R. v. Simonovic and Motta Date:, 2014 BCPC 325

Citation: R. v. Simonovic and Motta Date: 20141016 2014 BCPC 0325 File No: 76032-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RANDI MILENA SIMONOVIC MICHELLE SOARES MOTTA ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE J.P. MacCARTHY Counsel for the Crown: K.M. Morrison Counsel for the Defendant: B. Harvey Counsel for Accused Motta : E.L. Williams Place of Hearing: Nanaimo , B.C.

Date of Hearing: October 16, 2014 Date of Judgment: October 16, 2014 Introduction [ 1 ] THE COURT (Orally): Randi Milena Simonovic and Michelle Soares Motta have been charged that they did unlawfully traffic in a controlled substance, namely, cocaine, contrary to s. 5(1) of the Controlled Drugs and Substances Act . The alleged offence took place on 30 July 2013. The accused have entered pleas of guilty with respect to the offence. The pleas of guilty were entered in September of 2014 prior to the trial of the matter.

It is significant that the indictment was sworn on January 13, 2014, several months after the offence occurred. [ 2 ] The matter that I must deal with today is the sentencing of each of the two offenders and to determine what is a fit sentence having regard for all of the circumstances. Facts Circumstances of the offence [ 3 ] Crown counsel has outlined the circumstances as the facts in this case, and by virtue of the guilty plea, the offenders have admitted the essential elements of the offence in accordance with s. 606(1.1) of the Criminal Code .

The circumstances as outlined by Crown may be summarized in the following fashion. [ 4 ] In May of 2013, the RCMP started an undercover drug investigation on Gabriola Island. Gabriola Island is a small community of approximately 5,000 residents. It is located off the east coast of Vancouver Island adjacent to Nanaimo, British Columbia. Gabriola Island and Nanaimo are connected by a ferry link. [ 5 ] In or around July 30, 2013, an RCMP undercover agent attended at a well-known pub located on Gabriola Island.

That pub was known to the RCMP as a location where drug traffickers both attended and conducted their business. An undercover officer approached the offender Motta and sought to engage her in discussion. He was successful in doing so. He asked the offender Motta whether or not she could help procure "party favours." The offender Motta clarified with the undercover officer that he was seeking cocaine. The undercover officer indicated, at the request of the offender Motta, that he was seeking to procure half a gram.

The price of that was quoted by the offender Motta at about $40 for the half-gram quantity. [ 6 ] The offender Motta placed a phone call and engaged in a discussion overheard by the undercover police officer.

Essentially, the discussion related to the offender Motta telling the person at the other end of the line, described as "Randi," that she was looking to obtain the same thing that she had obtained a few days previous to this occasion. [ 7 ] The offender Motta then informed the undercover police officer that her friend Randi would be arriving at the pub in approximately 15 minutes. [ 8 ] The offender Motta and the undercover officer shared a drink waiting for the person described as Randi to arrive. That person did arrive.

The person described as Randi, in fact, is the offender Simonovic. [ 9 ] The parties went outside the pub, at which point the police officer observed a car which it is presumed had been the mode of transportation for the offender Simonovic to arrive at the pub. There were three male passengers in the vehicle, but the driver's seat was vacant. The offender Simonovic then provided a Ziploc bag to the offender Motta. A cash exchange occurred between the undercover police officer to Motta and then between the offender Motta to the offender Simonovic.

That Ziploc bag contained .2 grams of cocaine. [ 10 ] Crown says that the value of the substance admitted to be cocaine was, in this case, $40, although it is suggested that this price is perhaps higher in the island community of Gabriola Island than it might be in other locations closer to the supply of drugs. [ 11 ] The suggestion is made by Crown in their submissions that what took place was in the nature of what is described as a dial-a- dope operation; the suggestion is also made in the submissions of Crown that the two offenders were participants in that dial-a-dope operation. [ 12 ] The offenders dispute that this was, in fact, a dial-a-dope operation.

The offenders indicate that there may be hallmarks of a dial-a-dope operation, but as I understand it, their contention is that the Crown has not adequately been able to prove, in fact, this was a dial-a-dope operation. I am left, as I understand it, by way of the submissions of Crown, that I am to draw such an inference. [ 13 ] That inference is important, in the view of Crown, because of the nature of the sanctions and sentence that should run as a result of that type of trafficking in a controlled substance.

The operation of dial-a-dope operations has been the subject of a significant amount of judicial comment. Dial-a-dope operations are viewed as being an aggravating factor in the imposition of sentences. Circumstances of the offender Randi Milena Simonovic [ 14 ] There is a reasonable amount of information about this offender available both through submissions from counsel and there has been placed before the court a pre-sentence report which was completed on October 10, 2014, by Tanya Cole, a probation officer with the Victoria Community Corrections office.

That report is detailed, comprehensive, and very useful. [ 15 ] The pre-sentence report confirms that the offender Simonovic is 26 years of age. Her mother raised her in what is described as an "addict" lifestyle for a significant period of this offender's life. The addict lifestyle of the offender's mother resulted in frequent relocations throughout the earlier part of her life. It interfered with the completion of her education. She has only completed a grade 7

education. She has had sporadic and unstable employment over a significant period of time, resulting from this offender's own addiction issues which have been in existence since approximately the age of 12. [ 16 ] The offender Simonovic has also experienced periods of sobriety in her life, but those periods of sobriety have been often interrupted by other various events in her life, including emotional trauma. That emotional trauma gave way to a return to substance misuse. [ 17 ] As at October of 2013, this offender gave up the use of drugs and alcohol and is currently participating in a methadone program.

According to the pre-sentence report, the offender has responded well to community supervision and has accepted responsibility for her actions and expressed shame and regret. [ 18 ] Since the offence occurred, the offender Simonovic has given birth to a young daughter who is now three months of age. She resides with her boyfriend, as I understand it, in the Victoria area. Her plan is eventually to move to a small community in the spring of 2015.

That small community is located, again as I understand it, in Northern British Columbia. [ 19 ] From a medical and mental health perspective, there is a reported history of anxiety and depression. However, at the present time, this offender is not accepting any form of medication nor is she involved in any formal counselling. She is noted to lack coping skills and a self-reporting belief that her years of substance abuse have impeded her developmentally. [ 20 ] It is common ground that this offender has no prior criminal record. This conviction constitutes her first contact with the law.

Accordingly, she has no prior history, favour or unfavourable, of supervision or incarceration and no history of violent behaviour. It is common ground that she has fulfilled the conditions of her judicial interim release without incident since entering pleas on this matter back in February of 2014. [ 21 ] The offender's goal is to educate herself on her addictions, and her overarching goal is to stay clean and sober.

I infer from the pre-sentence report that much of this has developed out of the birth of the child for which the offender has taken full responsibility and for which she provides care. [ 22 ] In addition to the pre-sentence report, a number of letters of reference have been submitted and entered as an exhibit. These include letters from family members as well as medical practitioners who have given prenatal and postnatal care for the baby. It also includes a letter from a medical practitioner who holds a certification in addiction medicine.

The general theme running throughout these letters is that the offender Simonovic has made a significant turnaround in her life since the birth of the child, that this offender has taken responsibility for her addiction and has taken positive steps in order to deal with the addiction, and finally her life has evidenced a significant positive transformation since the time of this offence. [ 23 ] There is also a letter from the Ministry of Children and Family Development signed by a child protection worker indicating that, as a result of investigations conducted by that Ministry, that there are no concerns about the child of this offender being in need of protection. [ 24 ] In the letter from the family practitioner, who has been providing prenatal and postnatal care, there is a strong indication as follows: "It would be detrimental for both the mother and the baby if they were to be separated." Circumstances of the offender Michelle Soares Motta [ 25 ] There is also a pre-sentence report that has been prepared and submitted to the court in connection with the offender Motta.

This report was completed on October 9, 2014, by Hillie McPherson, a probation officer with the Nanaimo correctional office. Again, this report is comprehensive in nature. It contains extremely useful information. It provides a favourable report with respect to the offender Motta. [ 26 ] From this report and from the submissions that I have heard, the offender Motta is presently 40 years of age. She has had what is described in the report as "prior involvement" with the criminal justice system.

It is common ground that in October 2008, the offender Motta dealt with three separate offences occurring in November 2007 and further offences in February of 2008. The November 2007 offence was a theft over $5,000. The second offence dealt with was a February 2008 breach of an undertaking or recognizance. The third offence was a further theft over $5,000 which had an offence date of 12 February 2008. [ 27 ] On 22 October 2008, those matters were dealt with by way of a probation order for a period of one year and a suspended sentence on each of the matters. I am presuming that those sentences ran concurrently.

The offences are unrelated to the subject matter of the offence before me. [ 28 ] The pre-sentence report for the offender Motta further indicates that she had a prior severe addiction to heroin in her early thirties. That had very negative consequences for her. She lost her home, family, and friends. Approximately six years ago, she started to deal with her addiction, and for the last period of approximately five years, she has been a resident on Gabriola Island. [ 29 ] Fairly recently, her 15-year-old son has relocated from his father's care in Ontario and has taken up residence with the offender Motta.

This offender has taken up the task of what is described as a "new beginning with her son" and is now providing primary care and parenting for this child. [ 30 ] This offender receives disability benefits and works part-time as a housekeeper at The Haven, which is a facility located on Gabriola Island. [ 31 ] The report confirms that she has taken responsibility for the incident, although the report does indicate that she does not have a detailed recollection of the incident. [ 32 ] The report also confirms full compliance with the terms of her judicial interim release. The report looks back at her offences for

which she was sentenced in 2008 and makes the positive observation that this offender made steady progress in addressing her problems and that during the period of her probation, she addressed her substance abuse issues. [ 33 ] The report makes the following observation which speaks well of this offender [as read in]: Michelle's involvement in prosocial activities includes her employment, her renewed responsibilities and relationship with her 15-year- old son, and her volunteer work in the community on Gabriola Island.

She says she is fearful of the outcome at court should she receive a custodial sentence as her son, who already lost her to addiction when he was a child, would lose her again. [ 34 ] The report confirms that as a result of the charges, that this offender has been negatively impacted by way of a loss of respect within the small community of Gabriola Island. She, in fact, lost one of her jobs at a local food market as a result of the charges being laid against her. [ 35 ] She, like the offender Simonovic, entered a plea of guilty on these charges approximately one week before the trial.

Again, that plea was entered after lengthy discussions between Crown counsel and the respective counsel for the offenders in this case. Position of the Crown on sentencing [ 36 ] It is Crown's position that given the nature of these charges, that is, the trafficking in a controlled substance, and given the serious impact of drugs on the local community, that these charges warrant custodial sentences of six months for each of the two offenders plus a 12-month probation order.

Positions of the offenders on sentencing [ 37 ] Legal counsel for each of the offenders take an entirely different approach to what is a fit sentence. Each of them asserts that a proper approach to sentencing would see the imposition of a suspended sentence for these offences on each of the offenders. [ 38 ] In addition, the suggestion is that there be a lengthy probation order that would accompany the suspended sentence.

There is a suggestion by the offender Simonovic's counsel that the probation order should run for a period of some two to two and a half years, while the suggestion on behalf of the offender Motta is that the appropriate probation order should run for a period of about two years. [ 39 ] I think it is common ground in the positions of defence counsel that any provisions attached to the probation order would both provide guidance and support to the two offenders but also make them aware of their responsibility for their behaviour within the community.

The thrust of the probation order, however, would be rehabilitative in nature. Case authorities relied upon by Crown [ 40 ] Crown has relied on three cases. These cases support Crown's proposition and submission that any sentence must adequately deal with the sentencing considerations of deterrence and denunciation. [ 41 ] The first decision relied upon by Crown is R. v. Cisneros , 2014 BCCA 154 . This is a decision from our British Columbia Court of Appeal.

The Court of Appeal was hearing an appeal of a fine of $2,000 and a one-year probation order arising from the offender pleading guilty to one count of possession of cocaine for the purposes of trafficking in an admitted busy dial-a-dope business. The offender in that case was not an addict. Clearly, the motivation was greed and profit. [ 42 ] The offender in that case had no prior criminal convictions.

The Court of Appeal opined that notwithstanding the removal of the availability of a conditional sentence given the timing of the offence and the changes to the Criminal Code , the court was of the view that a conditional sentence in those circumstances would very much be the exception.

As a result, the court varied the sentence to six months' imprisonment and also indicated that the sentencing range for the offence was not less than six months and expressed the view that there were no circumstances in that case that were extraordinary in nature, and accordingly, that range was appropriate. [ 43 ] The second case relied upon by Crown is R. v. Ladret , 2012 BCCA 401 . Again, the thrust of this case dealt with an appeal of a sentence imposed by the trial judge.

At the sentencing hearing, Crown had sought imprisonment of eight months, and defence counsel had agreed that the range was six to nine months but sought a conditional sentence. In that case, it was a dial-a-dope operation in Campbell River.

The offender in that case had previous convictions for possession of illegal drugs and for operating a motor vehicle while prohibited and for theft under $5,000 and failing to stop for police when directed. [ 44 ] The sentencing judge did sentence the offender in that case to a custodial term of eight months and declined the granting of an order for a conditional sentence which was available at that time, citing the fact that this was a dial-a-dope operation. [ 45 ] In the reasons for the Court of Appeal, Madam Justice Newbury referred to the insidious aspects of dial-a-dope operations which make drugs such as cocaine readily available throughout the Lower Mainland.

In that case, the Court of Appeal noted, as cited in R. v. Barrick , 2012 BCCA 83 , that conditional sentences did not necessarily provide the appropriate denunciation and did not meet general sentencing principles of deterrence and denunciation which were essential in dial-a-dope type operations. [ 46 ] The third decision relied upon by Crown is the decision of Judge Baird Ellan in R. v. Thompson , [2010] B.C.J. No. 2286 , a decision of our Provincial Court. In this case, the accused pled guilty to drug trafficking by way of a dial-a-dope operation.

When he was arrested on the second occasion, the offender was found to be in possession of three grams of crack cocaine in 11 individual packages and seven grams of powder in 14 packages plus some cash which appears to have been derived from the sale of drugs. The offender was a recreational user of cocaine on occasion, but not an addict at the time of the offence. [ 47 ] In this case, the learned judge indicated as follows at paragraph 19: 19 In my view, however, the recent B.C. Court of Appeal cases support a conclusion that a jail sentence is a fit response to offences

involving dial-a-dope trafficking, even at the lower end of the scale. There are cases in which there are mitigating circumstances, such asaddiction or overriding compelling personal circumstances, which indicate or suggest that the person is not of an operating mind or thatthere are factors compelling a person to commit an offence which do not allow him to properly reflect on his actions, in whichcircumstances deterrence might not properly operate.

In those cases, certainly the court may give consideration to a conditional sentenceorder, and in any case, for that matter. [48] In that case, the decision of the court was that a conditional sentence, given the dial-a-dope aspect of the offence, would not beadequate deterrence, and accordingly, a period of six months of incarceration was imposed upon the offender. [49] The thrust of Crown's submissions is that these types of offences must be taken very seriously by the courts and Crown'ssubmission, as I understand it, is that a suspended sentence does not provide the necessary amount of denunciation that our Court ofAppeal suggests is warranted in matters of this nature.

Case authorities relied upon by the offenders [50] Although the offenders relied on different cases, they also accepted the propositions enunciated in each of the other cases towhich reference was made by counsel for their co-accused. [51] With respect to the offender Simonovic, the following cases were cited: R. v. Ilicic, [2012] B.C.J. No. 2056, a decision of ourBritish Columbia Supreme Court; R. v. Owens, 2014 BCSC 32, again, a decision of our Supreme Court; R. v. Voss, 2014 BCPC 43, adecision of our Provincial Court; R. v.

Voong, 2014 BCPC 211, again, a decision of our British Columbia Provincial Court; and R. v.Fergusson, 2014 BCCA 347, a decision of our Court of Appeal. [52] The decisions relied upon, in addition to the ones that I have made reference to above, by the offender Motta include R. v.Nguyen, 2009 BCSC 1727, a decision of our Supreme Court; R. v. Le, 2012 BCSC 725, again, a decision of our Supreme Court; and thena very recent decision, R. v. Galang, a decision of the Honourable P.D. Gulbransen, on Surrey Registry File 202932-1, neutral citation2014 BCPC 240 , 2014 BCPC 0240.

That decision was rendered on October 15, 2014. [53] The general theme contained within each of the cases that has been relied upon by defence is to the effect that there may well begood reason for custodial sentences in order to satisfy the goals of deterrence and denunciation, but there are other factors that must betaken into account in crafting sentences and that such circumstances must be looked at on an individual basis with respect to each of theoffenders. [54] I will make brief reference to the decisions that are relied upon by defence. [55] The Ilicic case involved an offender who sold marihuana in the amount of seven grams at a price of $60, and the offender wasfound to be in possession of cocaine in the amount of some five grams.

Crown was seeking a six-month conditional sentence, anddefence was seeking a conditional discharge. In this case, the offender was 31 years of age, had no criminal record, but he did have alongstanding substance abuse issue and had struggled with addiction throughout most of his adult life.

What was important as far as Mr.Justice Williams was concerned was the observation that the offender had made a major fundamental change in his life and had takensteps to rehabilitate himself and that there was genuine remorse for his conduct. [56] At paragraph 15, the learned justice states as follows: [15] Both the Criminal Code and the Controlled Drugs and Substances Act specifically articulate the sentencing principles that mustapply when the court comes to sentence an offender.

High among those is the need for responses that will denounce unlawful conductand deter both the offender and others who might be minded to conduct themselves in a similar way. Those concerns support significant,stern consequences. [16] There are other considerations as well, including the rehabilitation of the offender and the accountability of the offender. Theultimate underlying concept is to secure the protection of the public. [57] In that decision, the court treated the matter as a "rare and exceptional case" where the imposition of a conditional dischargecould properly be made.

Accordingly, a conditional discharge was imposed accompanied by a probation term for 18 months with somedetailed conditions attached to it. [58] The Owens case is a decision of Madam Justice Griffin. In that case, the offender was a 21-year-old who was found to be inpossession of 22.1 grams of cocaine, 17 ounces of marihuana, possibly $1,000 in cash. The offender had no prior record. The offenderhad been under strict bail conditions and had abided by those and had full-time employment. He was making efforts to contribute to thecommunity by organizing a fundraiser for an ill friend.

The sentence imposed by the court was a sentence of two years' probation and avictim fine surcharge of $200. [59] The suspended sentence in that case was held by the court to be an appropriate and fit sentence for the offender in thosecircumstances. The court held that with the imposition of the suspended sentence the principles of sentencing could be satisfied.

Thecourt noted, at paragraph 49, that: Society reserves the greatest sentence for the very worst offenders and offences; but also allows for the possibility of reform of offenderswho may have made serious mistakes but who seek to turn their lives around. [60] The conclusion also reached by the learned justice in that case was that a period of probation with appropriate terms alsoamounted to a serious restriction on the liberty of the offender and could put the offender in a longer period of supervision than maynecessarily flow from incarceration.

It was also the conclusion that the fairly lengthy period of probation would provide a better prospectfor truly integrating the offender back into society: see paragraph 57. There was also a conclusion reached that the offender in that casewas of little risk to offend.

[ 61 ] The Fergusson decision is, of course, a very recent decision of our Court of Appeal. In that decision, the offender sold .2 grams of crack cocaine to an undercover police officer for $20. The 33-year-old offender, at the time of the sentencing, had a lengthy criminal record that included 2004 convictions for trafficking and possession for the purposes of trafficking.

At the time of the current offence, the offender was on bail on a robbery charge, and he subsequently received a sentence of three years' probation on the robbery charge. [ 62 ] The court took into account all of the circumstances in that matter and noted that Crown had sought a sentence of three months' imprisonment and that counsel for the defendant had sought a conditional sentence.

The trial court had imposed a six-month conditional sentence to be followed by 12 months of probation. [ 63 ] The Court of Appeal varied the sentence imposed on the trafficking charge by setting aside the six-month conditional sentence and the 12-month probation order and substituted for it a suspended sentence and 18 months' probation on specific terms. [ 64 ] The decision of the Honourable Judge Gulbransen in Galang deals with the issue of a suspended sentence being an appropriate disposition in drug trafficking situations. In that case, the offender sold $100 worth of cocaine to an undercover police officer.

Crown asserted that this was part of a dial-a-dope operation and that the offender should receive six months in prison. The court noted that this 22-year-old offender had no criminal record and had complied with all the terms on his release. He had a good work record, and he had been steadily employed at various jobs. He got involved in drug trafficking to help a friend whom he met and made some unfortunate decisions to assist that friend, which involved selling drugs.

The accused was not an addict. [ 65 ] Judge Gulbransen notes that s. 731(1) of the Criminal Code provides that if there is no minimum sentence prescribed for an offence, a court may suspend the passing of sentence and place the offender on probation, and in doing so, the court must have regard to the age and character of the offender, the nature of the offence, and the circumstances surrounding its commission: see paragraph 13. [ 66 ] Judge Gulbransen also notes, at paragraph 14, as follows: [14] S. 732.2(5) of the Criminal Code provides that if a person who is subject to a suspended sentence is convicted of another offence during the probation term, including a breach of the probation order, the court that made the order may revoke the order suspending sentence and" … impose any sentence that could have been imposed if the passing of sentence had not been suspended … ." [ 67 ] The Galang decision also deals with an analysis of the re-emergence of suspended sentences in drug trafficking cases.

Judge Gulbransen notes at paragraph 27 as follows: [27] There was a dearth of jurisprudence, until recently, on the issue of whether a suspended sentence was appropriate for "dial-a- dope" cases. Such arguments have arisen more frequently since the Criminal Code was amended to eliminate the availability of conditional sentences. [ 68 ] At paragraph 29, he says as follows: [29] When conditional sentences were available for this type of offence, there was no practical reason for an accused to seek a suspended sentence.

A conditional sentence, if the accused obeyed it, looked and felt very much like a suspended sentence. In particular, in both cases the offender was not, at least initially, confined to a prison.

As well, in either case, the accused had to report to a probation officer (called a "supervisor" for a conditional sentence), obey certain conditions, including perhaps taking some counselling or treatment and performing community work service. [ 69 ] At the end of his decision, the learned judge held that the matter was appropriate for a suspended sentence and accordingly suspended sentence and placed the accused on probation for one year with various conditions, including community work service (see paragraph 39). [ 70 ] As indicated in the cases to which I have referred, ss. 718 to 718.2 of the Criminal Code set out the purpose and principles of sentencing.

This is not a matter to which a conditional sentence order is available as a result of the operation of s. 742.1 (

e) of the Criminal Code . [ 71 ]

Section 718.1 directs that "a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender." [ 72 ]

Section 718.2 requires that the court look at the relevant aggravating or mitigating circumstances relating to the offence or the offender.

Aggravating factors [ 73 ] In this case, Crown asserts that this court should take into account the following aggravating factors: first of all, the dial-a-dope nature of the transaction in which the offenders were involved; second, the harmful effects of hard drugs in communities and, I may infer, particularly harmful in smaller communities. [ 74 ] The Crown asserts, although it is disputed by defence, that there was not a particularly early guilty plea being proffered in this case.

Mitigating factors [ 75 ] The mitigating factors which have been put to me and which are being relied upon first of all by Crown is that both of the offenders in this matter have positive pre-sentence reports that have been prepared and submitted on their behalf. [ 76 ] The mitigating factors relied upon by defence are: the remorse expressed by each of the offenders for their offences;

• the loss of standing within their local communities; • in the case of Ms.

Motta, a loss of employment as a result of the charges; • the fact that each of the parties have taken concrete and positive steps to deal with both past as well as more recent drugaddictions; • the significant change in circumstances of each of the offenders insofar as each now has parental responsibilities which may beadversely impacted should a custodial sentence be imposed. [77] With respect to the aggravating factor of this being in the nature of a dial-a-dope operation, I note that where an aggravatingfactor is in dispute, s. 724(3) of the Criminal Code places the burden on the Crown of proving the aggravating factor going to the gravityof the offence and that the burden of proof is beyond a reasonable doubt: see R. v.

Gardiner, (SCC), [1982] 2 S.C.R.368. Analysis [78] In my view, based on the submissions I have heard, I cannot conclude that Crown has discharged the burden of proving that thiswas a dial-a-dope operation. I do take into account that there was obviously a phone call made by the offender Motta and that theoffender Simonovic did respond. However, there is nothing in the circumstances as proffered by Crown that there were any otherincidents or that there was anything in the nature of a well-organized or even a poorly organized drug trafficking business taking place inall of the circumstances this case.

Accordingly, I reject that as an aggravating factor in terms of sentencing. [79] Having regard to the facts as outlined by the Crown in this case, and having regard to the information before me by way of thepre-sentence reports, I am of the view that incarceration is not necessary in order that there be an adequate level of deterrence anddenunciation.

This is a situation where it is important that I look at the individual circumstances of each of the offenders, where theywere at in their lives at the time of the offence, where they have presently reached by way of concerted efforts on their part, and by theadoption of a more positive and constructive lifestyle. [80] I am also persuaded by the information that has been submitted to me by way of the letters of support that each of the offendershas filed, that a custodial sentence in these circumstances would not be a fit sentence and would overemphasize the aspects ofdenunciation and deterrence while not giving sufficient weight to a rehabilitative sentence.

Conclusions [81] I conclude that an appropriate sentence in this matter will be a suspended sentence for each of the two offenders. There will bean accompanying probation order. That probation order will contain both rehabilitative terms as well as terms of supervision sufficient toensure the continued rehabilitation of each of the offenders.

The duration of that probation order will be 26 months. [82] Before I proceed with the terms of the probation order, I will ask Crown counsel to provide submissions with respect to whatthose terms of the probation order they would be seeking are and also to hear from defence counsel with respect to any changes theymay think may be necessary or appropriate. (SUBMISSIONS) [83] THE COURT: These will be the conditions that will attach to the probation order that I have imposed.

I am going to ask bothof the accused to stand, please. [84] I am going to say this to you, not because I am singling you out, but I want to make it very clear. When the court imposesconditions upon you, those are things you must do. You cannot treat them like a suggestion. If you do, then you face the prospect that you may be, as that term that is used, "breached" orface further charges for your failure to comply with the conditions. Do you understand that? You both understand that? Thank you. [85] All right.

So the conditions will be as follows: to keep the peace and be of good behaviour and attend court when required todo so by the court. [86] I am going to require that you report to and be under the supervision of a probation officer and that you must report no later than4 p.m. tomorrow at the address to be provided to you of the probation office here in Nanaimo, and you are to report thereafter as directed. [87] You are to notify the court or your probation officer of your current residential address, and you are not to change that addresswithout the prior permission of your probation officer. [88] I am going to impose a further condition that you must abstain absolutely from the use, possession, or consumption or any illicitor illegal substances as defined by the Controlled Drugs and Substances Act unless with a valid medical prescription in your name. [89] I am going to impose a condition that you shall not possess any pipes, syringes, or other drug paraphernalia. [90] I am going to impose a condition that you not attend at the Skol Pub on Gabriola Island. [91] I am going to impose the condition you must attend, participate, and successfully complete any assessment and any counsellingas directed by your probation officer. [92] I am also obliged to make an order which will not form part of the probation order.

I believe those were all the conditions thatwere being sought. Did I miss any? All right.

[ 93 ] Then the Crown sought some additional orders. One was a prohibition, I believe, under s. 109. What was the period that you were looking for in that? [ 94 ] MS. MORRISON: Ten years. [ 95 ] THE COURT: A 10-year prohibition of weapons under s. 109 of the Criminal Code . [ 96 ] I am going to make the DNA order in this case. Even though the amount of the drugs was limited in this case, it still is a matter of concern for any offences under the Controlled Drugs and Substances Act , and I think in this case it is appropriate. It meets the requirements for an order for DNA to be provided.

So with respect to giving that DNA sample, in Nanaimo it is when, Wednesdays? [ 97 ] THE CLERK: Wednesdays between 1 and 4, Your Honour. [ 98 ] THE COURT: Every Wednesday between 1 and 4? [ 99 ] THE CLERK: Yes, so if you give a specific date. [ 100 ] THE COURT: All right. I am going to require -- I will give you -- [ 101 ] THE CLERK: Or within 30 days? [ 102 ] THE COURT: Yes.

I am going to make it -- I think what I will do is that they are to report at a police station of their choice for the purposes of providing a DNA sample within 30 days of today's date and leave it to counsel to explain how they determine the appropriate dates in order to attend and provide the DNA sample. All right? [ 103 ] Now, that leaves me with the victim fine surcharge. The offences, did they occur before or after the -- [ 104 ] MR. HARVEY: Before. [ 105 ] THE COURT: Before. So I am in a position to waive the victim fine surcharge? [ 106 ] MR. HARVEY: You are. [ 107 ] THE COURT: All right.

Given the financial circumstances of each of the parties that is evident from the pre-sentence report, I am going to waive the victim surcharges in this case for each of the offenders. [ 108 ] MR. HARVEY: Thank you. Your Honour, I just have one further comment. You mentioned about report by 4 p.m. tomorrow. My client, of course, lives in Victoria. [ 109 ] THE COURT: Yes. [ 110 ] MR. HARVEY: So I'm wondering if you can order her to report by 4 p.m. tomorrow at the address that's noted on -- in condition 201 as suggested by Ms.

Cole, that being 836 Courtney Street in Victoria, please. [ 111 ] THE COURT: Does Crown have any problem with that? I mean, that is more convenient. [ 112 ] MS. MORRISON: Oh, no, not at all. [ 113 ] THE COURT: All right. Then I will amend the reporting direction for Ms. Simonovic such that she is to report in person before 4 p.m. tomorrow to the probation office at 836 Courtney Street, Victoria, B.C. So that will be the amendment to that order. [ 114 ] MR. HARVEY: Yes. [ 115 ] MR. WILLIAMS: Your Honour, my client indicates she works tomorrow until 5:30.

Can this be done by Monday at 4 p.m.? [ 116 ] THE CLERK: Your Honour, noting the time, the documents -- they're gonna -- the registry's going to tell them to come back tomorrow to sign anyway. [ 117 ] THE COURT: All right. I will make it -- that is with respect to -- [ 118 ] MR. WILLIAMS: Motta. [ 119 ] THE COURT: -- Ms. Simonovic, so -- [ 120 ] MR. WILLIAMS: No, Ms. Motta. [ 121 ] THE COURT: Ms. Motta, I'm sorry. So Ms. Motta is to report to the probation officer here in Nanaimo no later than 4 p.m. on Monday. [ 122 ] MR. WILLIAMS: Thank you. [ 123 ] THE COURT: That date being -- that is the 20th; is it?

October 20th? All right. [ 124 ] MR. WILLIAMS: Yes. [ 125 ] THE COURT: All right. 2014.

[ 126 ] MR. WILLIAMS: I think it's the Monday. [ 127 ] THE COURT: No, the 19th is the Sunday, according to my calendar. The 20th. [ 128 ] MR. WILLIAMS: Today's Thursday. [ 129 ] THE COURT: The 20th. All right. [ 130 ] MR. HARVEY: Now, just lastly, Your Honour. May my client attend -- given the documents won't be ready today and my client has to return to Victoria now this evening, so could she -- she will attend the court registry tomorrow to sign the document? Would that be fine? [ 131 ] THE COURT: In Nanaimo? [ 132 ] MR.

HARVEY: No, in Victoria at the courthouse tomorrow to sign the probation order -- [ 133 ] THE COURT: Yes. [ 134 ] MR. HARVEY: -- and then report from there. She'll report probably tomorrow. [ 135 ] THE COURT: All right. [ 136 ] MR. HARVEY: Could she sign tomorrow rather than return here? [ 137 ] THE COURT: I have no problem. Is there -- [ 138 ] THE CLERK: Your Honour, what they do is they -- like, we're all connected. They can electronically print it. [ 139 ] THE COURT: All right. Then she is to attend for the purposes of signing the probation order in Victoria tomorrow before 4 p.m. [ 140 ] MR.

HARVEY: Yes, thank you. [ 141 ] MR. WILLIAMS: Thank you, Your Honour. [ 142 ] THE COURT: Anything further? [ 143 ] MR. HARVEY: No. [ 144 ] THE COURT: All right. And to both ladies, remember what I said about the orders. Strict compliance; all right? I wish you good luck in completing all the terms and conditions of your orders and in carrying on with your lives in a positive fashion. Thank you. [ 145 ] THE ACCUSED: Thank you. (REASONS CONCLUDED)