R. v. Malt Date:, 2016 BCPC 322

Citation: R. v. Malt Date: 20161020 2016 BCPC 0322 File No: 233036-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. GABRIEL WINSTON ZACHERY MALT REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: Cameron Fast Counsel for the Defendant: Joel Whysall Place of Hearing: Vancouver , B.C. Date of Hearing: September 3, 2016 Date of Judgment: October 20, 2016

A. Introduction [ 1 ] Mr. Malt was convicted of possessing cocaine for the purpose of trafficking. The circumstances of the offence occurred within the context of a dial-a-dope operation. The task for this Court is to impose a sentence that is fit and appropriate. B. Circumstances of the offence [ 2 ] On February 28, 2014, the police observed a vehicle driven by Mr. Malt briefly meeting with a known drug user. When the meeting was done Mr. Malt drove away and the police followed him. Shortly thereafter, the police stopped Mr.

Malt and searched the car he was driving. [ 3 ] Inside the police found a candy container with nine individually wrapped pieces of rock cocaine. The total weight of the cocaine was 3.5 grams. Also located were two cell phones that were constantly ringing, $270.00 in Mr. Malt’s wallet, $855.00 in Mr. Malt’s back pocket and a large amount of change in a sunglass case. C. Mr. Malt’s background [ 4 ] Mr. Malt is 28 years old. His upbringing was unremarkable. When Mr. Malt was 16 his father passed away from cancer. At the time Mr. Malt had a three year old sister and his mother was an unskilled worker.

Therefore, and in order to help with finances, Mr. Malt left school and started working. [ 5 ] After the passing of his father, Mr. Malt’s mother formed a common-law relationship. The new partner was abusive and he drank excessively. Conflict between Mr. Malt and his mother’s partner resulted in Mr. Malt moving out in 2010. [ 6 ] Since that time Mr. Malt has worked in a variety of settings. Mr. Malt worked for a period of time as a chef at a local restaurant chain and was employed when he committed the offence before the court. Currently, Mr. Malt and his common-law spouse co-own an e-cigarette outlet.

By all accounts the business is doing well and Mr. Malt takes a monthly draw of $3000.00. [ 7 ] The pre-sentence report confirms Mr. Malt drinks occasionally and that he does not have substance abuse issues. Despite not having substance abuse issues, Mr. Malt has a record for drug offences. In this regard, his criminal record is as follows: July 26, 2006 – Three counts of possession for the purpose of trafficking. He was sentenced to 1 day on each count with the record showing 76 days time served. July 31, 2006 – One count of possession of a controlled substance.

He was sentenced to 1 day jail with the record showing 5 days time served. May 26, 2007 - One count of possession of a controlled substance. He was sentenced to 1 day jail. December 4, 2008 - One count of possession of a controlled substance. The passing of sentence was suspended and he was placed on probation and given a $500.00 fine. May 24, 2008 – Flight from a peace officer. He was fined $1000.00. [ 8 ] Mr. Malt’s criminal record discloses his first offences occurred when he was 19 years old.

Further, some of his offences occurred while he was on judicial interim release and one of his offences occurred while he was bound by a probation order. Finally, I observe that Mr. Malt’s last substantive offence pre-dated the instant matter by six years. [ 9 ] Several letters were filed speaking to Mr. Malt’s character. These letters speak of Mr. Malt’s work ethic, his loyalty and his willingness to help others. Some of the letters express that Mr. Malt has shown remorse for his offence and that he has learned his lesson. [ 10 ] I have difficulty giving full weight to some of the letters filed.

This is because some of the letters do not mention Mr. Malt’s criminal record or even indicate an awareness of his previous legal difficulties. [ 11 ] Despite my comments, I accept Mr. Malt is hard working, loyal and dedicated to family and friends. In fact, I find myself wondering if the subject of the character letters and Mr. Malt are one and the same.

I say this because, although being gifted with admiral qualities and social support, he is again before the courts for having committed a serious criminal offence. [ 12 ] With respect to his reasoning for being involved in the instant offence, Hardip Gill, the probation officer who prepared the pre- sentence report made the following comments: Mr. Malt takes responsibility for the present offence. He states he was trafficking cocaine in order to pay his legal fees for his prior criminal offences. Mr.

Malt states at the time of the offence he was working long hours at the restaurant and looking for a quicker way to make money. He advises he regrets his actions and he is “stressed out” as he is concerned about how his business will be impacted by the present offence. He states his decision to sell cocaine was impulsive at the time.

Perhaps Mr. Malt’s decision to re-enter the drug trade might have been impulsively made, however, all his actions thereafter showplanning, deliberation and careful execution. In this regard, he obtained a rental car, a cell phone, the drugs, and he separated the cash hemade. D. Positions of the parties [13] The Crown argues a fit and appropriate sentence is incarceration for 18 months. In support, the Crown highlights: thesentencing range; Mr. Malt’s criminal record; the type of drug involved and the context within which the offence occurred. [14] The Crown relies on the following R. v. Lloyd, 2016 SCC 12, R. v.

Lloyd, 2014 BCCA 224, R. v. Lloyd, 2014 BCPC 8, 2014 BCPC 0008, R. v. Kukelka, 2010 BCCA 180, R. v. Tran, 2007 BCCA 405, R. v. Vu, (BCCA) and R.v. Cook, 2001 BCCA 225. [15] Counsel for Mr. Malt argues his client’s circumstances are exceptional and therefore the Court should consider imposing a non-custodial sentence. In support, counsel points out the rehabilitative efforts Mr. Malt has undertaken; the support of family and friends;the remorse displayed and the passage of time. [16] In support, counsel referred the court to R. v. Voong, 2015 BCCA 285 at paragraph 59 where Madam Justice Bennett stated: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dopedrug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptionalcircumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation forthe drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed toharm 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 circumstancesthat are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge toconclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served bya non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded thatCSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [17] Specifically, counsel argues that suspending the passing of sentence and placing Mr. Malt on probation for 3 years wouldachieve the purpose and principles of sentencing without disrupting the rehabilitative progress that Mr. Malt has made. [18] As an alternative position, counsel for Mr. Malt argues, if a custodial sentence is imposed then the length of sentence must becarefully considered so that Mr. Malt’s rehabilitative steps are not undermined. [19] Mr. Malt relies on the following authorities: R. v.

Voong, 2015 BCCA 285, R. v. Truong, 2016 BCPC 224, R. v. Madison, 2015BCPC 323, and R. v. Wong, 2016 BCSC 1568. E. The law [20] The purpose and principles of sentencing are set out in ss. 718 - 718.2 of the Criminal Code. The relevant sections are: s. 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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; (

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 acknowledgment of the harm done to victims and to the community. [21] A fundamental principle of sentencing is found in s. 718.1: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [22]

Section 718.2 sets out other sentencing principles. This

section reads in part: 718.2 A court that imposes a sentence shall also take into consideration the following principles:

(

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offenceor the offender, and, without limiting the generality of the foregoing, (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [23] The purpose of sentencing as it relates to drug offences is found in s. 10 of the Controlled Drugs and Substances Act, whereinthe relevant portions read: 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 isto contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, andtreatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. I Sentencing objectives - dial-a-dope offences [24] The primary sentencing objectives, absent exceptional circumstances, for offences committed in the context of a dial-a-dopeoperation are denunciation and deterrence. In R. v. Currie, 2016 BCCA 404, the court succinctly repeated this perspective and atparagraph 47 Mr. Justice Fitch stated: [47] …..

This Court repeatedly stressed that, in the absence of exceptional circumstances, the weight to be given to the sentencingobjectives of general deterrence and denunciation is such that dial-a-dope traffickers could expect to receive custodial sentences. Forexample, in R. v. Gill, 2013 BCCA 320 at paras. 22-24, the Court said: It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to boththe individuals who use them and to our community.

The proliferation of these operations has significantly increased accessibility tothese drugs, and their harmful effects. As a result, the courts have routinely recognized that the primary objectives in imposing sentencesfor trafficking in this manner must be deterrence and denunciation. In Proulx, the Court was clear that a conditional sentence may satisfy those objectives. Nevertheless, as the problems and tragediesassociated with narcotic use have multiplied, this Court has repeatedly indicated that a fit sentence for a dial-a-dope trafficker willgenerally be a custodial term of six to 12 months. In R. v.

Tran, 2007 BCCA 613, a case in which the appellant argued the trial judgewrongly imposed a sentence of 9 months’ incarceration instead of a conditional sentence for a conviction arising from a dial-a-dopescenario, this Court captured the approach it has generally taken in such cases at para. 6: … There is a line, fairly long now, of cases from this Court in which, absent an out of the ordinary circumstance, a custodial sentence hasbeen found to be a fit sentence on a conviction of trafficking in a hard drug in what is referred to as a “dial-a-dope” scheme, where theoffender is not an addict and has participated simply for profit.

Subsequent decisions of this Court dealing with similar circumstances reveal that approach has not changed: R. v. Rastgoei, 2008 BCCA242 at paras. 38-43; R. v. Ali, 2010 BCCA 4 at para. 12; R. v. Laurila, 2010 BCCA 535 at paras. 6-7; R. v. Ash, 2010 BCCA 604 atpara. 22;R. v. Barrick, 2012 BCCA 83 at para. 13; and R. v. Ladret, 2012 BCCA 401 at paras. 5-8.

These cases generally support theview that, in the absence of special circumstances, a dial-a-dope trafficker should expect a custodial sentence. [25] These principles re-affirm comments found in Voong at paragraph 18: [18] This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drugtraffickers. While no one principle “trumps” the other, there are offences and circumstances where one or more principles come to theforefront and generally will be given more weight than others.

II Seriousness of the offence and degree of offender responsibility [26] Those who engage in drug trafficking distribute poison throughout our communities and therefore contribute the destruction oflives while causing tremendous damage to our social systems. [27] The harm associated with drug trafficking was commented on in Pushpanathan v. Canada, [1999] 1 S.C.R. 982, at paragraphs.89 - 91: [89] The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct

costs such as health care and law enforcement, and indirect costs of lost productivity. [90] In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra , at p. 227). In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs ( ibid. , p. 91).

Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims ( Costs of Substance Abuse in Canada , supra , at p. 6). [91] These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. [ 28 ] Parliament clearly recognizes the seriousness of drug trafficking. This perspective is evidenced by life imprisonment being the maximum penalty available for trafficking in

Schedule 1 drugs and possessing

Schedule 1 drugs for the purpose of trafficking. [ 29 ] In Voong , Madam Justice Bennett commented on the seriousness of drug trafficking and at paragraph 1 she succinctly stated: [1] Those who embark in drug trafficking engage in serious criminal conduct. Absent exceptional circumstances, in British Columbia, they should expect to be sent to prison. As for dial-a-dope and the seriousness of these schemes, Madam Justice Bennett observed at paragraphs 16-18: [16] This Court recently discussed the serious nature of the “dial-a-dope” offence in R. v.

Oates , 2015 BCCA 259 at paras. 19-20 , citing Henderson J.’s decision in R. v. Franklin , 2001 BCSC 706 . The customer calls a cell phone number, places an order and then the dealer travels to a location for the drug exchange to take place. In other words, the drugs can be obtained with the ease of “home delivery”. This type of trafficking is particularly insidious, and permits the drug trade to infiltrate communities to a greater degree. [17] In Franklin , Henderson J. pointed out the easy access to drugs made available by the dial-a-dope model of selling drugs.

He concluded that dial-a-dope required forethought and planning − a vehicle, a cell phone, a drug supplier and circulation of the knowledge that drugs are available at the phone number. [18] This Court has repeatedly said that general deterrence and denunciation are the main principles to consider when sentencing drug traffickers. While no one principle "trumps" the other, there are offences and circumstances where one or more principles come to the forefront and generally will be given more weight than others. [ 30 ] Further commentary on dial-a-dope operations and the trafficking of cocaine is found in R. v.

Tran , 2007 BCCA 405 , at paragraphs 34-35 , the Court observed: [34] This Court has discussed "dial-a-dope" circumstances in the past and noted that it is a more aggravated form of the drug business. By its nature it has a degree of sophistication and marketing to sustain the business, indicating a significant level of committed endeavour, and it poses extra difficulty for police investigation. [35] Cocaine, as noted by courts repeatedly, is a highly addictive drug. On a daily basis courts see the negative toll it takes on people who use it.

By engaging in the business of dispensing cocaine in an operation such as this, Mr. Tran has lent himself to misery in his community. And he has done so for profit when he has been earlier warned by the courts, through his prior conviction and incarceration, not to do so. III

Summary of the law [ 31 ] Absent exceptional circumstances those who traffic in

Schedule I or II substances can expect a custodial sentence. The primary sentencing objectives are, absent exceptional circumstances, denunciation and deterrence: R. v. Lloyd , 2016 SCC 13 , Voong , supra , R. v.

Tran , 2007 BCCA 405 . [ 32 ] Exceptional circumstances may include, no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgment of the harm done to society: Voong , supra, at paragraph 59 . [ 33 ] Sentences for a first offence or for those convicted of a drug offence in the context of a dial-a-dope operation, and who have a minimal record will be in the range of six to eighteen months: Voong , supra, at paragraph 59 .

IV Application to the instant case [ 34 ] After considering the circumstances of the offence and Mr. Malt’s personal circumstances, I find that denunciation and deterrence are the primary sentencing objectives with some consideration for Mr. Malt’s rehabilitation. [ 35 ] In my view the sentence imposed must signal societies’ condemnation for Mr. Malt having been involved in such a serious offence. Moreover, the sentence imposed must send a message to those who consider trafficking in drugs. [ 36 ] As for Mr.

Malt’s rehabilitation, I note his age; that he is in a common-law relationship and that heis a co-owner of a business. I

also recognize that Mr. Malt has the support of family and friends. [ 37 ] I appreciate that the sentence imposed must be proportionate and in this regard I find the gravity of Mr. Malt’s offence to be serious. He was engaged in the trafficking of a highly addictive drug in circumstances that maximized his ability to distribute the drug throughout communities. I also find Mr. Malt’s responsibility to be high; his motivation was greed.

He did not want to legally earn the money to pay his legal fees, rather, he made the decision to traffic in cocaine and then he took the steps to acquire his tools of the trade (car, cell phone, drugs). [ 38 ] In R. v. Currie , 2016 BCCA 404 , Mr. Justice Fitch noted the planning required for a dial-a-dope seller and at paragraph 51 he commented about those who trafficked for profit: [51] I agree with the position of the Crown that trafficking by a non-addicted offender for financial gain is behaviour that is planned and deliberate and, thus, more amenable to the deterrent force of the law. F.

Aggravating and mitigating factors [ 39 ] I find the following aggravating factors: 1) Mr. Malt has a related criminal record. While I recognize he was young when he committed the earlier offences, it is clear previous sentences failed to deter him from offending in a similar fashion. 2) The drug involved. Cocaine is a highly addictive

schedule 1 substance. 3) Distributing the cocaine in the context of a dial-a-dope operation. Trafficking in this manner was commented on in Voong , supra ., R. v. Tran , 2007 BCCA 405 , and R. v. Franklin , 2001 BCSC 706 . 4) Mr. Malt was motivated by greed. [ 40 ] I find the following to be mitigating: 1) Mr. Malt is relatively young. 2) Mr. Malt has the support of family and friends. 3) Mr. Malt has demonstrated remorse. 4) The delay in concluding the instant matter. Specifically, the offence was in February of 2014, and the matter has had several delays most of which I do not attribute to Mr. Malt. G.

Decision on sentence [ 41 ] After careful consideration, I find Mr. Malt’s circumstances are not exceptional as contemplated in Voong . In this regard, there were no factors that propelled Mr. Malt into the enterprise of trafficking. Rather, and despite having a job, he wanted to quickly earn money so he could pay legal bills. Moreover, post-offence, there has not been a substantial change in his life. I agree he has become more settled but at the time of the instant matter he was employed, he was dating the same woman, and he had the support of family and friends. [ 42 ] Having found that Mr.

Malt’s circumstances are not exceptional, I now turn my mind to consider what length of sentence would achieve denunciation and deterrence without undermining the positive things in Mr. Malt’s life. In other words, I do not want to impose a sentence that is so long that he loses all the positive things he currently has in his favour. [ 43 ] In arriving at my decision, I have considered the range of sentences and were it not for the mitigating factors the sentence that I am about to impose would have been longer.

In my view, a fit and appropriate sentence is a 12 month custodial sentence followed by probation for a period of 12 months. H. Probation conditions [ 44 ] The terms and conditions of the probation are as follows: You must keep the peace and be of good behaviour; You must appear before the court when required to do so by the court; You must notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

You must report within 48 hours of your release from custody to a probation officer located at 275 East Cordova Street Vancouver, BC and thereafter as and when directed by the probation officer; You must not possess or consume those drugs as defined by the Controlled Drugs and Substances Act, except those drugs for which you have a medical prescription.

You must complete 50 hours of community work service. This work must be completed at the direction and to the satisfaction of your probation officer. Such work must be completed on or before September 1, 2017. I. Ancillary orders [ 45 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. [ 46 ] Pursuant to s. 487.051 of the Criminal Code , and after considering Mr.

Malt’s background, the offence that he is being sentenced for, and the circumstances of that offence, as well, as his privacy rights and his right to the security of the person: balanced against the best interests of the administration of justice, I make an order in Form 5.03 authorizing the taking of a DNA sample. [ 47 ] Victim fine surcharge is payable within 6 months of your release from custody. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia