R. v. Rusterholz Date:, 2015 BCPC 263

Citation: R. v. Rusterholz Date: 20150813 2015 BCPC 0263 File No: 38932-3 Registry: Courtenay IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. MELISSA ANNE PATTON PATRICK RUSTERHOLZ ORAL REASONS FOR SENTENCE RE RUSTERHOLZ OF THE HONOURABLE JUDGE DOHERTY Counsel for the Crown: M. Down Counsel for the Defendant: R. Miller Place of Hearing: Courtenay , B.C.

Date of Hearing: August 13, 2015 Date of Judgment: August 13, 2015 [1] THE COURT: Patrick Rusterholz is before the Court on Indictment 38932, and has pled guilty to the offence set out, namely;On or about the 31st day of January, 2014, at or near the City of Courtenay, in the Province of British Columbia, did unlawfully possessa controlled substance, to wit heroin, for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act. [2] The charge against the co-accused was stayed. [3] When arrested, the accused was in possession of point one gram, or 'points', of heroin times 19, plus 1.44 grams found on theground near his person.

From the circumstances and the packaging, it is clear that Mr. Rusterholz possessed the heroin for the purposeof trafficking. [4] Crown seeks a six months term of imprisonment and some ancillary orders. [5] A presentence report was prepared in aid of sentencing. Crown describes the report as "lukewarm".

I would agree. [6] Crown also points out that from the defendant's responses to the author of the presentence report, a clear inference is to bedrawn that this defendant continued to use drugs after his arrest and while on bail awaiting disposition of the matter presently before theCourt. [7] The presentence report reveals that Mr. Rusterholz is 34 years of age, comes from a good family and had a good upbringing,met the normal milestones, and had no significant problems in school or in the family home. He has a relationship with his co-accusedfor three or four years.

They both met at a Narcotics Anonymous meeting, and neither of them had clean time when their relationshipstarted. [8] In the past, Mr. Rusterholz has been involved with a negative group of associates. [9] He graduated from high school in 1999, took an automotive refinishing course, and since that time he has been working fulltime for the family business here in town, Willy's Collision. He is said to be an excellent employee and an outstanding painter. Mrs. Rusterholz, his mother, said her son is an essential part of the family business. [10] He has significant financial issues and owes money all around.

His plan is to file personal bankruptcy. He says he got himselfinto a financial quagmire by being irresponsible and not making payments. His drug use is another factor he identified as contributing tohis financial problems. [11] He has had problems with drug addiction for several years. In 2009, his parents paid for him to attend Edgewood TreatmentCentre. He was admitted to the Centre in November and attended the program, completing it in January of 2010. He stayed clean forsix months and then started using illicit drugs again. He started using heroin a year and a half to two years ago.

He said he startedselling heroin to help support his own drug use. After his arrest, he got into the methadone program. Residential treatment is notsomething he is interested in right now, as he claims he is too busy with work. [12] He has been supervised on an undertaking to appear since February 13, 2014. He has reported without incident since beingplaced on the order. He does not have a previous conviction. [13] Both counsel have provided books of authorities. Crown cites R. v. Logan, File Number 35981, March 11, 2014, a decision ofmy Brother Sutton, out of the Courtenay Registry.

In speaking of our community, Judge Sutton noted at page 7: . . . a sentence of incarceration will get noticed by the community and will best serve the sentencing principles of general deterrence anddenunciation and will get noticed by people of a like mind who become or because of circumstances are tempted to become involved inthe drug trade. [14] Judge Sutton's comment is a reflection of the view I hold about such cases in smaller communities. The point made has beenadopted by others and, in fact, while Judge Sutton does not say so, those words are mine from R. v. Airton. The Court in R. v.

Trinder,14805, out of the Sechelt Registry, May 7, 2008, refers to my case of R. v. Airton, 2006 BCPC 23 , 2006 BCPC 0023, atparagraph 25, wherein it was stated: Unlike in a larger centre, however, a sentence of an offender like Mr. Airton gets noticed. More significantly, I expect, his sentence willget noticed by those of a like mind. To that extent, general deterrence, in the case at bar is a significant factor. [15] This sentiment, as I say, has been adopted by many others in the smaller communities and has met with the approval of theCourt of Appeal. [16] In R. v. Cisneros, [2014] B.C.J.

No. 745 (B.C.C.A.), the Court varied a fine and probation sentence to one of six months. TheCourt noted at paragraph 9: In a long series of cases, the courts of this province have emphasized the social harms engendered by dial-a-dope operations.

At paragraph 9, the Court also notices and is referring to paragraph 22 of another case, R. v. Gill , 2013 BCCA 320 : It is well known that dial-a-dope operations enable a pervasive and rapid dissemination of illicit narcotics that wreak destruction to both the individuals who use them and to our community. I quote that only in part. [ 17 ] At paragraph 10, the Court in Cisneros says: Denunciation and deterrence are particularly important sentencing objectives in dial-a-dope cases. At paragraph 13: The case before us is a straightforward case in which the offender was involved in a busy dial-a-dope operation.

While he had no criminal record, this was not an isolated event, as he conceded in his sentencing submissions. There were no extraordinary circumstances that would take this case out of the ordinary sentencing range. [ 18 ] While in the case at bar the accused does not admit to continued trafficking, he certainly used drugs while on bail. [ 19 ] In R. v. Oates , 2015 BCCA 259 , the Court determined that a suspended sentence for a dial-a-dope operation, absent unusual circumstances, was unfit and substituted a six-months period of incarceration.

At paragraph 25 and 28, the Court notes: 25 It seems to me on reading the reasons for sentence that the judge was attracted to the view, expressed in at least one of the trial level decisions to which he referred, that repentance and rehabilitation after charges are laid in such an offence, supported by a suspension of sentence and terms of probation, communicates a beneficial message to the community.

This approach does not commend itself to me as a general rule of thumb, as it fails to reflect the other way of viewing this -- such an approach makes the recruitment of financially compromised individuals without a drug offence record attractive to the persons higher up in the illegal drug trade. Further, it lowers risk to the individual taking the decision to pursue, in the words of Franklin , "high profits... with little effort". 28 I do not see such circumstances here [speaking of exceptional circumstances or unusual circumstances]. Mr.

Oates was some years from his youth and was only involved for financial gain. He did not have the excuse of addiction, if addiction can be an excuse in such offences, as to which I make no comment in these reasons. On the other hand, he was actively within the justice system at the time of the offence in that he was on probation and therefore was bound to keep the peace, which he did not do. The business he involved himself in does damage to the community that is beyond our measurement. [ 20 ] I cite that paragraph for that proposition. [ 21 ] In R. v.

Voong , 2015 BCCA 285 , the Court commented on exceptional circumstances at paragraph 59: In

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

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 22 ] Suspended sentences were hard to get in cases in lieu of a CSO. Now that CSO has been eliminated, suspended sentences ought not to become the new norm. And the Court of Appeal makes this observation at paragraph 62: Thus, while it is an error to simply substitute a suspended sentence for a CSO, as they are not governed by the same principles, that does not end the inquiry into whether these non-custodial sentences are fit.

Paragraph 63: The issue then for each of these appeals becomes whether there were sufficient exceptional circumstances to justify going outside the normal range of sentence and imposing a non-custodial sentence. [ 23 ] To determine whether this accused might come within the consideration of exceptional circumstances, one should look carefully at Voong and apply it to the case at bar. In the case at bar, there is no criminal record. In Voong , the same applied.

[ 24 ] There were objectively identifiable steps toward rehabilitation. I see no such steps taken, and he seems resistant to taking such steps such as rehabilitation by way of a residential treatment program. [ 25 ] Remorse? I see no remorse except that for himself. [ 26 ] Harm? If he recognizes the harm done to his community, it is not clear to me. [ 27 ] Has he turned his life around? Well, using drugs after his arrest and before the sentencing suggests that it is a work in progress. Mr. Miller calls them slips.

Perhaps they are, but they are not helpful to his cause, namely persuading this Court that he gets it.

I see nothing close to warrant consideration of exceptional circumstances that would avoid imposition of a term of imprisonment. [ 28 ] In my view, considering the principles of sentencing including general and specific deterrence as well as rehabilitation as they apply to the individual before the Court, as well as the guidelines provided by the Court of Appeal in its recent decisions, a fit sentence for this accused is a term of imprisonment. [ 29 ] Stand up, sir. [ 30 ] You are sentenced to six months imprisonment. [ 31 ] There will be a DNA order. [ 32 ] Forfeiture as sought by the Crown in the list as submitted. [ 33 ] A ten-year firearms prohibition under s. 109(2). [ 34 ] The victim impact surcharge will apply and will be payable within thirty days. [ 35 ] Followed by, upon your release, probation of one year; keep the peace and be of good behaviour; you will report forthwith to a probation officer and thereafter as directed.

You will provide a residential address and not change it without seven days' notice in writing to your probation officer. Not to possess more than one cell phone; not to possess drugs except those prescribed, nor drug paraphernalia, no alcohol; and counselling as directed, specifically substance abuse assessment counselling. [ 36 ] And we will see where that takes us as the probationary period expires. [ 37 ] Are there any other issues for either counsel? [ 38 ] MS. DOWN: No. [ 39 ] MR. MILLER: If I may, Your Honour, I believe six months is the minimum required for Guthrie House in Nanaimo.

I wonder if Your Honour would be prepared to make a recommendation that he serve his time in that program. [ 40 ] THE COURT: Certainly. He is a man with no record. I understand he struggles with addiction. That might be the perfect place for him, and I would certainly be prepared to make that recommendation. [ 41 ] But he has to know, because in the Guthrie House, he has to know he has to be sincere about his rehabilitation, and I don't see that in the PSR, but I'm certainly willing to give him the opportunity to attend Guthrie House. [ 42 ] MR. MILLER: Thank you, Your Honour. (REASONS FOR SENTENCE CONCLUDED)