) Ms. S. Cawley, ) for the Crown HER MAJESTY THE QUEEN ) ) - v. -, 2010 MBPC 29

R. v. Petrowski , 2010 MBPC 29 THE PROVINCIAL COURT OF MANITOBA BETWEEN: ) Ms. S. Cawley, ) for the Crown HER MAJESTY THE QUEEN ) ) - and - ) Mr. P. Edgett, ) for the Accused TREVOR MICHAEL PETROWSKI, ) ) Sentence delivered Accused. ) May 4, 2010 _____ EXCERPT FROM SENTENCING HEARING : PRESTON, P.J. Trevor Petrowski has entered guilty pleas to two charges: trafficking four rocks of crack cocaine to an undercover officer on March 18th, 2008 and breaching an undertaking on January 14th, 2009 by being 47 minutes outside his court-ordered curfew. Crown counsel urged the court to jail Mr.

Petrowski in a federal penitentiary for a period of two years. Defence counsel recommended that a conditional jail sentence be imposed. The issue for the court is a fit and proper jail sentence for Mr. Petrowski. The Crown relied on two sentencing precedents. The first is the Garcia decision, an unreported 2002 decision of my former colleague, Webster, P.J. Mr. Garcia was jailed for two years less one day for selling one rock of crack cocaine to an undercover officer as part of a “dial-a-dealer” operation. Mr. Garcia had no criminal record and was on bail for 14 months without reinvolvement.

However, he was unemployed at the time of the sentencing hearing and showed little remorse. Leave to appeal that sentence was denied by the Court of Appeal. The second sentencing precedent relied on by the Crown is the Manitoba Court of Appeal decision of Rocha , 2009, 6 Western Weekly Reports at page 37, which upheld a four year jail sentence for a "midlevel" trafficker of ounces of crack cocaine. These sentencing precedents confirm how seriously our courts take the trafficking of crack cocaine. Crack cocaine is an extremely dangerous and highly addictive drug. Simply put, it ruins lives.

Sentences imposed upon traffickers of crack cocaine must both denounce and deter. And what I mean by that, Mr. Petrowski, is they have to tell you how terrible it was that you were dealing that substance and try to deter you, try to prevent you from ever doing that again, and sending a message to the public that no one can deal crack cocaine without severe consequences. Sentencing is an individualistic process and rightly so. As is often the case, both the Garcia and Rocha decisions are factually distinguishable. I must examine the aggravating and mitigating factors as they pertain to Mr.

Petrowski, bearing in mind that a jail sentence is conceded by both counsel to be appropriate in this circumstance, to decide the length and type of jail sentence to be imposed. The Crown has ably elucidated a number of concerns. It turns out that during the trafficking incident, a 16-year-old youth was involved in the enterprise with Mr. Petrowski. The undercover officer described this young man as appearing to be "19-year-old youth". Mr. Roitenberg pointed out that there is no proof that Mr. Petrowski knew the youth was 16. It is clear, however, that Mr.

Petrowski's sister and her boyfriend, both of whom were 16 at the time, were both involved. Furthermore, Mr. Petrowski was dealing crack from inside his parents' house. These are all aggravating circumstances. Also, Mr. Petrowski's sole motivation was greed. He forthrightly explained to the probation officer that he had switched from car theft to drug selling for profit. The Crown also pointed out that Mr. Petrowski, although still a young man, has amassed a lengthy criminal record. At the time he trafficked the drugs, he was on probation for assault. He breached his curfew while on bail and while on probation.

He has four separate instances of convictions registered while on probation. He has six breaches of court orders on his record. In other words, he has a history of not abiding by various court orders. Crown argued that Mr. Petrowski will, therefore, not abide by court orders forming part of a community-based conditional sentence. A pre-sentence report was filed as an exhibit. The Crown classified the pre-sentence report as negative. Mr. Petrowski is said, in

the report, to minimize his responsibility and is assessed as a "high risk" to re-offend. In short, the Crown argued that the court jail Mr. Petrowski in a federal penitentiary and in so doing, denounce the sale cocaine, deter Mr. Petrowski and others from selling drugs and protect the public from someone who is at a high risk to re-offend. Defence counsel took issue with those portions of the pre-sentence report pertaining to the risk assessment. I allowed both counsel to cross-examine the maker of the report, an honorary probation officer.

The honorary probation officer acknowledged that she completed the certification of the training to use the risk assessment tool on January 27th, 2010. Her interview with Mr. Petrowski took place on December 23rd, 2009, prior to her certification. Be that as it may, the risk assessment tool in question works on a system of demerit points, each point assessed representing a risk. The higher a person's demerit point tally, the higher the risk assessment. For instance, the "high risk” category ranges from 20 to 30 demerit points. According to the risk assessment tool used, Mr. Petrowski amassed 24 points.

Thus, the probation officer assessed Mr. Petrowski at a high risk to re-offend. It is instructive the examine how the assessment of Mr. Petrowski's risk occurred. For instance, Mr. Petrowski was assessed a demerit point for naming only two friends who were not involved in the criminal justice system. If he had named three friends who were not involved in the criminal just system, he would not have received a demerit point. He effectively received no credit for having two law-abiding friends.

Similarly, he was assessed as a risk and received a demerit point for the “leisure” category because he was not involved in any kind of organized social activity, such as joining a gymnasium. Similarly, he was assessed a demerit for being suspended from school some years ago. The probation officer agreed with defence counsel that a risk assessment is akin to a "best guess" as to Mr. Petrowski's future behaviour. What emerges from an analysis of these categories in the risk assessment is that the risk assessment grid is a tool used by a probation officer to try to predict a person's future prospects.

A risk assessment, in this context, is but a guide for the court and not necessarily determinative of the issue of risk. In the context of a pre-sentence report, it is not a good idea to bind an overall assessment of risk solely to the risk assessment tool. However, after hearing submissions from both counsel, I declined to excise references in the report to the risk assessment performed by the probation officer and the "concerns" expressed about the risk factors as they pertained to Mr. Petrowski. In this instance, any such references are matters to weigh carefully but not to excise.

When I review the entire pre-sentence report, I cannot help but conclude that there exist other mitigating factors which the probation officer, in her thorough examination of Mr. Petrowski's background, has also highlighted. They include the fact that Mr. Petrowski has, with one unfortunate exception, complied with fairly stringent bail orders for over two years. He secured employment as a mechanic's helper and supplementary casual employment as a renovator. He is involved in a healthy relationship with his girlfriend, who attends university and who, along with her mother, is keeping him on the right track.

He is no longer drinking. He recognizes that his victims were the people he sold drugs to. Collaterals contacted by the probation officer all confirm that Mr. Petrowski has chosen to distance himself from negative peers, and his sister describes him as "caring uncle" to her five-year-old daughter. About a year after he was released on bail, Mr. Petrowski was arrested in a friend's car, 47 minutes past his court-ordered curfew. I agree with the probation officer that Mr.

Petrowski's explanation that he waited for his friend's car to warm up because it was too cold to take the bus home shows limited insight into the importance of obeying court orders. However, since that incident almost 16 months ago, he has obeyed his bail orders. In this instance, the mitigating features of a young man of 24 with Mr. Petrowski's lengthy criminal record are that for over two years he has, but for one day, abided by fairly stringent bail conditions, found steady work and has a current stable relationship.

He has, in fact, shown to this court's satisfaction that he is able and willing to abide by court-ordered conditions at this point in his life. I do not conclude, nor do I agree with the risk assessment that Mr. Petrowski is a current high risk to re-offend. The Crown has asked me to jail Mr. Petrowski for two years. When I examine the type of trafficking in question, Mr. Petrowski can be classified as a low-level dealer. Sentences for trafficking small amounts of crack cocaine range from jail in a provincial institution to jail by way of a conditional sentence, or jail in a penitentiary.

Indeed, the Manitoba Court of Appeal elucidated such a range of sentences for this type of offence in the Kosanouvong decision, 2002 MBCA 144 (CanLII) , 2002 M.J. No. 428. Taking into account all the aggravating and mitigating factors and the preeminent principles of deterrence and denunciation, the appropriate sentence for this young man on the trafficking charge is two years less one day. I sentence Mr. Petrowski to imprisonment for two years less one day and order that the sentence be served in the community.

A conditional sentence is consistent with the fundamental purpose and principles of sentencing in these circumstances. In fact, he has shown over the past year that his being able to serve his jail sentence in the community would not endanger the safety of the community. The jail sentence will be subject to you, Mr. Petrowski, complying with all of the following conditions: Keep the peace and be of good behaviour. Appear before the court when required to do so.

Report to a conditional sentence supervisor within two working days after the making of this conditional sentence order and thereafter when required by the supervisor and in the manner directed by the supervisor. Remain within the Province of Manitoba unless written permission to travel outside the province is obtained from the court or the conditional sentence supervisor. 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.

Abstain absolutely from the consumption or possession of alcohol or other intoxicating substances or non-prescription drugs. Abstain from owning, possessing or carrying a weapon, except during the course of your employment.

Live at this address. You still, I take it, live at 301 Redwood? THE ACCUSED: Yes, I do, Your Honour. THE COURT: Live at this address, 301 Redwood Avenue, Winnipeg, Manitoba. Do not live at a different address unless your conditional sentence supervisor has first given you written permission to move to that address. Attend, participate and complete counselling, treatment, assessments, or programming as directed by your conditional sentence supervisor. Be bound by an absolute curfew, which means that you must remain inside your residence 24 hours a day, seven days a week, and for the purpose of this order, your residence includes your house and your yard, with the following exceptions: (

a) to attend scheduled meetings with your conditional sentence supervisor; (

b) to attend medical emergencies involving yourself; (

c) to attend any counselling, assessments, treatments or other programming as approved, in advance, by your conditional supervisor; (

d) to attend for regularly scheduled medical or dental appointments with the prior written approval of your conditional sentence supervisor; (

e) to attend at your employment with Triple 0 Transport and with Mr. Thomas Lee or such other employment as approved, in advance, by the conditional sentence supervisor; (

f) for one six-hour period once per week or two three-hour periods per week, as approved in advance, in writing by your conditional sentence supervisor for the purpose of attending to your personal needs; (

g) with advance permission in writing from your conditional sentence supervisor, for the purpose of attending funerals, visiting sick relatives in hospital and other such similar purposes that the court cannot anticipate at this time; (

h) to attend to the Winnipeg Police Service identification office at the Public Safety Building, 151 Princess Street, Winnipeg, Manitoba within the next 60 days for the purpose of providing a DNA sample pursuant to an order of this court; (

i) to travel directly to and from the places that have been previously referred to as exceptions to your curfew. Next condition, if you are away from your residence, you must carry a copy of this order with you and show it to any peace officer who stops or questions you. Next, if you are away from your residence with the advance written permission of the conditional sentence supervisor, you must carry with you such written permission and you must show that written permission to a peace officer upon request. Allow the police to enter your home and to search your home no more than twice per month.

Allow the conditional sentence supervisor into your home upon request, so he or she can ensure that the conditional sentence is being obeyed. Maintain a land line telephone. Do you have a land line telephone? THE ACCUSED: No, I do not. THE COURT: Okay. Who has a phone in your house? THE ACCUSED: There is my mother. She has her phone. THE COURT: Is that a land line telephone? THE ACCUSED: No, it is not. THE COURT: What is your mother's cell phone number? THE ACCUSED: 298-3317. THE COURT: All right. THE ACCUSED: But sometimes, sometimes she doesn't have minutes on it because it is a pay-as-you-go phone.

THE COURT: I am going to order that within the next 30 days that you obtain and maintain a land line telephone. All right? THE ACCUSED: All right. THE COURT: Do not change your phone number without advance written approval of your conditional sentence supervisor. Attend to the door or answer your telephone in compliance with the conditional sentence supervisor or their designate or the local police authority for curfew checks.

Do not possess or own or carry any cell phone, Blackberry, pager, or such similar mobile electronic communication device, except for employment purposes, if approved in advance, in writing by your conditional sentence supervisor. Do not subscribe to a call forwarding phone service on your land line telephone. And lastly, provide a breath sample or submit to drug testing on reasonable demand of a peace officer or the conditional sentence supervisor. Now, there is a lot of orders in there, sir. I have tried to speak as clearly as I can. Do you understand those orders? THE ACCUSED: Yes, I do, Your Honour.

THE COURT: All right. What I want to talk to you now is about the possibility of your breaching those orders. If you were to be foolish enough to break any of those court orders, you face the prospect of the rest of your conditional sentence being turned into a jail sentence. You will appear back in front of me, and I'm sure Mr. Edgett or Mr. Roitenberg will reinforce that, that the Crown will be asking that your conditional sentence, if you breach it, be converted to a jail sentence, and you could spend the balance of your sentence in custody, in jail. Do you understand? THE ACCUSED: Yes, I do, Your Honour.

THE COURT: I am further ordering that you submit, within the next 60 days, a sample of your DNA to the Winnipeg Police Service for entry in the DNA forensic databank. I am also ordering the forfeiture of all seized items. I am also prohibiting you for ten years from owning or possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substances pursuant to

Section 109 of the Criminal Code . And finally, the sentence for the breach will be a one month jail sentence to be served in the community concurrently with the trafficking sentence and on the same conditions as they can apply for a month. THE ACCUSED: So that's -- I have 25 months? THE COURT: No, it's running at the same time. THE ACCUSED: Okay. THE COURT: It is running -- it is a concurrent sentence. It runs at the same time, starting today. All right? THE ACCUSED: Okay. All right. THE COURT: And I just wonder if there is any questions or clarification, if I have covered ... MS.

CAWLEY: I just wish for Your Honour -- THE COURT: Yes. MS. CAWLEY: -- to consider a community service work order. I'm sure you've turned your mind to it. Maybe you can just articulate what your view on that is. THE COURT: Yes. MS. CAWLEY: Of course, from the Crown's perspective, it is a way to give back to the community. I appreciate that Mr. Petrowski is working, but a lot of people work, and they do manage to give back to the community. THE COURT: Right. MS.

CAWLEY: Secondly, I am asking that you consider a no contact communication order with the young person that he used to deal the crack cocaine, and that individual's last name is Savoy, S-A-V-O-W. THE COURT: S-A-V-O-W. MS. CAWLEY: First name, Matthew, S-A-V-O -- sorry, S-A-V-O-Y, the first name is Matthew, M-A-T-T-H-E-W. THE COURT: All right. First of all, Mr. Edgett, can you inquire with respect to the no contact order that I'm about to make. MR. EDGETT: Yes, that's no problem, Your Honour. THE COURT: All right. Thank you, Ms. Cawley, for your submission with respect to community service.

Oftentimes, in these situations, community service is ordered and can be ordered. This is a young man who is currently holding down two jobs. I have now placed him on an absolute curfew with some very limited exceptions. I am not inclined to impose community service upon him. I will, however, sir, order you to have no contact directly or indirectly with Matthew Savoy. All right. Is there anything further? MS. CAWLEY: No, thank you.

THE COURT: All right. Now, Mr. Petrowski, I hope you understand just how close you were to walking through the back door of the courtroom and going to jail, to a federal penitentiary. THE ACCUSED: I understand, Your Honour. THE COURT: All right. So, I hope not to see you for the next two years. THE ACCUSED: No, Your Honour. THE COURT: All right. So, good luck with that. THE ACCUSED: Thank you, Your Honour. THE COURT: Thank you, Mr. Edgett. Thank you, Ms. Cawley. THE CLERK: Your Honour, can I please -- THE COURT: Yes? THE CLERK: Costs and surcharge? THE COURT: Costs and surcharge are waived. Thank you.