R. v. Charlton Date:, 2014 BCPC 292

Citation: R. v. Charlton Date: 20141118 2014 BCPC 0292 File Nos: 36261-1,36242-4-B Registry: Campbell River IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KRYSTAL MARIE CHARLTON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: C.J. Gibson Counsel for the Defendant: J.E. Heller

Place of Hearing: Campbell River , B.C. Date of Hearing: November 17, 2014 Date of Judgment: November 18, 2014 [ 1 ] Ms. Charlton has entered guilty pleas to one count of possession of cocaine for the purpose of trafficking, one count of possession of heroin for the purpose of trafficking, and one count of breach of probation, the latter being a breach of a probation condition which forbade her to possess illegal drugs. Ms. Charlton admits that she was employed as a courier in a dial-a-dope operation.

At the time of her arrest, she was in possession of 5.7 grams of crack cocaine, 1.51 grams of powdered cocaine, 1.75 grams of heroin and $156 in cash. It may be noted that those are relatively small quantities of drugs and cash, at least by the standards of drug dealers. It would appear that Ms. Charlton was working at a low level of the drug trade. [ 2 ] Mr. Gibson, for the Crown, seeks a six-month jail sentence, to be followed by a period of probation.

He relies upon a line of authority in which the British Columbia Court of Appeal has consistently said that the appropriate range of sentence for a first offender in a dial-a-dope case is six to nine months’ imprisonment. The most recent of those cases are R vs Gill 2013 BCCA 320 ; [2013] BCJ #1517 and R vs Cisneros 2014 BCCA 154 ; [2014] BCJ #745. While acknowledging that line of authority, Mr. Heller, for Ms. Charlton, submits that a jail sentence is not necessary in this case. He seeks a suspended sentence and a period of probation.

He relies on R vs Voss 2014 BCPC 43 ; [2014] BCJ #1024 and R vs Dau Man Voong 2014 BCPC 211 ; [2014] BCJ #2394, in support of the proposition that a jail sentence is not necessary, even in a dial-a-dope case, where a consideration of the factors mentioned in sections 718ff of the Criminal Code leads to the conclusion that a custodial sentence would not be in the public interest. Mr.

Heller’s submission is also supported by the recent decision of His Honour Judge Gulbransen in R vs Galang 2014 BCPC 240 ; [2014] BCJ #2593. [ 3 ] I am bound to follow the reasoning and principles set forth in all of the decisions mentioned in paragraph 2, and so must attempt to articulate a principled basis by which the Provincial Court judgments mentioned may be reconciled with those of the Court of Appeal. Doing my best in that regard, it seems to me that I am bound to impose a jail sentence of at least six months’ imprisonment unless, in the particular circumstances of Ms.

Charlton’s case, one or more of the sentencing principles and objectives identified in sections 718ff of the Criminal Code are so compelling as to justify a sentence outside the normal range defined by the Court of Appeal. [ 4 ] Unlike Mr. Cisneros, Ms. Charlton has a criminal record. Indeed, she was on probation for a drug offence when she was arrested on the present charge.

Her record comprises four previous convictions for possession of narcotics (but none for trafficking or possession for that purpose), one for assaulting a police officer, five for breaches of probation or undertaking, and one for leaving the scene of a motor vehicle accident. Each of those offences attracted a fine and/or probation - she has not previously received a jail sentence. Ordinarily, such a record would be seen as a clear aggravating factor. However, there is another side to it. Ms. Charlton is addicted to cocaine, although her addiction is at present in remission.

At the time of the offences in question, she was in active addiction. Her criminal record is typical (one might say symptomatic) of addicts. As Romilly, J remarked in R vs Shusterman 2012 BCSC 362 ; [2012] BCJ #484 @ paragraph 26: For offences involving low to moderate level cocaine trafficking, where the accused is addicted to drugs, the courts usually impose shorter sentences of incarceration or non-custodial sentences …. * * * … addiction, while a mitigating factor, is not to be given overriding importance. Almost all addicts have criminal records.

If addiction is a mitigating factor, it would seem incongruous to regard a criminal record (at least for the petty offences of which addicts are so often convicted) as a serious aggravating factor. [ 5 ] Ms. Charlton has been at large on bail since her arrest on March 8, 2014. She is not accused of any breach of probation or bail conditions since that date. She has been receiving substance abuse counselling from her local health authority.

Her clinical social worker reports that “… she has worked hard to maintain lifestyle balance and create new focuses in her life, including parenting her daughter, self-care and a career opportunity”. Ms. Charlton has found employment as a coach at a local fitness club. Her employer, Ms. Hanes, describes her in the following terms: I have had many employees over the years, but have never had someone so committed to learning and improving herself. In this short time, Krystal has become an integral part of our team and has taken the initiative to become certified as a nutritional coach, doing so on her own time.

Krystal shows much potential for self-improvement and advancement within our organization. She is not only well-liked and dedicated to her position, but it would be a hardship to our business to have Krystal gone as we depend on her so much already. I have had the opportunity to speak with Krystal in depth about her past life. I truly believe she has made substantial changes for herself and her daughter. I see evidence of this daily, and I trust her completely in every capacity of her job. Ms. Hanes attended the sentencing hearing, and spoke in support of Ms. Charlton. She told me that, if Ms.

Charlton is sentenced to jail, there will be a job waiting for her on her release. I think it worthy of note that there is no shortage of labour on Vancouver Island. Ms. Hanes has many applications for every job vacancy. Her willingness to hold a position open for Ms.

Charlton corroborates her sincerity. [ 6 ] I have in mind that denunciation and deterrence, general and specific, are compelling sentencing imperatives in drug trafficking cases, and that those imperatives are of particular significance in small communities like Campbell River: R vs Trinder 2008 BCPC 148 ; [2008] BCJ #991 @ paragraph 13. [ 7 ] I think that sufficient specific deterrence can be provided by a suspended sentence and a term of probation. It is commonly thought that such a sentence reflects a decision by the court that a jail sentence is unnecessary in the circumstances of the case, and that

the only sanction to be imposed is probation. If that were so, such a sentence would be inadequate to provide the measure of specific deterrence which is necessary and appropriate in the circumstances of this offender and this offence. However, as Judge Gulbransen pointed out in Galang , the common understanding of suspended sentences is mistaken. [ 8 ] Sections 731(1) (

a) and 732.2(5) of the Criminal Code provide: Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission … , if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions described in a probation order …. * * * Where an offender who is bound by a probation order is convicted of an offence … [including the offence of breach of probation] …, in addition to any punishment that may be imposed for that offence …, where the probation order was made under section 731(1) (a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended ….

To simplify, if I suspend the pronouncement of Ms. Charlton’s sentence and impose a term of probation, Ms. Charlton will be left in the following position. If, during the term of her probation, Ms. Charlton commits any new offence, or fails to abide by any of the terms of her probation, I may then impose upon her any sentence which I could now impose. In that event, Ms. Charlton would be at risk of a significant jail sentence. [ 9 ] A suspended sentence will also provide a measure of denunciation, although less than one would normally hope for in a dial-a- dope case.

Members of the public will know that, for the duration of her probation, Ms. Charlton will live under the shadow of a jail sentence if she fails to comply with the probation terms. [ 10 ] It must be conceded that a suspended sentence will fail to provide the measure of general deterrence appropriate in a dial-a-dope case, particularly for an offender with a record which includes previous drug offences.

The question is whether, in this case, that factor is outweighed by the sentencing objective of rehabilitation and the statutory instruction that I am to consider all reasonable alternatives to incarceration; Criminal Code ,

section 718.2(e). In my view, it is. It is clear that, since her arrest, Ms. Charlton has taken meaningful, practical and successful steps to leave her life of crime and to become a useful and contributing member of society. I see no harm, and much potential good, in delivering to others who are engaged in entry-level positions in the drug trade the message that, if, while awaiting sentencing, they demonstrate sincere repentance and take real, substantial and meaningful steps to become productive members of society, the court will support them in that endeavour.

I think it an essential part of that process that probation conditions be imposed to require the offender to continue on the path on which she has embarked, and that the offender and the public be aware that jail is a likely consequence if the offender fails to do that. A suspended sentence can serve that purpose. [ 11 ] In such cases, I think that the duration of probation should normally be three years, the maximum permitted by the Criminal Code .

I consider that to be important because it is necessary for both the offender and the community to know that a brief period of repentance is insufficient to expiate the crime of narcotics trafficking. The threat of a jail sentence should not be removed until the offender has demonstrated an extended period of socially constructive behaviour. [ 12 ] For the reasons given, I think that the appropriate disposition in this case is a suspended sentence and a term of three years’ probation on the following conditions. Ms.

Charlton must: a. keep the peace and be of good behaviour and attend court when required to do so by the court; b. report in person to a probation officer no later than 4:00 p.m. on November 19, 2014, and report thereafter as directed by her probation officer; c. reside at a place approved of by her probation officer, and not change that place of residence without the permission of her probation officer; d. not possess or consume any alcohol or any controlled substance, as defined by the Controlled Drugs & Substances Act , except in accordance with the terms of a valid medical prescription; e. not be found in any business premises where alcohol is the primary commodity for sale; f. not possess any weapons, as defined by the Criminal Code , or any imitations thereof; g. take steps satisfactory to her probation officer to seek and maintain full-time employment (including her current employment, if she chooses).

In addition, there will be: h. a 10- year firearms prohibition under

section 109 of the Criminal Code ; i. an order for forfeiture of the drugs, cash, bear spray and cell phone seized from Ms. Charlton at the time of her arrest; and j. an order that Ms. Charlton attend at the Campbell River RCMP detachment to provide a DNA sample on or before November 30, 2014. November 18, 2014

_____________________ T. Gouge, PCJ