R. v. Rhyason Date:, 2014 BCPC 291

Citation: R. v. Rhyason Date: 20141104 2014 BCPC 0291 File No: 76023 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NATHAN SHAWN RHYASON REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: T. I. McFadgen Counsel for the Defendant: P. Hertzberg

Place of Hearing: Nanaimo , B.C. Date of Hearing: October 27, 2014 Date of Judgment: November 4, 2014 [ 1 ] Mr. Rhyason has entered a guilty plea to a single count of possession of cocaine for the purpose of trafficking. Mr. McFadgen, for the Crown, seeks a six month jail sentence, followed by a period of probation. Mr. Hertzberg, for the defence, seeks a suspended sentence and a period of probation. [ 2 ] Mr.

Rhyason admits that, on June 24, 2013, he stole a backpack from a drug trafficker, and that the backpack contained: a. 17.21 grams of crack cocaine, worth about $1700; b. 6 cell phones; c. $350 cash; d. some empty plastic bags suitable for storing small quantities of drugs; e. a digital scale. He also admits that he stole the backpack for the purpose of selling the contents to raise money to buy drugs. The Crown did not seek to prove any alternative version of the relevant facts, and I proceed to sentence Mr. Rhyason on the basis of the facts which he has admitted. [ 3 ] Mr.

Rhyason is 40 years of age, and has been addicted to cocaine and methamphetamine for all of his adult life. He has also abused alcohol. As a result, he has accumulated, over a span of 14 years, a criminal record of the kind which one frequently sees when sentencing addicts. He has been convicted of relatively few substantive offences, those being convictions for one weapons offence, two for assault, four for theft and related offences, three for mischief and three for possession of narcotics.

The weapons offence and the assaults do not appear to have been egregious offences - in each case, the sentence consisted of a period of probation, and no sentence of imprisonment was imposed. He has served jail sentences of 21 days or less for mischief and for possession of narcotics. On the other hand, he has incurred 23 separate convictions for offences which I would characterize as procedural; i.e. for breaches of bail or probation or for failure to attend court. He has served jail sentences of 45 days or less in relation to a number of those convictions. [ 4 ] Mr.

Rhyason has been convicted of no offences committed in 2007, 2008, 2010, 2011 or 2012. He says, and I conclude, that those gaps in his record correspond to periods when he had some measure of control over his addiction, although he acknowledges that he continued to use drugs during those periods. [ 5 ] Mr. Rhyason has twice attended and completed residential treatment programs for his addiction. It is apparent that the first program did not achieve its objective, because he committed the offence for which I must sentence him after completion of that program.

The results of the second program, which he attended from October, 2013 to May, 2014, seem to be more promising. He asserts that he has abstained from alcohol and narcotics since October, 2013, and there is no evidence to contradict that assertion. He now attends Alcoholics Anonymous and Narcotics Anonymous meetings regularly. [ 6 ] Mr. Rhyason is the beneficiary of an unusually positive pre-sentence report, which includes the following assessment: Mr. Rhyason has already taken positive steps to change his life around prior to his sentencing on the current charges.

He has attended and completed the program at Inner Visions, has a Sponsor, and attends Alcoholics and Narcotics Anonymous meetings. Mr. Rhyason is open and willing to attend any counselling or programming as directed by his Probation Officer. He is aware that addressing his substance abuse will help keep him from becoming negatively involved with the Criminal Justice System. …. Mr. Rhyason is ashamed of his behaviour but is grateful he was caught, indicating it caused him to take a hard look at himself.

He regrets his actions and states he was alienating himself from family and positive peers because of his substance abuse. … Mr. Rhyason advised that he no longer wants to be that person and understands he needs to address his substance abuse so that this ongoing cycle of offending, being sober and relapsing stops. [ 7 ] Since April, 2014, Mr. Rhyason has been employed, by a single employer, as a construction labourer. He works in the Greater Vancouver area, which takes him away from his former circle of criminal associates in the Nanaimo area.

He hopes to attend the British Columbia Institute of Technology to upgrade his construction skills in the autumn of 2015. [ 8 ] In support of the proposition that a jail sentence is necessary in this case, Mr. McFadgen relies upon the following authorities:

R vs Shusterman 2012 BCSC 362 ; R vs Gill 2013 BCCA 320 ; R vs Miller 2014 BCSC 1561 ; R vs Cisneros 2014 BCCA 154 and a decision delivered orally by his Honour Judge Sutton of this court on March 11, 2014: R vs Logan (Courtenay Registry #35981). Each of those was a “dial-a-dope” case; i.e. one in which the accused would receive orders for narcotics on a cell phone and deliver the narcotics to retail customers for cash, very much in the fashion of a pizza delivery driver.

In R vs Gill @ paragraph 22 , Neilson, JA explained that jail sentences are normally appropriate for “dial-a-dope” cases because (underlining added): 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. The proliferation of these operations has significantly increased accessibility to these drugs, and their harmful effects.

As a result, the courts have routinely recognized that the primary objectives in imposing sentences for trafficking in this manner must be deterrence and denunciation. [ 9 ] Mr. Rhyason’s case is different. It has been neither admitted nor proven that he was employed in a “dial-a-dope” scheme. He has not previously been convicted of trafficking or possession for the purpose of trafficking. There is no basis upon which I could infer that he was regularly engaged in trafficking.

The only information available to me is his admission that he took advantage of a one-time opportunity to steal some drugs and sell them. [ 10 ] In November, 2012, Parliament amended the Criminal Code to provide that conditional sentences should no longer be available for trafficking in narcotics. In light of that amendment, one might contend for the inference that Parliament intended to require jail sentences for narcotics traffickers. I do not draw that inference for two reasons: a.

Parliament has enacted mandatory minimum jail sentences for cocaine trafficking in certain circumstances: Controlled Drugs & Substances Act RSC 1996, c 19 , s 5(3)(a). It is not alleged that any of those circumstances pertain in this case. I think it fair to conclude that, when Parliament intends a jail sentence to be mandatory, it says so. b.

The inference would not be open to me in any event because of the judgment of His Honour Judge Gulbransen of this court in R vs Galang 2014 BCPC 240 . [ 11 ] Having concluded that a custodial sentence is not always required in cases of cocaine trafficking, it is my task to decide whether a custodial sentence is necessary in this case, having regard to the objectives and principles of sentencing set out in sections 718ff of the Criminal Code . Of those, the following seem to me to be of primary importance in this case. a.

Any sentence which I impose must incorporate sufficient elements of denunciation and deterrence to make a meaningful contribution to the efforts of law enforcement officers to supress the trade in cocaine, the harmful effects of which are well-known. b. To the extent consistent with that objective, the sentence which I impose should recognize the steps which Mr. Rhyason has taken toward his own rehabilitation, and should be designed to foster and encourage his future progress. c.

I should consider “… all available sanctions other than imprisonment that are reasonable in the circumstances …”: Criminal Code , s 718.2(e). [ 12 ] As noted above, in this case Mr. Hertzberg proposes 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, the sentence proposed by Mr.

Hertzberg in this case would be inadequate to provide the measure of denunciation and 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. [ 13 ] 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 accede to Mr. Hertzberg’s submission, suspend the pronouncement of Mr. Rhyason’s sentence, and impose a term of probation, Mr. Rhyason will be left in the following position. If, during the term of his probation, Mr. Rhyason commits any new offence, or fails to abide by any of the terms of his probation, I may then impose upon him any sentence which I could now impose. I observe that the maximum sentence for trafficking in cocaine is life imprisonment. A life sentence would plainly be inappropriate for this offender or this offence, but it is clear that Mr.

Rhyason would be at risk of a significant jail sentence in the eventuality described. [ 14 ] Having in mind the observations in paragraph 13, I think that a sentence as proposed by Mr.

Hertzberg could, in this case, sufficiently satisfy the statutory imperatives of denunciation and deterrence. [ 15 ] As to denunciation, the public will know that a person convicted of trafficking for the first time, and who was trafficking in a relatively small quantity of drugs, may be given an opportunity, over an extended period of time, to demonstrate both sincere remorse and an intention to give up crime in favour of a socially productive lifestyle, without the imposition of a jail sentence. Society will also

know that, if the offender fails to take full advantage of that opportunity, he will face a jail sentence similar to, or longer than, that which would otherwise have been imposed. The knowledge that the offender will live under the shadow of those potential consequences for the term of his probation seems to me to sufficiently denounce the crime. [ 16 ] As to specific deterrence, Mr.

Rhyason will be aware that any criminal activity during his term of probation may result in a jail sentence, and that any criminal activity in relation to drugs during his term of probation will likely result in a long jail sentence. [ 17 ] As to general deterrence, I would not expect that similar opportunities would be offered (at least in most cases) to those with previous histories of drug trafficking or who were convicted of trafficking in large quantities.

Other potential offenders will know that second chances are not always to be given, and, when given, carry an obligation to demonstrate measurable changes in behaviour with meaningful consequences for failure to fulfil that obligation. [ 18 ] The sentence proposed by Mr. Hertzberg, if suitable probation terms are imposed, offers a significant incentive to assist Mr. Rhyason in the pursuit of his rehabilitation plan. If that plan succeeds, society will have gained a productive citizen. If it fails, Mr. Rhyason will face a jail sentence similar to, or perhaps longer than, that sought by Mr. McFadgen.

Society can afford to wait, in the hope of success. [ 19 ] The sentence proposed by Mr. Hertzberg would provide a reasonable alternative to incarceration for Mr. Rhyason. A jail sentence now would almost certainly annul his efforts to address his addictions and to advance his employment prospects. Probation will foster those efforts. It is plainly the sentence most likely to advance his rehabilitation. [ 20 ] In Mr. Ryhason’s case, I think that the objectives of denunciation, deterrence and rehabilitation would best be served by the maximum term of probation permitted by the Criminal Code ; i.e. 3 years [

section 732.2 (b)]. I say that because neither denunciation nor deterrence will be well-served if the offender and the public perceive that the offence can be sufficiently expiated by a brief period of repentance, followed by a relapse into crime, and because most addicts require an extended period of assistance (including the threat of consequences for relapse) to recover from their addictions. [ 21 ] In the result, I suspend passing of sentence in this case, and impose a term of 3 years’ probation on the following conditions. Mr.

Rhyason is: a. to keep the peace and be of good behaviour and attend court when required to do so by the court; b. to report in person to a probation officer no later than 4:00 p.m. on Wednesday, November 5, 2014, and to report thereafter as directed by his probation officer; c. to reside at a place approved of by his probation officer, and not to change that place of residence without the prior permission of his probation officer; d. not to 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 to possess any drug paraphernalia, any weapons as defined by the Criminal Code , or any imitations thereof; f. not to be found on Vancouver Island after November 6, 2014, except with the written permission of his probation officer, and then only in accordance with any conditions imposed by his probation officer; g. to attend, participate in, and successfully complete any counselling programs to which he may be referred by his probation officer, including full-time attendance programs if he is referred to any; h. to take steps to the satisfaction of to his probation officer: (

i) to find and maintain employment; and (ii) to attend educational programs, and to provide to his probation officer on request such information as his probation officer may require respecting those steps, his employment and his educational programs. [ 22 ] As requested by Mr. McFadgen, there will be an order for forfeiture of the items enumerated in paragraph 2, an order that Mr. Rhyason provide a DNA sample no later than November 12, 2014, a general firearms prohibition for a term of 10 years and a lifetime prohibition against possession of prohibited or restricted weapons under

section 109 of the Criminal Code . November 4, 2014 ________________________________ T. Gouge, PCJ