HER MAJESTY THE QUEEN - v. -, 2012 NBPC 7

R. v. Lee Roy Durepos 2012 NBPC 7 Tabufile : 02772708 CANADA PROVINCIAL COURT OF NEW BRUNSWICK BETWEEN: HER MAJESTY THE QUEEN - and - LEE ROY DUREPOS Sentencing decision rendered by the Honorable Paul E. Duffie in the matter of a charge under section 5 (3) (

a) of the Controlled Drugs and Substances Act. DATE OF HEARING: February 28 th , 2012 PLACE OF HEARING: Grand Falls, New Brunswick DATE OF DECISION: March 20 th , 2012 APPEARANCES : Mr. Patrick Murchison, on behalf of the crown Ms. Jocelyne Moreau, on behalf of the defense DUFFIE, Prov. Ct. J. Charge [ 1 ] Mr. Lee Roy Durepos entered a plea of guilty for having in his possession Cannabis (marihuana) for the purpose of trafficking pursuant to section 5 (3) (

a) of the Controlled Drugs and Substances Act . Introduction [ 2 ] The parties agree that a jail term is warranted in the circumstances; however, they disagree on how the term should be served. The crown submits that an eighteen month provincial jail term plus a twelve month probationary period would be an appropriate sentence considering the need for deterrence and denunciation in drug related offences. The defence argues that Mr. Durepos should receive a sentence of two years less a day to be served in the community under a Conditional Sentence Order followed by a period of probation.

In support of their respective positions, counsel have provided the court with several cases and a letter from Mr. Durepos’ psychiatrist. I also ordered and received a presentence report for Mr. Durepos. Facts of the offence

[ 3 ] Following the execution of a warrant by police they seized 3,203 grams (approximately 7 ½ pounds) of Cannabis (marihuana) at Mr. Durepos’ residence. They also seized a digital scale and baggies used for packing the cannabis. The street value, when calculated on a per gram basis, is approximately $32,000.00. Circumstances Respecting the Offender [ 4 ] Mr. Durepos is 35 years old, is presently in a common law relationship and is the father of a young daughter. Mr.

Durepos reports no traumatic events from his childhood and he says he left the family home at the age of eighteen. [ 5 ] He entered into his first common law relationship at the age of 22 and the couple gave birth to a daughter which he has not seen since she was three years old. He entered into a second relationship and both had a history of substance abuse which produced a very unstable relationship. His third relationship, which has been ongoing for five years, includes the birth of his second daughter, who is now four years old and is living with the couple.

No major issues or any domestic matters were reported with this relationship which appears to be loving and supportive. [ 6 ] Presently, the couple has no means of transportation and most of the time, Mr. Durepos has to walk to get groceries or to attend any medical appointments. They reside in a secluded area with no close neighbors. [ 7 ] It is reported that in 2009, Mr. Durepos was diagnosed by Dr. Nachiketa Sinha with “Schizo-affective Disorder” . This is a mental disorder characterized by recurring episodes of elevated and depressed moods.

It was also noted that this type of illness or the symptoms of psychosis are not caused by drug abuse, medication or any other medical condition. His treatment is ongoing and will continue on a long term basis. Dr. Shina informed the author of the presentence report that, if Mr. Durepos ends up in jail, there might be a rapid deterioration of his mental state and he may be at high risk of suicide. [ 8 ] A letter from Dr. Sinha was introduced at the sentencing hearing as an exhibit which reads as follows: “Mr.

Durepos has been under my care since the 5 th of March, 2010 by way of the Perth Community Mental Health Centre. Prior to that, he was followed in my private practice beginning the 15 th of July 2009. Mr. Durepos suffers from a chronic, severe and persistent mental illness. I gather he has gotten himself into some legal trouble, and is looking at the possibility of incarceration. I humbly submit that I have no legal expertise, neither do I intend to interfere in the course of justice, but I would like to say that in my professional opinion, if Mr.

Durepos was indeed sent to serve time in prison, it would have a detrimental effect on his mental health. Should the honorable court consider it feasible, that in view of his mental illness, house arrest might be less damaging for him. I would request the honourable court to kindly consider this while sentencing Mr. Durepos.” [ 9 ] The family is sustained through Income Assistance and they struggle to make ends meet due to their minimum means of income. Finally, Mr. Durepos readily admits his guilt in committing the offence and he has expressed remorse for same.

Purposes and Principles of Sentencing [ 10 ] Since Mr. Durepos pled guilty to having in his possession just over three kilograms of Cannabis for the purpose of trafficking, he is liable to maximum sentence of imprisonment for life. If he would have been found in possession of less than three kilograms, he would have been liable to a term not exceeding five years less a day. [ 11 ] The fundamental purpose of sentencing under the Controlled Drugs and Substances Act is set out in

section 10 and is to be considered along with the provisions of the Criminal Code which are very similar and are discussed below. [ 12 ]

Section 10 (

b) of the Controlled Drugs and Substances Act sets out the statutory aggravating factors particular to drug related offences and none of those aggravating factors are applicable and present in this case. As well, there are no statutory aggravating factors found in

section 718.2 of the Criminal Code . [ 13 ]

Section 718 of the Criminal Code sets out the purposes and principles of sentencing such as the need to denounce unlawful conduct, to deter the offender and others from committing offences, to separate offenders from society when required to do so, to assist in

the rehabilitation of offenders, to promote a sense of responsibility in offenders for the harm they have done and to provide reparations for the harm done to victims and to the community. [ 14 ]

Section 718.1 of the Criminal Code provides that a sentence must be proportionate to the gravity of the offence and to the degree of responsibility of the offender. [ 15 ]

Section 718.2 of the Criminal Code states that, in the imposition of a sentence, aggravating and mitigating circumstances relating to the offence or the offender should be taken into account. It also provides , inter alia, that a sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances and that the offender should not be deprived of liberty if less restrictive sanctions may be appropriate. Analysis [ 16 ] What is an appropriate sentence for Mr. Durepos? [ 17 ] This is a close and difficult case.

Both crown’s and defense’s positions are not unreasonable. [ 1 8] It is a basic theory of punishment that the sentence imposed bears a direct relationship to the offence committed. It must be a fit sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender deserves the punishment received and feel confidence and fairness in the rationality of the system. To be just, the sentence imposed must also be commensurate with the moral blameworthiness of the offender.

A sentence that is not just and appropriate produces only disrespect for the law. [ 1 9] The codified sections referred to above set out a number of established and important values to help sentencing judges give effect to the fundamental principles of proportionality. The articulated principles however are general in form and moreover they provide no mechanism for resolving the inevitable conflicts that arise between these various principles in individual cases. Sentencing judges are simply told to weigh and balance the competing principles and fashion an appropriate sentence. Mitigating Factors [ 20 ] Mr.

Durepos pled guilty and seems to be truly remorseful for his conduct and says he should have known better. He reported that he has learned a valuable lesson and would never be involved in such activity again. During the interview, the author of the presentence report remarked that Mr. Durepos presented himself as being overwhelmed about this process, at times emotional, meaning he is fearful of the outcome. He exhibited signs of high levels of anxiety. Overall, he cooperated with the preparation of the report and answered the questions honestly and to the best of his ability.

There is a good potential as to his rehabilitation. Mr. Durepos has no drug related prior convictions and there was no indication that his involvement in the drug trade was other than a street level vendor. Mr. Durepos suffers from a mental illness for which he is receiving ongoing treatment. The presentence report is favorable as to his present family situation except for his financial challenges. Aggravating factors [ 21 ] Mr. Durepos has two prior convictions namely, an assault charge under s. 266 (

b) and a breathalyzer charge under s. 253 (b), both under the Criminal Code for which he was sentenced to fines in 2006. Mr. Durepos is in possession of a large quantity of drugs for a street level vendor. Principles of a Conditional Sentence [ 22 ] Counsel for Mr. Durepos is seeking a conditional sentence. The request is made pursuant to s. 742.1 of the Criminal Code . The Supreme Court of Canada, in R. v. Proulx , 2000 SCC 5 CanLII, explained the concept of a conditional sentence at paragraphs 21 and 22:

“The conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. These offenders’ liberty will be constrained by conditions to be attached to the sentence, as set out in s. 742.3 of the Code . In case of breach of conditions, the offender will be brought back before a judge, pursuant to s. 742.6.

If an offender cannot provide a reasonable excuse for breaching the conditions of his or her sentence, the judge may order him or her to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence. The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is served in the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence.” [ 23 ]

Section 742.1 of the Criminal Code lists essentially six criteria that a court must consider in deciding whether to impose a conditional sentence:

(1) The offender must be convicted of an offence that is not punishable by a minimum term of imprisonment and for which probationary measures alone are not sufficient;

(2) The offender must not be convicted of a serious personal injury offence – which is defined in s. 752 the Criminal Code as an indictable offence involving the use of violence or attempted use of violence or an indictable conduct endangering or likely to endanger the life or safety of another person or likely to inflict severe psychological damage upon another person or indictable sexual offence…;

(3) The offender must not be convicted of a terrorism offence or a criminal organization offence prosecuted by indictment and punishable by a maximum of ten years or more of imprisonment;

(4) The court must impose a term of imprisonment of less than two years;

(5) The safety of the community would not be endangered by the offender serving the sentence in the community; and

(6) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing prescribed in ss. 718 to 718.2 of the Criminal Code . [ 24 ] The first five criteria are necessary conditions that must be satisfied before a conditional sentence may be imposed. If met, the final question the court must consider is essentially whether a conditional sentence is the appropriate disposition pursuant to ss. 718 to 718.2 of the Criminal Code . Range of sentences [ 25 ] Is jail appropriate? If yes, what is the range for this type of offence? The parties in their respective submissions agree that a fit sentence is a jail term of less than two years.

[26] The court as always has the delicate task of balancing all of the principles of sentencing and applying them to the individual beforethe court. This provides the court with additional challenges because I must reconcile, in my view, the R. v. Ruest (

D) decision, (2005),2005 NBBR 257 , 285 N.B.R. (2d) 55, a decision of our Court of Queen’s Bench, submitted by defence counsel, and the R. v.Collier

(2006) NBCA 92, a case from our Court of Appeal. In the Ruest case, the court imposed a conditional sentence on Mr. Ruestwho was found with 780 pounds of marihuana and 407 marihuana plants. No special circumstances were advanced except that Mr. Ruestwas a first offender. [27] However, the Court of Appeal of New Brunswick, in R. v. Collier,

(2006) NBCA 92, had this to say at paragraphs 20 and 22: “ In R. v. Bourque (1989), (NB CA), 93 N.B.R. (2d) 423, [1989] N.B.J. No. 1166 (QL), our Court warned (atpara. 6): […] To put it more plainly we are of the general view that convicted drug traffickers, whether dealing in hard or soft drugs, canlook forward to incarceration. In my view, the sentencing principles adopted by this Court for trafficking offences are consistent with the requirements of theCriminal Code that govern sentencing generally and that are set out in ss. 718 to 718.2. Considering these principles, I am of theview that Mr.

Collier should have been sentenced to terms of imprisonment for the trafficking offences he committed. Mr.Collier, who committed the offences on two separate occasions, must be deterred from such conduct. Moreover, trafficking indrugs is conduct that must be denounced and, importantly, those who might be tempted to engage in such unlawful conduct mustbe deterred by appropriate punishment.

Imprisonment is generally necessary to achieve those goals.” [28] It seems clear from the Court of Appeal that the need for deterrence and denunciation in trafficking or possession for the purposeof trafficking cases are dominant and that those principles are rarely met by a conditional sentence rather than a firm term ofimprisonment and this is so even for first offenders. [29] To make my point, I would refer you to R. v. Ward,

(2008) NBPC 39 CanLII, in which Justice Ferguson, as he then was,concluded as follows at page 14, paragraph 47: “In short, the availability of a conditional sentence in cases involving drug trafficking or possession for the purposes oftrafficking in the Province of New Brunswick is extremely limited.

The principles of sentence as set out in the cases previouslyreferred to from the Court of Appeal make it clear that the important sentencing principles of denunciation and deterrence canrarely be met for those convicted of these types of crimes by conditional sentences of imprisonment served in the community byway of house arrest.” Application of the law [30] The main issue in the case at bar is the appropriateness of a conditional sentence. As previously stated, a conditional sentence canonly be imposed if the statutory criteria are met.

In this case, there is no minimum sentence nor is this a serious personal injury offenceor a terrorism or criminal organization offence. Moreover, all parties agree that the appropriate sentence in this case would be less thantwo years of imprisonment, thus the first four statutory criteria are met. [31] With respect to the safety of the community, I am satisfied that the safety of the community would not be put at risk by theimposition of a conditional sentence. In reaching this conclusion, I note that Mr.

Durepos has a relatively light criminal record, has noreported criminal activity since being charged with this offence in March of 2011, has the support of his family, and he is presently undermedical care. In addition, crown counsel conceded that Mr. Durepos would not be a danger to the community.

For these reasons, I amsatisfied that the community would not be put at risk by the imposition of a conditional sentence. [32] The remaining factor to consider is whether a conditional sentence would be consistent with the fundamental purpose and principlesof sentencing prescribed in ss. 718 to 718.2 of the Criminal Code.

[ 33 ] Counsel for Mr. Durepos argues that a conditional sentence would be appropriate given the mitigating factors and Mr. Durepos’ mental disorder at the time of the offence and the court agrees. [ 34 ] In my view, Mr. Durepos’ mental state does create a unique and special circumstance. I could not find much guidance from New Brunswick case law if such a special circumstance could justify, in certain cases, a conditional sentence when normally a firm jail term would be imposed. [ 35 ] However, I was persuaded by the case of R. v. Folino ,

(2005) ONCA CanLII, 40543 a decision of the Court of Appeal of Ontario, that such an approach may well be considered. Mr. Folino was charged with one count of child luring. The following statements from the court influenced my decision in this case and are found at paragraphs 24, 28, 29, 30 and 33 as follows: “In my view, in the circumstances of this particular offender, the sentencing judge overemphasized the punitive sentencing objectives of denunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility.

The sentence of nine-months incarceration thus reflects an error in principle justifying the intervention of this court. The sentencing judge did not refer to the expert evidence indicating that the appellant has taken responsibility for his actions and has been receiving ongoing psychological therapy as well as marital and family counselling. According to that evidence, the appellant has shown significant progress through this treatment in terms of learning how to better cope with stress.

Also not referred to by the sentencing judge is the evidence indicating that these proceedings have had a devastating impact on the appellant and his family. The appellant lost his well-paid job as a result of these proceedings, which created financial hardship for his family. The appellant was assaulted while in jail following his arrest and is extremely fearful of returning to prison. A psychiatric assessment of the appellant performed by Dr. R . Sirman indicates that any period of incarceration might “open him up to the risk of fatal dissociation culminating in possible suicide.” Dr.

Sirman repeats the opinion that was in evidence before the sentencing judge that any period of incarceration would have absolutely no rehabilitative value and that the appellant poses no risk of repeating this type of behaviour or any other socially unacceptable behaviour. According to Dr. Sirman: “[A]ny period of incarceration would be extremely harmful to Mr.

Folino ’s mental state.” Considering the mitigating circumstances of this offender, I am of the view that denunciation and deterrence in this particular case can be achieved by imposing a significantly longer custodial term than the nine-month term imposed by the sentencing judge and by imposing punitive conditions of house arrest.

To this end, I would impose a conditional sentence of 18 months.” Sentencing [ 36 ] In considering all the aggravating and mitigating factors in this case, along with the objectives of sentencing, I am satisfied that this is one of those rare cases where a conditional sentence can be fashioned that will meet all the objectives of sentencing. In my view, conditions can be fashioned to ensure that the conditional sentence is punitive in nature and will serve to deter others and denounce the conduct. [ 37 ] Furthermore, I accept Dr.

Sinha’s position that a period of incarceration, at this time, would seriously put in jeopardy the continued treatment and rehabilitation prospects of Mr. Durepos including the potential unfortunate circumstance of taking his life prematurely. [ 38 ] In my view, the need for a deterrent sentence for soft drug crimes does not loom so large that every opportunity for a house arrest sentence must be entirely dismissed. The rehabilitation of Mr.

Durepos warranted some consideration which leads me to conclude that a conditional sentence is appropriate in the circumstances. [ 39 ] Accordingly, I am imposing a conditional sentence for two years less a day plus a 12 month probationary period. There will also be a Firearms Prohibition Order pursuant to s. 109 (

a) of the Criminal Code of Canada for a period of ten years and under s. 109 (2) (

b) of the Criminal Code of Canada for life and an Order of Forfeiture for all items seized as previously agreed between the parties. The victim surcharge will be waived due to a lack of financial means. [ 40 ] The conditional s entence of imprisonment is to be served in the community pursuant to s. 742.1 of the Criminal Code subject to complying with the conditions of a Conditional Sentence Order as follows:

To reside at 12986 Route 105, Tobique Narrows, New Brunswick, E7H 4A7, and to remain in your place of residence at all times (24 hours a day) for the first twelve months and for the remaining portion of the sentence, you shall obey a curfew and you shall remain in your place of residence between the hours of 10:00 p.m. and 6:00 a.m. except for the purpose of: (

i) traveling to a place of employment by the shortest available route, to remain there during usual working hours and to return to your place of residence by the shortest available route; (ii) attending urgent medical or dental services; (iii) attending meetings with a supervisor; and, (iv) attending your psychiatrist’s office, your doctor’s office or the office of any community worker or counselor assigned to you to assist you with your mental illness; (

v) attending to other personal matters between the hours of 1:00 p.m. and 5:00 p.m. each Friday or such other weekly four hour period as may be allowed by a supervisor; (vi) at other times as agreed to in writing by your supervisor. Compulsory conditions of Conditional Sentence Order 742.3

(1) Requirements: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court (

c) report to a supervisor (

i) within two working days, or such longer period as the court directs, after the making of the Conditional Sentence Order, and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; (

e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation. Optional conditions of Conditional Sentence Order Abstain from (

i) the consumption of alcohol or other intoxicating substances, or (ii) the consumption and possession of drugs except in accordance with a medical prescription; Follow all treatment plans recommended by your psychologist or other qualified person as directed by supervisor for the purpose of addressing your mental state; Participate in any other treatment or program as recommended by your supervisor.

COMPLIANCE Any peace officer may attend your residence, without warrant, at any time to ensure your compliance with the conditions of the within order, at which time you are required to be personally present at the door of your residence when so requested.

Probation Order [ 4 1] Following the conditional sentence, you will be subject to a Probation Order for twelve months with the following conditions: Mandatory conditions Keep the peace and be of good behavior; Appear before the court when required to do so by the court; Notify the court or the probation officer within 48 hours of any change of address; Report to and be under the supervision of the probation officer immediately after the end of the Conditional Sentence and thereafter in the manner as directed by the probation officer; Alcohol, drugs, medications Abstain from the consumption and/or possession of non prescribed drugs; To follow any form of treatment plan recommended by the probation officer. [ 42 ] Counsel may now address the court as to any other conditions they believe should be added to this order. ______________________________ Paul E.

Duffie Judge of the Provincial Court of New Brunswick