R. v. Derycke Date:, 2016 BCPC 291

Citation: R. v. Derycke Date: 20160923 2016 BCPC 291 File No: 36219 Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TYLOR MICHAEL JAMES DERYCKE REASONS FOR SENTENCE OF THE HONOURABLE JUDGE FLEWELLING Counsel for the Crown: M. Down Counsel for the Defendant: S. Runyon Place of Hearing: Campbell River , B.C. Dates of Hearing: July 28 and September 15, 2016 Date of Judgment: September 23, 2016

INTRODUCTION: [ 1 ] Mr.

Derycke has pleaded guilty to the following charges which arise from events that occurred in Campbell River, on May 20, 2016: • Possession of cocaine, heroin, fentanyl and marihuana, all for the purpose of trafficking. • Driving a motor vehicle on May 20, 2016, knowing that he was prohibited from driving. [ 2 ] He also pleads guilty to the charge of escaping from lawful custody on May 21, 2016. [ 3 ] The possession for the purpose of trafficking charges are a federal matter whereas the remaining two charges (drive while prohibited and escape lawful custody) are provincial matters. [ 4 ] Crown counsel on the federal matter seeks a custodial period of twelve months followed by a period of probation.

Her submission is that denunciation and deterrence are the primary sentencing objectives in the circumstances of this case. [ 5 ] Crown counsel on the two provincial matters seeks a custodial period of thirty days for the offence of escaping lawful custody to be consecutive to the other sentences. With regard to the drive while prohibited offence, he seeks the statutorily mandated minimum sentence of a $500 fine and a one year driving prohibition. [ 6 ] Counsel for Mr.

Derycke submits that a sentence of six months is an appropriate sentence for the federal matters and on the escape lawful custody offence a thirty day sentence to be served concurrent to the other charges. There is no issue with the sentence proposed for the driving while prohibited offence. [ 7 ] This is Mr. Derycke’s first drug offence although he has a record for other criminal offences. [ 8 ] In all the circumstances of this case, I must determine a fit sentence. One that reflects the circumstances of the offence, the personal circumstances of Mr.

Derycke and that also achieves the objectives of sentencing taking into account any mitigating and aggravating factors. [ 9 ] Mr. Derycke was selling heroin and cocaine laced with fentanyl. Fentanyl related overdose cases resulting in death have been rising at alarming rates in this Province and across Canada. I must also decide if this is a factor that should be considered in imposing a sentence. CIRCUMSTANCES: [ 10 ] At about 1 am on May 20, 2016, Mr. Derycke was pulled over for a traffic stop after cutting the corner at an intersection during a left turn. The RCMP officer saw Mr.

Derycke throw three plastic baggies out the passenger window onto the ground. He asked Mr. Derycke to step out of the vehicle and saw a number of $50 and $20 bills fall off the driver’s seat. Mr. Derycke was searched and found to have $180.00 in cash. The three baggies were recovered and contained the following: • Baggie No 1: Twenty eight spitballs weighing 6.19 grams. Three samples were taken. Two samples contained heroin and fentanyl and the third contained heroin, fentanyl, cocaine resin and acetyl fentanyl. • Baggie No. 2: Five spitballs containing cocaine weighing 1.38 grams.

One sample was sent and contained cocaine. • Baggie No. 3: Six spitballs weighing 1.75 grams. Two samples were taken. One contained cocaine and the second a mixture of cocaine and fentanyl. [ 11 ] Mr. Derycke’s vehicle was searched. The police found a cell phone and a key card for a room at the Coast Hotel. A number of calls came in on the cell phone consistent with a dial-a-dope operation. One of the callers said “spare a single of fentanyl for $20?”. Another said “I’ve got a sale for you - 140 hard and 60 soft”.

I am advised that “hard” refers to crack cocaine and “soft” refers to cocaine. [ 12 ] A further search of the vehicle - a 2004 Chevrolet Malibu registered to Mr. Derycke’s girlfriend, Maria Love - resulted in seizure of the following additional evidence: • Cash in the amount of $90 Canadian and $20 US; • A bag of marijuana in the console weighing 14 g; • A 16 inch long knife; • A crowbar located behind the driver's seat. [ 13 ] Ms.

Love’s 2004 Malibu was also seized and is the subject of the Crown's forfeiture application. [ 14 ] Upon obtaining a search warrant, the police attended at and searched the hotel room at the Coast Hotel. Upon entering the hotel room they found Ms. Love present along with three dogs. They searched Ms. Love’s purse and located a pink can of pepper spray as well as a collapsible baton.

[ 15 ] During the search of the hotel room, the police also found and seized a quantity of drugs, $455 dollars in cash, four scales, clear sandwich bags including a number with the corners cut (typically used to make spitballs), a large knife in a leather sheath, two collapsible batons, three electronic personal tablets, and an IPhone. [ 16 ] In total, from the car and the hotel room, the police seized 9.31 g of heroin; a little over 23 g of cocaine, six bags of marijuana, mushrooms, prescription bottles with various pills and, in one case, three morphine pills.

The police also located a naloxone kit which is used in the event of an opioid overdose. [ 17 ] The police also recovered mail in the name of Maria Love addressed to an address in Grande Prairie, a monthly rental agreement with Ironwood Self-Storage also in Ms. Love’s name. The police also obtained the hotel statement indicating that Ms. Love and Mr. Derycke arrived Thursday, May 5, 2016 and were expected to depart on Tuesday, May 31, 2016. [ 18 ] Crown’s submission was that the value of the drugs seized was several thousand dollars.

The evidence sought to be introduced by Crown consisted of statements made to her from a number of police officers as to the value of these drugs if sold on the street. Mr. Derycke’s counsel objected to that evidence being admitted on the basis that it was expert opinion evidence and was inadmissible hearsay. Furthermore, no notice had been provided that expert evidence would be provided to establish the value of the seized drugs. [ 19 ] I agree that the evidence sought to be admitted by Crown by way of oral hearsay statements and without notice of expert opinion is not admissible.

This is properly the subject of expert opinion as it is not something that I would know unless assisted by someone with experience or expertise in this area. [ 20 ] Mr. Derycke provided a warned statement to the police at the Campbell River detachment. A transcript of that statement is evidence at this sentencing hearing. [ 21 ] It is clear from reading the transcript that Mr. Derycke struggles with a drug addiction and that he was going through withdrawal from heroin at the time. [ 22 ] The day after he gave his statement, Mr.

Derycke requested medical assistance for opiate withdrawal and was taken by Constable Clelland to the emergency department at the Campbell River Hospital. He was assessed and treated and as he was being escorted by Constable Clelland back to the police cruiser outside the hospital, Mr. Derycke pulled away and fled. He was found and arrested approximately four minutes later. This is the basis for the charge of escaping from lawful custody. [ 23 ] Mr. Derycke told the police that he sold drugs because he needed money to make his girl happy and help support his brother and sister.

He also sold drugs because “he needed to be someone”. He indicated that he was paid to come from Grande Prairie, Alberta to Campbell River and he could not say no. When asked why Campbell River, he responded “…they wanted me here...this town makes money…” [ 24 ] He advised the police that he picked up pre-packaged bags of drugs and was told to bring back a certain amount of money. However, there were a number of scales found in Mr. Derycke’s hotel room as well as materials clearly used for packaging drugs and I infer from that evidence that Mr.

Derycke was involved in packaging the drugs he sold. [ 25 ] This is an organized operation. The main “boss” has the primary cell phone and calls relating to individuals wanting to purchase drugs go to the primary cell phone and are then forwarded to the lower level traffickers such as Mr. Derycke who are on shift or working at the time.

When something goes wrong such as an arrest, the call forwarding stops immediately and the cell phone in the possession of the lower level trafficker will stop receiving calls making it challenging for the police to investigate. [ 26 ] The drug business in Campbell River is apparently very lucrative. Mr. Derycke told the police that he made $20,000 a week. He also described the drug trade as a growing market in which the drug addict needs bigger and more frequent “hits”.

As he said: “All you got to do is get them to do it once… they’re sick for it’s a fucking vicious fucking cycle.” [ 27 ] I note the apparent contradiction in this statement and his assertion to the police that he just sold enough so that he would not be sick. I find that his motives were varied but initially began out of a desire to make something of himself and earn a substantial amount of money. He became addicted, again, to heroin and had access to all he needed plus the money. [ 28 ] It is apparent that he is a lower level or middle level trafficker in a sophisticated operation.

As is so often the case, it is the low to mid-level trafficker that is arrested whereas the individuals at the higher level seem to elude capture. [ 29 ] I was provided with a report from the B.C. Coroners Service summarizing the illicit drug related deaths that have occurred in B.C. between January 1, 2012 and May 31, 2016 and for which fentanyl was detected, whether alone or in combination with other drugs. [ 30 ] The rates have risen dramatically. In 2012 they accounted for 5% of drug deaths but this has risen to 31% in 2015 and 60% for the first five months of this year. [ 31 ] The B.C.

Centre for Disease Control published an

article in the July/August 2015 edition of the B.C. Medical Journal stating: Fentanyl is a synthetic opioid that is far more potent than morphine and heroin. …illicitly produced fentanyl may be sold as pills or powder, or it may be mixed with heroin, oxycodone, and occasionally stimulants. While some people intentionally seek out fentanyl for abuse, others may consume it unintentionally. Given the potency of fentanyl and the highly variable doses in illicit substances, the risk of overdose is considerable, especially for those who are opioid naïve. [ 32 ] In April 2016, the B.C. Provincial Health Officer, Dr.

Perry Kendall, declared the surge in fentanyl related overdoses a public health emergency.

[33] Fentanyl is mixed with other drugs such as heroin and cocaine primarily because it is less costly to produce and reduces theoverall cost of producing the drug. It is synthetic and can be manufactured easily and at a lower cost thereby substantially increasing theprofits of drug traffickers. In addition, some drug users think that fentanyl will give them a bigger high. MR. DERYCKE’S CIRCUMSTANCES: [34] Mr. Derycke is twenty three years old and was born to parents who were drug addicts. He spent his early years in foster care.

He fled an unhappy and abusive life at the age of twelve when he followed his sister who ran away from the foster home. By the age offourteen, he was addicted to heroin and although he lived for a time with a relative, was asked to leave as a result of his addiction. Hefound himself homeless and in custody as a young offender. He was able to turn things around for a period of time when he moved toGrande Prairie, Alberta and found employment on the pipeline.

Unfortunately, his return to drug use resulted in loss of employment. [35] At the time of his arrest for the current offences, he faced outstanding warrants from Alberta for a number of charges includingassault, possession of stolen property over $5,000, driving while disqualified and a number of breaches of probation charges. [36] He has a criminal record dating from 2011 as a seventeen year old youth. He has convictions for assault, breaches of probationorders, driving offences and mischief. He has no prior drug related offences.

THE LAW: [37] I am mindful that a fit sentence must reflect sentencing objectives of denunciation, deterrence, separation of the offender fromsociety and rehabilitation. The weight given to each of the objectives varies depending on the circumstances of the offender and theoffence. [38] It is a highly individualized process and should reflect the needs and current conditions of and in the particular communitywhere the crime occurred: R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500. [39] General deterrence and denunciation are the primary objectives in sentencing drug traffickers.

The normal range of sentencefor a first offence dial-a-dope drug trafficker is between six to nine months incarceration, and upwards to eighteen months in some cases,absent exceptional circumstances: R. v. Voong, 2015 BCCA 285, para. 18, 44. [40] A sentencing judge has wide discretion but generally it is accepted that a fit sentence is one that falls within the range of similaroffences involving similar offenders. Ranges of sentences are guidelines only and do not establish hard and fast rules.

That being said, asentence that falls outside the regular range may still be an appropriate sentence if it satisfies the principles and objectives of sentencing:R. v. Nasogaluak, 2010 SCC 6, para. 44. [41] A fit sentence must not be unduly long or harsh, but proportionate to the gravity of the offence and the degree of responsibilityof the offender.

It should be consistent with sentences given to offenders for similar offences in similar circumstances and all availablesanctions, other than jail, should be considered. [42] Whether a drug trafficker is selling purely for profit or to fund a drug addiction is one consideration in determining a fitsentence as it contextualizes the degree of moral blameworthiness of the offender. [43] Both counsel provided a number of case authorities. [44] The Court of Appeal in Voong, heard appeals from four sentences imposed for drug trafficking offences. Mr. Taylor wasinvolved in selling drugs through a dial-a-dope operation.

When arrested, he was in possession of 9 grams of cocaine and $110 dollars. He was twenty five years of age and a drug addict who was selling drugs to fund his own addiction. He had a minor criminal record formischief and two breaches of an undertaking. At the time of sentencing, Mr. Taylor had taken steps to rehabilitate himself and was on amethadone program although he had still been using drugs some ten months after the offence.

The suspended sentence given in the trialcourt was set aside and a six month period of custody followed by one year probation was substituted. [45] Crown counsel also relied upon a number of other cases. [46] In R. v. Hambly, 2016 BCPC 215, the accused was found in possession of 3.18 grams of heroin combined with fentanyl and alittle over two grams of crack cocaine. He was a First Nations man and suffered from drug addiction. At the time of sentencing, he hadrecently completed a treatment program and was gainfully employed.

He had no prior record for drug offences. [47] In the course of reasons, the judge referred to the extreme danger posed by fentanyl - a drug that is a hundred times strongerthan morphine and twenty times stronger than heroin. Mr. Hambly was apparently not aware that the heroin had been mixed withfentanyl. Notwithstanding that fact, the judge was of the view that Mr. Hambly had exhibited a degree of recklessness. The courtimposed a sentence of six months followed by two years’ probation. [48] In R. v.

Shusterman, 2012 BCSC 362, the accused pleaded guilty to possession of 29 grams of crack cocaine for the purpose oftrafficking. He was twenty two years old at the time of the offence and was selling drugs purely for profit. He had a lengthy criminalrecord including break and enter and a number of violent offences but no prior record for drug offences. Mr. Shusterman was sentencedto one additional year of jail after consideration to a 2:1 credit for three months of pre-sentence custody. [49] Counsel for Mr. Derycke also provided a number of case authorities. [50] In R. v. Gill, 2015 BCSC, Mr.

Gill pleaded guilty to possession for the purpose of trafficking. He was involved in a dial-a-dopeoperation and had drugs valued at $1,670 plus $885 dollars. He was young - only eighteen years of age. He was selling drugs purely forprofit and had no criminal record. At the time of sentencing, he had turned his life around and now held stable employment, had familysupport and was involved in a stable relationship.

[ 51 ] His exceptional circumstances warranted a departure from the usual range of sentence of six to eighteen months to give effect to “the strongly countervailing principle of rehabilitation, which is well on the way to being achieved and should not be frustrated.” He was given a sentence of ninety days to be served intermittently, followed by probation. [ 52 ] In R. v. Parenteau , 2016 BCPC 88 , Mr. Parenteau pleaded guilty to selling cocaine on three occasions to an undercover officer. This was a street level sale and not a sophisticated dial-a-dope operation.

The cocaine weighed 1.33 grams with a total value of $170 dollars and he was described by the sentencing judge as a low to mid-level trafficker. He had a prior criminal record but no prior drug offences and was on probation at the time of the current offences. He was addicted to crack cocaine, heroin and alcohol. [ 53 ] He was sentenced to 122 days in jail followed by a period of probation for eighteen months. [ 54 ] In R. v. Ameeri , 2016 BCSC 1187 , Mr. Ameeri pleaded guilty to trafficking in heroin and cocaine.

Following execution of a search warrant, police located $10,200 dollars in cash along with 4.4 grams of crack cocaine, 26.23 grams of heroin, and 5.6 grams of methamphetamine. This was his first drug offence although he had a prior record. He was young - twenty three years of age when the offences were committed - but was solely motivated by profit. He had not expressed remorse or understanding of the harm to society.

However, in the three years between the date of the offence and sentencing, he had been law abiding, secured full-time employment and was behaving more responsibly. [ 55 ] The sentencing judge declined to impose a suspended sentence and felt that such a sentence would “over-emphasize rehabilitation considerations to the detriment of the primary objectives of denunciation and deterrence…”. In considering the harsh immigration consequences of a sentence exceeding six months and that a lengthier sentence would end the successful steps Mr.

Ameeri had taken, a sentence of ninety days followed by probation for six months was imposed. [ 56 ] In R. v. Rusterholtz , 2015 BCPC 263 , the accused was thirty four years old, struggled with drug addiction and exhibited no remorse for trafficking heroin. He had been found in possession of approximately two and a half grams of heroin. He had no prior criminal record and my brother Judge Doherty acceded to Crown’s submission and imposed a six month period of custody and one year probation. DEFENCE POSITION: [ 57 ] Counsel for Mr.

Derycke asks me to consider the following in mitigation of his sentence: • He pleaded guilty at an early stage; • He is an addict as opposed to selling drugs purely for profit; • He did not know that the heroin he was selling was laced with fentanyl; • His relatively young age; • He was recent to this drug trafficking ring and at best only a low to mid-level trafficker. [ 58 ] She reminds the court that unlike a number of the offenders who received sentences at the lower end of the range, Mr.

Derycke was detained after arrest and has not had an opportunity to prove himself by taking steps to turn his life around. [ 59 ] She asserts that Mr. Derycke has treatment options and points to the now outdated letter from Vision Quest accepting him into their residential treatment program. Mr. Bach, Mr. Derycke’s stepfather, has offered to allow Mr. Derycke to live with him as long as he remains sober. Ms. Love currently lives there. [ 60 ] Rehabilitation should be considered in this case and is not served by a lengthy custodial sentence.

She submits that a sentence of a further six months is far outside the reasonable range for Mr. Derycke and this offence. [ 61 ] She submits that probation would be of little benefit and points to prior breaches of such orders. Mr. Derycke is motivated and ready to seek treatment and ultimately, to find employment. The thrust of her argument is that Mr. Derycke must make the decision himself to seek and undergo treatment, not a court order that compels him to do so.

CROWN POSITION: [ 62 ] Counsel for the Crown argues that the one year sentence proposed is within the range established by the case law and confirmed in Voong . She points out that the cases in which a sentence at the lower end of the range was imposed, the offender had no, or a minimal, prior criminal record. Furthermore, the quantity of drugs involved was significantly less in those cases than are present here. [ 63 ] She also highlights that the heroin was laced with fentanyl and points to the danger to the public who use drugs without knowing that they may contain an unknown amount of fentanyl.

She argues that Mr. Derycke must have known or was reckless as to that knowledge and must be considered in the context of this offender and this offence. DISCUSSION: [ 64 ] Mr. Derycke was selling drugs for profit. I accept that he is an addict and that the money he earned from selling drugs and the access to those drugs fuelled his addiction. However, it is clear that he was motivated by a desire to make money and the need to be somebody, to feel important. [ 65 ] The current fentanyl crisis is so well known that Mr.

Derycke must have known that there was, at minimum, a risk that the drugs he was selling were laced with fentanyl. He denied that the heroin he was selling contained fentanyl but I note that one of the callers to his cell phone asked for fentanyl. During his statement to the police he acknowledged that he was aware that fentanyl is killing

many people. [66] I do not consider his professed lack of knowledge that fentanyl was mixed with the drugs he was selling, to be convincing, orthat it should be treated as a mitigating factor. I find the comments of the court in R. v. Sidhu, 2009 ONCA 81 , 94 O.R. (3d)609, OCA at paragraph seventeen to be particularly apposite to those who sell drugs: The trial judge considered the respondent’s wilful blindness to be a mitigating circumstance. With respect, we disagree.

As a matter ofprinciple and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lowersentence than if they actually learn the nature and quantity of the substance they are importing. In assessing degrees of moralblameworthiness, we see no meaningful distinction between the two. [67] Fentanyl is a

Schedule I drug. Heroin and cocaine are

Schedule I drugs.

Schedule I drugs attract greater punishment and arerecognized as causing tremendous harm to the public. While I accept that there is not a higher sentence prescribed by Parliament forselling fentanyl or drugs containing fentanyl, this court can consider the consequences of selling fentanyl or drugs containing fentanyl.

This is simply part of the contextualized assessment that a sentencing judge must embark on to determine a fit and appropriate sentence. [68] Courts across the country have made many references over the years to the “scourge” of hard drugs such as heroin and cocaineand the human cost and devastation that those drugs cause. In determining where in the range of a fit sentence Mr.

Derycke would fall, Iam entitled to consider the dramatic rise in fentanyl related overdose deaths and the public health emergency that has been declared inBritish Columbia and in other provinces. [69] I have reviewed all the cases provided by counsel. The case authorities provided by defence involved offenders who hadestablished exceptional circumstances (i.e. severe immigration consequences, substantial steps in rehabilitation, etc.) or involved streetlevel sales or much smaller quantities of drugs. [70] I am not convinced that Mr.

Derycke is remorseful for selling dangerous drugs to the public or the significant societal harm thatresults. Rather, his remorse is for himself and the consequences his own addiction have had on the quality of his life. Mr. Derycke hada number of outstanding warrants for his arrest out of Alberta at the time of these offences and he has a criminal record that is notinsignificant. Mr. Derycke agreed and was financed to come to Campbell River as part of an organized drug operation. He wasmotivated in large part by money and ego. [71] The mitigating factors in this case are Mr.

Derycke’s early guilty plea and his relatively young age of twenty three years. Hehas no prior record for drug offences. [72] In the context of this case, the sentencing objectives of general and specific deterrence must be given primary consideration anda clear message sent that drug traffickers cannot be wilfully blind to the nature and consequences of the drugs they are selling.

I am alsoof the view that a sentence in a smaller community such as Campbell River has a greater impact in deterring others who are recruited bydrug trafficking operations to sell drugs here. [73] Absent exceptional circumstances, they can expect to be sentenced to a period of incarceration, even for a first drug offence. When a drug trafficker is part of an organized and sophisticated operation, as opposed to an addict selling very small quantities of drugsat the street level purely to support his or her own addiction, the sentence should be adjusted upwards to reflect the need for generaldeterrence.

CONCLUSION: [74] Mr. Derycke is sentenced to a period of twelve months for the offence of possession of heroin, cocaine, fentanyl and marihuanafor the purpose of trafficking. [75] His sentence for the escape from lawful custody is thirty days. The sentence in total should not be unduly lengthy or harsh andaccordingly, this sentence will be concurrent. [76] He will be given credit at 1.5:1 for pre-sentence custody of 126 days plus 63 days enhanced credit for a total of 189 days.

Thatis 176 new days to serve in custody. [77] For the offence of driving while prohibited, he is sentenced to the mandatory minimum fine of $500 and a one year driveprohibition. [78] He will have a period of probation for three months solely for the purpose of assisting him reintegrate into the community andto undergo any counselling that may assist him. Conditions will be the statutory conditions, he is to report initially and thereafter asdirected and he is to undergo any counselling or programs recommended by his probation officer. [79] There will be ancillary orders.

There will be a mandatory weapons prohibition under s. 109 of the Criminal Code and I amsatisfied that an order that he provide a sample of his DNA is appropriate and I so order. [80] Mr. Derycke has been incarcerated for a period of time. He has not been gainfully employed for some time. I am not imposingthe surcharges and do so in keeping with the decision of my sister Judge Senniw in R. v. Barinecutt, 2015 BCPC 0269. [81] He will have one year after his release to pay his fine for the offence of driving while prohibited. [82] I recommend that Corrections refer Mr.

Derycke to the Guthrie House program and that their assessment to facilitate thatreferral be conducted as soon as possible. This young man’s ability to overcome his addiction and past trauma will be facilitated by sucha referral and it would be most unfortunate if he was not able to benefit from this treatment.

BY THE COURT: ______________________________________ The Honourable Judge Flewelling