criminal Justice Act , and - remain in Nova Scotia except with permission of his supervisor. [ 31 .] There will be no victim fine surcharge. Forefeiture of items seized, a 10 year firearms prohibition and a DNA order were imposed by this court on July 7, 2011. The Honourable Judge Jean M. Whalen, J.P.C.