r v. Jason, 2013 QCCQ 14969

R. c. Phillips 2013 QCCQ 14969 COURT OF QUÉBEC Criminal and Penal Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-093205-133 DATE: 26 November 2013 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v.

Jason Stephen PHILLIPS Accused _____________________________________________________________________________ JUDGMENT ON SENTENCE _____________________________________________________________________________ [ 1 ] Mr. Phillips was sentenced in May 2012 to a conditional sentence of two years, less a day, on three counts of possession of drugs for the purpose of trafficking. On 25 July 2013, he was arrested for other drug offences. By agreement of the parties the remainder of the conditional sentence (to 21 May 2014) was revoked. With respect to the more recent charges, Mr.

Phillips pleaded guilty on 2 October 2013 to one count of possession of marijuana (6.27 gr.) for the purpose of trafficking [1] and one count of possession of crack cocaine (4.621gr./30 rocks) for the purpose of trafficking. [2] The prosecution filed notice under

section 8 of the Controlled Drugs and Substances Act [3] and proposed a sentence of two years less a day consecutive to the sentence already in effect. The defence proposed a sentence of one year consecutive. [ 2 ] The purpose of a consecutive sentence in this matter is to underscore the principles of denunciation and deterrence. The importance of these principles is self-evident where the offences in question, as here, are further offences of possession for the purpose of trafficking while the offender was bound by a conditional sentence for an earlier offence of the same kind.

In this case, the duration of the conditional sentence in effect was the maximum allowable, thus reflecting the seriousness of the offences. It is apparent that Mr. Phillips grasped neither the seriousness of the offences nor the chance of rehabilitation offered by the conditional sentence. [ 3 ] A minimum sentence of twelve months, consecutive to the previous sentence, is imposed by law with respect to the second count. The defence proposes that this minimum is just and appropriate in the circumstances of this case. Mr.

Phillips claims that three months in remand have taught him a lesson and that he wishes sincerely to turn away from criminality by pursuing a career of gainful employment. His mother asked the court for leniency and undertook to keep him under close supervision. (She also testified, however, that she could not always know of his activities when he was away from home.) [ 4 ] A sentence cannot be just and appropriate, or fit, unless it meets the principle of proportionality by reflecting the gravity of the offence and the offender's degree of responsibility for its commission.

The courts in Québec and across Canada have repeated on many occasions the gravity of trafficking in drugs, and particularly crack cocaine. [4] I need not demonstrate this point. As for the offender's degree of responsibility, that too is clear. He committed the offences with the requisite degree of fault and thus did so by his own choice while he was bound by a previous sentence concerning a similar offence. (I note as well that Mr. Phillips has previous convictions in unrelated matters.

The two-year period of probation in the last of these previous convictions ended in March 2013, and thus he was under probation at the time he committed the offences for which he received a conditional sentence.) Notwithstanding the mandatory minimum sentence required in this case, the individualisation of sentencing remains applicable with regard to all elements of the sentence imposed. [5] [ 5 ] Despite his mother's plea for leniency, there is little before the court to suggest that Mr.

Phillips has, in counsel's words, "learned his lesson." This is a case of recidivism involving drugs and it is therefore self-evident that the risk of further offending remains. Recidivism and the nature of the offences now before the court are both factors that demand a punitive sentence that underscores the objectives of denunciation and deterrence. In this respect, I am not satisfied that the minimum sentence of twelve months consecutive is fit and proportionate.

Conversely, it is not apparent to me that a proportionate sentence in the circumstances is one that abandons all consideration of rehabilitation and an enhanced awareness of personal responsibility. Mr. Phillips's affirmation that he will turn away from criminality cannot be proved. It is at best a hope for which all concerned can only cross their fingers. He is young and appears to have the support of his family. He has a young child and appears to want to assume his parental responsibilities.

These cannot properly be regarded as mitigating factors but they are elements that provide some basis for hope of rehabilitation.

[ 6 ] How can the objectives of denunciation, deterrence and hope of rehabilitation be reconciled in a fit and proportionate sentence? The proposal of the defence for a sentence of twelve months consecutive to the sentence already in force implies some recognition of the importance of denunciation and deterrence. But, as I said, this is not sufficient to underscore these objectives and it is also not sufficient to promote rehabilitation in a concrete fashion. [ 7 ] Given Mr. Phillips's record and recidivism, the sentence in this file must convey to Mr.

Phillips not only the gravity of the offences in question but the gravity of reoffending in similar matters. At the same time it must not extinguish all hope for rehabilitation. To this end it is also appropriate that this sentence include an order of probation for three years. Mr. Phillips will thus be subject to the supervision of the court for a period of more than four years.

FOR THESE REASONS the sentence of the court, concurrent on the two counts, is as follows: Imprisonment 1.1 There will be a term of imprisonment for eighteen months consecutive to the sentence now in effect that will expire on 21 May 2014. 1.2 It is forbidden for you to possess any weapons or imitation weapons for ten years ( Criminal Code ,

section 109). 1.3 Any drugs seized in the present file are hereby confiscated and are be ordered to be destroyed. 1.4 Within twenty-four hours of this judgment, and in respect of the second count only, you must provide a sample of DNA ( Criminal Code ,

section 487.051). 1.5 Any monies seized in the present file shall be forfeited to the Attorney General of Québec. Probation 2. Upon completion of the terms stated above in paragraph 1, there will be in effect a probation order for a period of three years, subject to the following conditions: 2.1 Keep the peace and be of good behaviour; 2.2 Report to the probation service with seventy-two hours of the completion of terms stated above in paragraph 1; 2.3 No possession or consumption of any drugs except with a valid medical prescription; 2.4 Follow all recommendations and directions of a probation officer.

No costs or surcharge. ____________________________________ PATRICK HEALY, J.C.Q. M e Éric Poudrier For the prosecution M e Audrey Amzallag For Mr. Phillips Date of hearing: 2 and 16 October 2013