R. v. Gregson, 2018 BCPC 307

Citation: R. v. Gregson 2018 BCPC 307 Date: 20180910 File No: 219262-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. SETH PETER GREGSON ORAL REASONS FOR SENTENCE OF HONOURABLE JUDGE P. BOND Federal Crown Counsel J. Rutherford Counsel for the Accused: S. Hutchison Place of Hearing: Surrey , B.C. Date of Hearing: July 13, 2018 Date of Sentence: September 10, 2018

[1] Mr. Gregson is before the court on Information 219262-1, having pled guilty to two counts of trafficking in cocaine on April8th and April 21st, 2016. [2] The circumstances of the offences are that the Langley RCMP drug

section was investigating an identified dial-a-dope lineoperating in Langley. In the course of that investigation, an undercover officer called the line on the dates in question and spoke to"Dave", to arrange to purchase cocaine. The undercover officer met with Dave and exchanged cash for the cocaine. The person, Dave,who sold the drugs is Mr. Gregson. [3] The Crown is seeking a sentence of 12 months which would be the first jail sentence for Mr.

Gregson. [4] Defence counsel submits that a suspended sentence or at most an intermittent sentence of 90 days should be imposed, togetherwith a lengthy probation order including strict terms such as a curfew and community work service. [5] The crux of this decision comes down to whether Mr. Gregson's circumstances amount to exceptional circumstances as definedin R. v. Voong, 2015 BCCA 285 , 2015 BCJ No 1335, and the series of cases that follow that decision. Crown takes theposition that they do not.

Defence counsel argues, in essence, that the term exceptional should be interpreted broadly. [6] A Pre-Sentence Report has been prepared on Mr. Gregson. Crown describes it as lacklustre at best. Defence agrees that that isnot an inaccurate description. [7] The report details that Mr. Gregson has suffered from drug abuse issues for many years now. He is 38 years of age and grewup in a good family home in Richmond, B.C.

He suffered some significant bullying in high school and has struggled tremendously withloss as four close friends and family members have died over the years, including a younger sister and his mentor. However, whenreferred to a counsellor, he struggled to follow through by attending sessions in person and by telephone. [8] Mr. Gregson misused first prescription drugs, then illicit drugs since 1999, graduating to opiates and heroin since 2013. Hereported he is on eight milligrams per day of Suboxone.

The P.S.R. writer encouraged him to bring confirmation of attendance at theBusby Clinic and his progress to court for a sentencing, however he did not. [9] Mr. Gregson's counsel says he attended King Haven at some time but completed only 38 days of the 60-day program. He sayshe then transitioned to second-stage recovery for five or six months and was given a level of responsibility by the time he left. I am notclear on when this was as it was not mentioned in the Pre-Sentence Report and certainly did not occur since it was prepared. [10] Mr.

Gregson was found to have overdosed in the washroom of a Walmart, or had used drugs in the washroom of a Walmart,three weeks or so after the Pre-Sentence Report was completed on June 14th, 2018. [11] Mr. Gregson has a prior conviction for production of a controlled substance in April 2008 for which he received a conditionalsentence of 18 months. [12] He was living with his parents and working with his father 20 hours per week at the time of the Pre-Sentence Report. [13] The Pre-Sentence Report writer notes that Mr.

Gregson views himself and his family to be the primary victims of his crime,although: With greater exploration, he agrees his behaviour impacts more than just himself and his immediate network of associates and family. [14] Mr. Gregson himself told the court that he is really sorry. He said he is aware of how destructive his actions have been tohimself and his family, as well as the community. He said that since he found out he will be a father, he has changed his life as he wantsto be a dad like his father was to him.

His girlfriend is apparently due sometime early next year. [15] Crown counsel relies on the circumstances of Mr. Gregson's arrest as aggravating. The police seized from Mr. Gregson's hotelroom, $105 plus .16 gram of a combination of heroin and fentanyl from his pants pocket. The room also had a box of sandwich bagswith the corner cut from the baggies, two phones and a small Ziploc with .5 grams of heroin and a further .1 gram of heroin in a bag. [16] To give further context to the situation, Crown pointed out that the police seized 42.45 grams of heroin and fentanyl from thehome of the person Mr.

Gregson was with during the buys. Mr. Gregson's own actions and the material found in his room suggest thiswas a classic dial-a-dope operation. That conclusion is supported by the results of the search of the home of Mr. Gregson's associate. [17] The mitigating circumstance is Mr. Gregson's guilty plea. I am also taking into consideration the fact that Mr. Gregson washimself an addict and not merely participating in this activity for profit, but to support his own addiction. [18] Crown counsel relied on R. v.

Oates, 2015 BCJ No 1177, for the proposition that dial-a-dope operations are sophisticated high-profit enterprises in which drugs are sold in circumstances that are difficult to detect. The destructive effects of these drugs are well-known. Given that this is not an impulsive or spontaneous act, but rather a calculated and organized activity, Crown submits it should betreated more seriously than a mere trafficking charge and general deterrence should be given significant weight. [19] The range for a first-time offender in a dial-a-dope trafficking case has been established at six to 18 months.

Crown submitsthat a penalty of 12 months is appropriate in this case given the following, Mr. Gregson's age; the fact this is not a first offence; the factthat he has not followed through with the counselling to address the issues underlying his addiction nor with the programmingrecommended by his probation officer; Mr. Gregson was still using as late as June 14th, 2018, when he was apparently using in thewashroom of a Walmart Store. [20] The type of circumstance that permit an exception to the standard range of sentencing has been clearly set out by the court in R.v. Voong, and the cases that follow it.

They include the following: a lack of 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 offence as opposed to the harm done to the offender as a result of being caught. This is not an exhaustive list and the courts have certainly interpreted the term “exceptional”, broadly. [ 21 ] In this case, Mr. Gregson's counsel asked me to consider the following factors as demonstrating exceptional circumstances. [ 22 ] Firstly, the steps Mr.

Gregson has taken towards obtaining treatment, including: • taking Suboxone and attending some treatment in the past; • drug addiction is a disease and relapses are common; • he has moved to live with his parents since October 2017; • he has maintained employment with his father 20 hours per week; • and I am told today he has now obtained a new position in a plumbing company. • he has the support of his parents and his girlfriend, as evidenced by his mother's letter, which I note simply and briefly details that he works at Bar Fly Sales and his job is to clean, sanitize and repair the draft system and glass washers in pubs in Chilliwack, Abbotsford, Langley and Vancouver, and that he has participated in the installation and removal of draft systems for different pubs; • Finally, the fact that Mr.

Gregson is remorseful as I have noted above. [ 23 ] Unfortunately, I find that Mr. Gregson has not been able to demonstrate any significant or objectively identifiable steps towards rehabilitation. In Voong , the court says there must be something that would lead a sentencing judge to conclude that the offender has truly turned his or her life around and that the protection of the public was subsequently better-served by a non-custodial sentence. [ 24 ] At best, Mr.

Gregson's comments indicate an aspiration to be clean and free of drugs, but it is evident that he relapsed after his attendance at treatment facilities and was using as recently as June 2018, after the Pre-Sentence Report was prepared. [ 25 ] At this point, I do not have any objective evidence before me to confirm that Mr. Gregson is well on his way to dealing effectively with his drug addiction. I find that Mr. Gregson's circumstances do not qualify as exceptional and I find I cannot consider a suspended sentence in these circumstances. This is particularly in light of the fact that Mr.

Gregson received a conditional sentence order on his first offence, which was a production charge. [ 26 ] I find, as well, that the circumstances of the offence and of Mr. Gregson do not place him in the lowest range of sentencing defined in R. v. Oates . Nonetheless, given that he has some external motivation to inspire him to turn his life around at this time, I am hopeful that a total sentence of nine months will give him the time to consider his next steps towards becoming the parent that his child deserves. [ 27 ] Mr. Gregson, please stand.

I am sentencing you to a custodial sentence of nine months, being six months on the first offence with a sentence of nine months on the second offence to run concurrently. [ 28 ] Crown, you did not indicate that you were also seeking a probation order. (DISCUSSION) [ 29 ] THE COURT: Given that submission and the fact that it has not helped in the past, I am going to just leave it at the nine-month sentence at this time. (DISCUSSION) [ 30 ] MR. HUTCHISON: In terms of the victim fine surcharge, Your Honour, I think those are statutory. Given that Mr.

Gregson is going to be in jail, I'd ask that you find him in default and -- [ 31 ] THE COURT: Does the Crown have any submissions on that? [ 32 ] MS. RUTHERFORD: No, Your Honour. It is a common practice in the circumstances. [ 33 ] THE COURT: I have no difficulty. I will impose the fine, payable forthwith, in default of which he will serve one day concurrent. [ 34 ] MR. HUTCHISON: Thank you, Your Honour. [ 35 ] THE COURT: Thank you. [ 36 ] MS. RUTHERFORD: Your Honour, there is the ancillary orders.

The s. 109 mandatory weapons prohibition, as well as the -- (DISCUSSION) [ 37 ] THE COURT: So it is a lifetime ban then? [ 38 ] MS. RUTHERFORD: It is, Your Honour, and I believe that a DNA order is also mandatory in these circumstances.

[ 39 ] THE COURT: I will impose both. [ 40 ] MS. RUTHERFORD: The Crown would also be seeking a forfeiture order of defence-related property which I can draft, send to my friend to sign and then -- [ 41 ] MR. HUTCHISON: And I'm fine with that, Your Honour. [ 42 ] THE COURT: Yes. That order will go as well. (REASONS FOR SENTENCE CONCLUDED)