R. v. Bradbury Date:, 2012 BCPC 529

Citation: R. v. Bradbury Date: 20121016 2012 BCPC 0529 File No: 202463-3-C Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ELLWOOD THOMAS BRADBURY EXCERPTS FROM PROCEEDINGS ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE C. L. BAGNALL Counsel for the Crown: J. Torrance; M. Namazi Counsel for the Defendant: J. Sherren Place of Hearing: Vancouver , B.C. Date of Judgment: October 16, 2012

[ 1 ] THE COURT: On June the 27th, 2012, Ellwood Bradbury entered a plea of guilty to a charge of conspiring with four other named individuals to traffic in cocaine between October the 1st, 2010, and January the 22nd, 2011. The trial of this and other charges laid against Mr. Bradbury and those four others had commenced and evidence had been presented when Mr. Bradbury entered a plea of guilty to Count 3 of the information. [ 2 ] Sentencing was adjourned until October the 2nd and the 3rd, 2012, when submissions were made. I reserved my decision after hearing submissions until today.

I have considered all of the submissions that I have heard and I have read the cases referred to by counsel, although I do not intend to refer to most of those cases, nor indeed to the submissions of counsel, in detail. I have filed copies of the lists of cases referred to by counsel. [ 3 ] The facts were set out in great detail in the submissions of counsel for the Crown. In my view, it is not necessary to repeat them here, as there is no real dispute about what occurred. Crown takes the position that a sentence of six years is appropriate and seeks certain ancillary orders.

The defence says that a sentence of two years less one day is appropriate. [ 4 ] The aggravating circumstances that I have considered are as follows: [ 5 ] Mr. Bradbury has a criminal record. He turned 22 in September 2012. [Material Removed] His record as an adult commences in August 2009, when he was 18 years of age, and it is a brief record, but it is serious. [ 6 ] In October 2010, he was convicted of robbery and sentenced to one day in jail, having served 23 months of pre-sentence custody. The robbery was committed in August 2009. Mr.

Bradbury and another robbed a jewellery store using bear spray to deter resistance from the staff at the store. The two men stole $171,000 worth of jewellery. They smashed display cases in the store with a hammer. [ 7 ] Mr. Bradbury was released from custody respecting that robbery in early October 2010. He was placed on probation for three years.

The order included terms that he keep the peace and be of good behaviour, that he report to a probation officer, that he reside with his grandmother, that he take counselling, that he seek and maintain employment or attend school, that he not consume alcohol or other drugs, and that he obey a curfew. [ 8 ] In the course of hearing about the events which gave rise to the charges that concern me, I would have to say that I conclude that Mr. Bradbury disobeyed most of these conditions within a very short space of time. [ 9 ] Within six weeks of his release from custody, Mr.

Bradbury had started to work with his co-accused in an organization that sold cocaine in the 200-block Dunlevy, across the street from the west edge of Oppenheimer Park in the Downtown Eastside. [ 10 ] Mr. Bradbury treated this enterprise as if it were his job. He worked regular hours, commuting to Vancouver from Surrey. He was paid well from the start. He began at a salary of $1,500 a week. He very quickly demonstrated his use to his employers and began to work on commission.

He was a supervisor in charge of taking drugs from where they were kept in a stash house to the sellers on the street, and in charge of collecting money from the sellers and taking it to his bosses. He was trusted with access to the drugs and the money, and the drugs were located at, as I have indicated, a separate location. [ 11 ] When Mr. Bradbury was arrested on January the 21st, 2011, he was in possession of keys to the stash location and $2,780 in cash. [ 12 ] Mr. Bradbury's motive for involvement in the conspiracy and the trafficking was financial.

He is not addicted to any drug, although I was told that he does use some drugs, I got the impression recreationally. [ 13 ] Almost all of the members of the group were arrested or dealt with by the police during Mr. Bradbury's involvement in the scheme. Mr. Bradbury himself was apprehended and released on January the 4th, 2011. [ 14 ] One of the locations used by the group to store drugs and money was searched by the police pursuant to a warrant during the time that Mr.

Bradbury was involved with the group, and one of the bosses was arrested. [ 15 ] Each time that one of these occurrences took place, the group, including Mr. Bradbury, carried on selling drugs in the same way as before. [ 16 ] The drug sold by the group was cocaine. The misery caused by this drug, with its highly addictive nature, is well known. The men and women who actually sold the group's cocaine on the street were addicts and they were paid in cocaine. They were used by the other members of the group, the supervisors and the bosses, and this includes Mr.

Bradbury, as well as to sell the drugs, also as some form of protection. For example, when arrested on January the 4th, 2011, Mr. Bradbury was in a cab with a woman. He was apparently transporting drugs, but the drugs were on the person of the woman, a seller, that he had with him and the purpose of course was for him to distance himself from possession of those drugs. [ 17 ] Mitigating factors are Mr. Bradbury's plea of guilty, which came after his trial had begun, and his age.

As I have indicated, he is now only 22 years of age; he was 20 years old when the events which concern me occurred, and has been in custody since his arrest late in January 2011. [ 18 ] The defence filed letters of support for Mr. Bradbury, and those are included in Exhibit 7. As discussed during submissions, one of the letters, apparently written by Oriana Rogers, was written when Mr. Bradbury was 20 years old. The letter is not signed, which causes some mild concern. Two other letters which were provided are not signed.

The letters that are signed and that appear to be current are from the offender's mother and stepfather, who reside in Alberta, and from his grandmother, who is the lady with whom he was residing while committing the offence which concerns me.

[ 19 ] The case that was provided by both counsel and to which I wish to refer in some detail is R. v. Staniforth , and that is the sentencing decision of my colleague Judge St. Pierre handed down on May 7, 2012. Mr. Staniforth is one of the accused charged jointly with Mr. Bradbury. He also entered a plea to Count 3 of the information. I am not able to say whether this was before the trial began or not. [ 20 ] Judge St. Pierre sentenced Mr. Staniforth to two years less one day, and the defence says that this is persuasive respecting the appropriate sentence for Mr. Bradbury. Mr.

Staniforth's position in the hierarchy of the conspiracy was similar to Mr. Bradbury's in some respects, but different in several important ways. Mr. Staniforth was an addict. He was likely originally a street-level dealer, but he had gained some additional responsibilities. He was apparently not able to sell larger amounts of cocaine himself, as did Mr. Bradbury. He was not paid a salary or a commission, as was Mr. Bradbury. He was paid in drugs, which he used to support his habit. [ 21 ] Mr. Staniforth was not a sophisticated criminal, Judge St. Pierre found. The judge characterized Mr.

Staniforth as a "desperate, fast-talking addict who was always on the hustle". He was "slightly elevated from a street-level trafficker, but not someone who is financially profiting from some kind of sophisticated drug scheme." [ 22 ] The sentence appropriate for Mr. Staniforth, in my view, is not appropriate for Mr. Bradbury. The two men are in quite different circumstances. [ 23 ] With respect to the issue of credit for time served, I would like to refer to the case of R. v.

La Flam , this is a case which is not yet reported from the Nanaimo Registry, Docket Number 73889, handed down on August the 7th, 2012, it is a decision of Mr. Justice Voith of our Supreme Court. [ 24 ] That case decides, and in my view is binding on me, that the enhanced rate of credit available under the present legislation is to be used only in exceptional circumstances. Here Mr. Bradbury's sentencing was delayed because of circumstances beyond his control, and I will just refer to them briefly. [ 25 ] The sentencing was originally scheduled to deal with Mr.

Bradbury and the co-accused, and it was going to take approximately four days. There was a delay in locating four days of court time in order to deal with these matters. The co-accused is being dealt with in a different forum and so Mr. Bradbury, in effect, lost some time as a result of that. [ 26 ] I am prepared, in view of these circumstances, to consider the time since he entered a plea of guilty at the enhanced rate. [ 27 ] The appropriate range of sentence for those who are motivated by profit rather than driven by an addiction, and who are involved at the level that Mr.

Bradbury was, a supervisory level, in a scheme such as the one that I am concerned with, is three to six years. [ 28 ] Mr. Bradbury is young and rehabilitation must be considered here; indeed, it must be enhanced, if I can do that. But denunciation and deterrence must be also primary considerations. Those who become involved in a scheme such as this do so in the cold light of day and not on a spontaneous basis. In addition, the aggravating circumstances here are numerous and I have tried to list them. [ 29 ] The appropriate sentence is three and a half years. Mr.

Bradbury has been in custody for 20 and one-half months. I will consider 17 of those months at the usual rate, that is one-for-one, and I will consider the remainder of the time that he has been in custody at the enhanced rate. Mr. Bradbury will serve 20 months as a result of this. [ 30 ] I will make the ancillary orders requested.

I will make the order under s. 109 that is required for a period of his life, and I will order forfeiture of the funds found in his possession when he was arrested which, so that it is clear, is $2,780. [ 31 ] It is not my intention, subject to anything in particular you might want to say, Mr. Sherren, it is not my intention to place Mr. Bradbury on probation. Probation does not seem to work for Mr. Bradbury, but if you ask me to do that, I will certainly consider adding a probation order. [ 32 ] MR. SHERREN: No, I'm not inclined to ask for probation, Your Honour, thank you. [ 33 ] THE COURT: Thank you.

Is there anything further from either counsel? [ 34 ] MR. TORRANCE: Just one housekeeping matter, Your Honour. [ 35 ] THE COURT: Yes. [ 36 ] MR. TORRANCE: I've just drafted a forfeiture order for the cash and -- [ 37 ] THE COURT: Yes, I will sign that. [ 38 ] MR. TORRANCE: Mr. Sherren has approved as to form, as by per -- [ 39 ] THE COURT: Thank you. I will sign that, and you want to stay the other count outstanding against Mr. Bradbury on the information, do you, Mr. Torrance? [ 40 ] MR. TORRANCE: Yes, I do. Thank you, Your Honour. [ 41 ] THE COURT: Thank you. [ 42 ] MR. TORRANCE: That would be Count 2.

[ 43 ] THE COURT: Thank you. [ 44 ] MR. TORRANCE: But with respect to Mr. Bradbury only. [ 45 ] MR. SHERREN: And the victim fine surcharge, if it might be waived, please? [ 46 ] THE COURT: Yes. (REASONS FOR SENTENCE CONCLUDED)