R. v. Wadsworth Date:, 2016 BCPC 1

Citation: R. v. Wadsworth Date: 20160106 2016 BCPC 0001 File No: 233186-C-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DUSTIN WADSWORTH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: H. Magnin Counsel for the Defendant: M. Richards Place of Hearing: Vancouver , B.C. Date of Hearing: December 8, 2015 Date of Judgment: January 6, 2016

INTRODUCTION [1] Mr. Wadsworth was convicted of possessing cocaine for the purposes of trafficking. Counsel agree the circumstances of theinstant case warrant a custodial sentence. The task for the court is to determine a fit and appropriate term of imprisonment. CIRCUMSTANCES OF THE OFFENCE [2] In October of 2014, Mr. Wadsworth was arrested after the police observed him breaching a term of his bail. Mr. Wadsworthwas searched incidental to his arrest and in his backpack the police located the following: 10 ounces of cocaine, 2 kilograms of a cuttingagent, baking soda and Pyrex glassware.

The Crown alleges these items are necessary to make crack cocaine. [3] After Mr. Wadsworth’s arrest, a search warrant was executed at a residence that he was sharing with Ms. Florko. Inside theresidence, the police located $57, 000 in cash. The monies were stored in various bundles and concealed throughout the suite. Alsofound were, 1300 grams of a cutting agent, drug paraphernalia and 291 ecstasy pills. It is noteworthy that Mr. Wadsworth was acquittedof possessing the ecstasy pills. [4] Mr. Wadsworth has been in custody since his arrest on October 21, 2014.

He has not sought his release and counsel agree that,pursuant to the reasoning in R v. Summers, 2014 SCC 26 , [2014] 1 S.C.R. 575, Mr. Wadsworth is entitled to enhanced credit ata rate of 1.5 days for each day spent in custody. CIRCUMSTANCES OF THE OFFENDER [5] Mr. Wadsworth is 33 years old. When he was young his parents were addicted to drugs. He had little support or supervisionand he frequently associated with older kids who were criminally active. [6] Mr. Wadsworth was first incarcerated at 12 years old.

Thereafter, he was in and out of custody with the result that he spent themajority of his youth in custody. He has a lengthy youth record and his first adult conviction was for robbery, use of an imitationfirearm, and break and enter with intent. For the robbery, Mr. Wadsworth was sentenced to an effective custodial term sentence of 4years and 5 months. Mr. Wadsworth’s next and last convictions were in 2009, these were for possessing a firearm, break and enter withintent, and disguise with intent.

For these offences he received an effective term of imprisonment of 3 years, and 1 year consecutive (tothe 3 years), as well as, 1 year concurrent (to the 1 year). [7] Of note is Mr. Wadsworth was on bail at the time of the instant matter. With respect to his bail, he had been arrested in Aprilof 2014 on allegations of possessing methamphetamines and heroin. According to his counsel, Mr. Wadsworth will be sentenced forthese offences prior to him being sentenced on the instant matter. [8] Mr. Wadsworth’s counsel submitted that Mr.

Wadsworth previously struggled with an addiction and at the time of the offencehe was using GHB approximately five times per day. I do not hear his counsel saying an addiction was a primary cause of his criminalbehaviour, nor, has any evidence been filed satisfying the court that Mr. Wadsworth’s conduct was driven by an addiction. [9] As things currently stand, Mr. Wadsworth has the support of his mother she has been at every court appearance and it isnoteworthy that she has been drug free for 10 years. [10] Mr. Wadsworth plans to finish his sentence and then move forward with his life.

In this regard, he has taken the preliminarysteps of applying to receive training as machinist. His interest in this area is driven by a friend who completed similar training andopened his own shop. POSITION OF THE PARTIES [11] The Crown argues a fit and appropriate sentence is a 4 year term of imprisonment. In support of their position, the Crownhighlights the quantity and the nature of the drug involved. Specifically, cocaine is a “hard” drug and listed as a

schedule 1 drug. Further, that the quantity as well as the circumstances support a finding that Mr. Wadsworth was a mid-level dealer. The Crown alsodraws the court’s attention to Mr. Wadsworth’s criminal history, as well as the fact that he was on judicial interim release at the time ofthe offence. [12] The Crown relies on a series of cases to establish a sentencing range. Although ranges represent important guidelines, it mustbe remembered that ranges do not represent inflexible boundaries and certain circumstances may dictate that a fit sentence falls above orbelow the range. [13] Counsel for Mr.

Wadsworth submits a custodial sentence of 2 years would adequately address denunciation and deterrencewhile satisfying the principles of restraint, rehabilitation and parity. [14] Cases relied on by counsel are summarized below. A review of the cases demonstrate that a sentence is typically increasedwhen some of the following factors are present: a “hard drug such as cocaine is involved, the offender has a related record, thetrafficking is for profit, weapons are somehow involved, and the offender is more than a street level trafficker. [15] In R. v.

Lloyd, 2014 BCCA 224, the court allowed the Crown’s appeal and imposed an effective sentence of 18 monthsincarceration. The respondent was charged after he was found in possession of 2.39 grams of cocaine, 6.16 grams of methamphetamineand .64 grams of heroin. The respondent was 25 years old, he had a criminal record with 21 previous convictions and he had beenreleased from prison on a similar matter three weeks prior to his arrest on the instant matter. [16] In R. v. Murray, 2009 BCCA 426, the court allowed the appellant’s appeal and reduced his sentence to 4 years and 5 months.

The appellant had pled guilty to two counts of possessing cocaine for the purposes of trafficking. On the first count, the appellant wasfound in possession of 4 bags of cocaine. Two of the bags contained powder cocaine each weighing 14 grams. The other two bagscontained rock cocaine each weighing 24 grams. The appellant was released on bail and subsequently, arrested and in his possessionwas just under a kilogram of cocaine. The appellant was 62 years old, he had a long criminal record which was related. There was abreak between his last conviction and the offences before the court.

The record and the offences were driven by the appellant’saddiction which had been controlled by the time of sentencing. [17] In R. v. Sajadi, 2014 BCPC 256 , 2014 BCPC 0256, the offender received a 24 month prison sentence after he pledguilty to possessing cocaine for the purposes of trafficking. The accused was arrested after the police searched three locations and foundapproximately 734 grams of cocaine, materials necessary to prepare and make crack cocaine, as well as, approximately 40 grams ofheroin, and approximately $25,000.

The offender was 25 years old at the time of his offences and 33 years old when he was sentenced. He did not have a criminal record and at the time of his arrest he was suffering from an addiction and mental health issues which hadresolved at the time of sentencing. [18] In R. v. Allen, 2014 BCSC 1024, the offender was sentenced to imprisonment for 30 months after he pled guilty to thefollowing: two incidents of trafficking cocaine, and one incident possessing 230 grams of powder cocaine, as well as, 79 grams of crackcocaine.

The offender was 33 years old, employed, and his offences were motivated by profit. [19] In R. v. Fusaji, 2005 BCSC 1944, the offender received an effective sentence of 3 years custody after he pled guilty topossession of cocaine and heroin for the purpose of trafficking. Police searched the offender’s apartment and found 629 grams ofcocaine, 10.83 grams of heroin, a handgun, surveillance cameras and a great deal of material related to the drug trade. [20] In R. v.

Rose and Mishra, 2001 BCPC 345 , 2001 BCPC 0345, the offender, Mishra, was sentenced to a custodial termof four years after he was convicted of possessing cocaine and heroin for the purposes of trafficking. The police searched the offender’sbusiness and located a large amount of cash, score sheets, approximately 10 ounces of cocaine, approximately 6 ounces of heroin and 6bullets. The offender was 28 years old, he had a prior unrelated criminal record. He came from a supportive background and was aremarkable businessman.

His offences were motivated by greed, it was a sophisticated operation, he had a high degree of culpability andhis offending occurred over a considerable period of time wherein he sold large volumes of drugs. [21] In R. v. Ahmed, 2001 BCCA 504, the court allowed the Crown’s appeal and replaced a sentence of an 18 month conditionalsentence order with an 18 month custodial sentence. The respondent was 29 years old, he was a landed immigrant who was convicted ofengaging in 6 drug transactions.

At the time of sentencing, the respondent was employed, he had letters of support, and he was involvedin a stable relationship. The transactions occurred from a store which was near a school. The transactions involved a total of 7.2 gramsof cocaine and occurred in a dial-a-dope fashion, done solely for profit. [22] In R. v. G. (J.M.), 2005 BCPC 333, the offender was sentenced to imprisonment of 2 years less a day to be served by way of aconditional sentence order.

The offender was convicted of possessing cocaine for the purposes of trafficking after the police found himin possession of the following: a 12.5 gram rock of cocaine, 6 bags of powder cocaine, each weighing 1 once or 29 grams, 6 bags ofpowder cocaine each weighing ½ an ounce or 14.5 grams, 1 bag of heroin weighing 11.3 grams, score sheets, bags for packaging, and acell phone that was receiving calls wherein the caller ordered drugs. The offender was 37 years old, he had an abusive and unstableupbringing, at 12 he was an alcoholic and a cocaine user at 15, and he had an unrelated criminal record.

Since his arrest, the offenderstopped using drugs, was in a stable relationship, he had letters of support, and he was employed. In imposing sentence, Judge Howardwas satisfied the unique circumstances of the case justified a conditional sentence order. [23] In R. v. Clough, 2001 BCCA 613, the appellant appealed a 9 month custodial sentence. The court allowed the appeal andsubstituted a 12 month conditional sentence order. The appellant had been convicted of possessing 9 ounces of cocaine for the purposeof trafficking. The appellant was 23 at the time of the offence and drug dependant.

When the appellant was sentenced, she was nolonger drug dependant, she was employed and living at home with excellent prospects. [24] In R. v. Millar, 2005 BCSC 1571, the offender was sentenced to imprisonment for 2 years less a day followed by 2 years ofprobation. The offender had been convicted of selling a ¼ and ½ pound of cocaine and arranging the sale of a kilogram of cocaine (thekilogram transaction did not occur). The offender was young, he did not have a criminal record, he was dealing with substance issuesand he had the support of family. [25] In R. v. Slazar, 2000 O.J.

No 4974 Superior Court of Justice, the offender was sentenced to a 9 month conditional sentenceorder after being convicted of possessing 9 ounces of cocaine for the purposes of trafficking. The offender was 28 years old, he had anunrelated criminal record, and he was a drug user. At the time of sentencing the offender stopped using drugs, he had the support of hisfamily, and he was employed. [26] In R. v. Sidhu, 2015 BCPC 91, the offender was sentenced to imprisonment for 6 months after he pled guilty to possessing 10ounces of cocaine for the purposes of trafficking.

The offender was a cocaine user and on probation when he committed the offence. The offender had made significant changes in his life. He stopped using drugs and he was employed. [27] I am satisfied that the range of sentence available in cases that have some similarity to the instant case is 6 months at the lowend and 4 years at the high end. THE LAW [28] 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. [ 29 ] 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. [ 30 ]

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 offence or 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 to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 31 ] The purposes of sentencing as it relates to drug offences is found in s. 10 of the Controlled Drugs and Substances Act, wherein the 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 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. [ 32 ] The authorities confirm denunciation and deterrence are the primary sentencing objectives for drug offences involving the trafficking of hard drugs: R. v. Ahmed , 2001 BCCA 504 , R. v. G. (J.M.), 2005 BCPC 333 , R. v.

Sidhu, 2015 BCPC 91 . [ 33 ] Despite finding the circumstances of the instance matter demand a sentence that is focussed on denunciation and deterrence, this court cannot lose sight of Mr. Wadsworth’s rehabilitative prospects. In this regard, Mr. Wadsworth is still relatively young, he has the support of his mother, he has a release plan and he has expressed remorse. [ 34 ] With respect to the gravity of the offence, the nature of the drug, the quantity and the circumstances heighten the seriousness of the offence. I also note the words of the court in Pushpanathan v.

Canada, [1999] 1 S.C.R. 982 , where the court stated at paras. 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. [ 35 ] I find Mr. Wadsworth’s culpability to be high.

He had a large quantity of cocaine, he had materials for making crack cocaine and his involvement was more than a street level dealer. [ 36 ] I find the following facts to be aggravating, the quantity and type of drug involved, the fact Mr. Wadsworth was on bail, his criminal history and that he was a mid-level dealer. [ 37 ] It is mitigating that Mr. Wadsworth is remorseful. It is also mitigating that he gave instructions enabling his counsel to litigate the issues in an efficient fashion.

CONCLUSION [ 38 ] After considering all of the circumstances, I find that a custodial sentence of 24 months adequately addresses the requisite denunciation and deterrence and yet preserves Mr. Wadsworth’s rehabilitative prospects. With respect to the time that Mr. Wadsworth

has served, he has been in custody since October 21, 2014, and therefore he is entitled to credit at a rate of 1.5 days for every day in custody. Accordingly, the actual time served is 443 days, for which he will be credited with 485 days. This is because 180 days (6 months) of his presentence custody was applied to the sentence he received for his April 2014 offence. Accordingly, there is a balance of 245 days to be served. [ 39 ] I also make the following ancillary orders, pursuant to s. 109 of the Criminal Code , Mr.

Wadsworth is prohibited for life from possessing, any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance. [ 40 ] After considering all of the factors, pursuant to s. 487.051 (3) , of the Criminal Code , I find it is in the best interests of the administration of justice to order that Mr. Wadsworth provide a sample of his DNA. [ 41 ] Victim fine sure charge is payable forthwith. _____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia