Her Majesty the Queen - v. -, 2012 SKPC 186

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 186 Date: December 11, 2012 Information: 24386058 Location: Wakaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Elcid Terrance Agecoutay Appearing: T. Forsyth For the Crown D. Winegarden For the Accused SENTENCING DECISION I. J. CARDINAL , J Introduction [ 1 ] On May 10, 2011, Mr. Agecoutay attended at Provincial Court in Wakaw. Another person, a prisoner, was sentenced to a lengthy period of incarceration. This person sat down in the front row and Mr.

Agecoutay passed him a package and the prisoner put it in his sleeve. The police observed this and immediately seized the package. It contained 1.5 grams of cannabis marihuana and another substance which was not a prohibited drug. He was charged and pled guilty to trafficking in cannabis in an amount not exceeding three kilograms contrary to sections 5(1) and 5(4) of the Controlled Drugs and Substances Act ( CDSA ).

Position of the Parties [ 2 ] The Crown seeks a sentence of 15 months incarceration and argues against a conditional sentence being imposed. The most aggravating factor is that the accused approached the individual, a prisoner, in Court and passed drugs to him.

Other aggravating factors include the lengthy criminal record of the accused with numerous breaches including previous Conditional Sentence Orders (CSO); his recent consumption of drugs and alcohol; and the residence that he shares with his common-law spouse and a friend, both of whom use drugs and alcohol. [ 3 ] Defence counsel submits that while a period of incarceration is warranted, a conditional sentence of 12-18 months is appropriate given the guilty plea, the favourable Pre-Sentence Report (PSR), and the positive changes Mr. Agecoutay has made in his life.

The accused was motivated to undertake this offence as a means of severing his ties with a gang. It was an unsophisticated and unprofessional plan, where the accused simply handed the item to the prisoner in front of the police and Court. He also argues this was not a commercial transaction and only a small amount of cannabis was involved.

The accused is willing to follow any terms ordered, including electronic monitoring, abstaining from drugs and alcohol, and other terms as outlined in the PSR or determined by the Court. [ 4 ] This offence carries a maximum sentence of five years less a day imprisonment, but there is no minimum punishment. I agree with the parties that incarceration is warranted and the sentence of imprisonment should be of less than two years. Thus, it is a matter of whether or not the accused should serve the sentence of incarceration in the community by way of a conditional sentence.

Availability of a Conditional Sentence [ 5 ] It should be noted that while it may be unusual to impose a conditional sentence for trafficking in a controlled drug, such a sentence is available even to offenders convicted of trafficking in cocaine or other hard drugs. (See , for instance, R. v. Laliberte, 2000 SKCA 27 ; R. v. Keepness, 2000 SKCA 28 ; R. v. Von Hagen , 2008 SKCA 123 ; R. v. P.(S.A.), 2005 SKPC 25 ; R. v. Klyne , 2003 SKPC 95 ; R. v. Chaves, 2002 SKQB 4 ; R. v. Balon, 2009 SKQB 233 ; and R. v.

McCallum, 2012 SKPC 162 .) [ 6 ] Before I can impose a conditional sentence pursuant to s. 742.1, I must be satisfied that doing so: a. Would not endanger the community and b. Would be consistent with the fundamental purposes and principles of sentencing set out in s. 718 to 718.2. I will address each of these factors. Would Not Endanger the Community [ 7 ] The PSR was completed by an experienced probation officer, is thorough, and contains much information. Mr.

Agecoutay is a 28 year old Aboriginal man whose criminal lifestyle began in 2000 as a youth and extended into his adulthood on almost a yearly basis until 2009. Most convictions are for property offences and breaches of court orders of various types. Of the 27 convictions as a youth, two were for violence and one for possessing a weapon. As an adult, he accumulated 42 convictions, two of which were for violence (Assault Causing - 2003; Robbery - 2008) and three for weapons. He had been given a conditional sentence for the robbery conviction, but it was terminated in July 2009 when he committed property offences.

He was also convicted on that date for possession of a

Schedule III drug, his only drug conviction, for which he was sentenced to time served.

[ 8 ] To his credit, until the commission of the current offence, Mr. Agecoutay had remained out of the criminal justice system for approximately two years. [ 9 ] The current offence occurred on May 10, 2011. Initially he was released on a promise to appear on the original charge of simple possession. No change in his release status occurred when that charge was withdrawn and replaced with the current charge of trafficking. Mr.

Agecoutay has been out in the community without conditions or supervision and has not come to the attention of the Court or the police in the one and a half years since the offence occurred. [ 10 ] The PSR found that Mr. Agecoutay’s overall risk for general re-offending was medium. His risk factors include: Family/Marital relationships; residence and employment; stability and self-management. Mr. Agecoutay is addressing these issues as he has gainful, steady employment and more importantly, the support of his common-law wife Brandy Moody. She has been with him since 2009 and has played a large

part in assisting him in leaving his past gang life and criminal behaviour behind him. She is not pleased with her husband and his involvement in the current charge, but she and her family continue to support him on his path of change. He has changed his peer associations to include only those who lead a pro social lifestyle. Some of his siblings are involved in criminal behaviour, but he only associates with those siblings who are willing to change their lifestyle. [ 11 ] While I recognize his lengthy criminal record and his many breaches of conditions in the past, Mr.

Agecoutay has been working on a new future, free of gang and criminal activity. Appropriate conditions can be fashioned to ensure his risk to re-offend is lowered and I find that his serving a sentence in the community would not endanger the community and a conditional sentence is not barred on this arm of the test. Fundamental Principles and Purposes of Sentencing [ 12 ] The crux of the question as to whether Mr.

Agecoutay should be granted a conditional sentence rests on whether a community based sentence, in these circumstances, accords with the fundamental principles of sentencing outlined in s. 718 to 718.2. [ 13 ] Both

section 718 of the Criminal Code and s. 10(1) of the CDSA share the same purpose of sentencing.

Section 718 states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions to address one or more of the following objectives: - denouncing unlawful conduct; - deterring both the offender being sentenced and other persons from committing offences; - separating offenders from society where necessary; - rehabilitating offenders; - providing reparation for harm done to victims or the community; and - promoting a sense of responsibility in offenders, and an acknowledgment of harm done to the community . [ 14 ] The weight placed on each of the above factors will vary depending upon the circumstances of the offence and the circumstances of the offender. [ 15 ] I must also be mindful of s. 718.1 to ensure that the sentence is proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 16 ] Further, s. 718.2 outlines other sentencing principles to be considered before imposing sentence, taking into account both aggravating and mitigating factors.

Section 718.2(

b) through (

e) outline other principles such as parity of sentence and directs courts that particular attention must be given to the circumstances of Aboriginal offenders.

[ 17 ] I note that

section 718.1(iv) provides that it is an aggravating factor where there is evidence that the offence was committed at the direction of or in association with a criminal organization. While this offence was committed at the request of a gang, the Crown did not prove this was a criminal organization within the meaning of the Criminal Code and I will not address this factor. It is relevant, however, that the offence was committed at the request of a gang in order that Mr. Agecoutay could be released from it. Circumstances of the Offence Aggravating Circumstances [ 18 ] Mr.

Agecoutay passed a packet of cannabis to a prisoner in open court. This is an affront to the administration of justice. It is a particularly serious issue in small centres where there are not the usual holding cells and prisoner docks to separate prisoners from the public. That is the case in Wakaw and at many other rural court points. The RCMP often allow family and friends to converse with the prisoners, at a short distance apart, when time allows.

The police do this because they recognize that this may be the only opportunity for them to visit with prisoners who are often remanded or serving in urban centres that are some distance away and travel is not easy to procure. The officers are very observant and very concerned that items may be passed to prisoners whether it be drugs or weapons or other contraband. They responded quickly when the accused passed the packet and were able to intercept it before the prisoner could secret it and take it into the institution where he would be serving his sentence.

These circumstances are a significant aggravating factor. [ 19 ] Mr. Agecoutay admits he committed the offence as “he owed a favour to the gang so he could “get out” and move on with his life”. He states that he was under the influence of substances when he committed the offence.

Mitigating Factors [ 20 ] The drug involved is cannabis marihuana, often referred to as a soft drug, as opposed to cocaine, which is considered a hard drug. [ 21 ] The amount of the drug was small, only 1.5 grams. [ 22 ] The plan to pass it was unsophisticated and unprofessional as it was done in open court where others could see and it was highly likely Mr.

Agecoutay would be caught. [ 23 ] The offence was committed to sever gang connections. [ 24 ] The accused entered a guilty plea and has been in the community without conditions since May 10, 2011 and has not incurred any further criminal charges nor come to the attention of the police or the Court. Circumstances of the Offender [ 25 ] Mr. Agecoutay is a young Aboriginal man currently living in Saskatoon.

The PSR indicates he did not suffer racism but his childhood and early adulthood have been very difficult as he grew up in a very dysfunctional and unpredictable environment marked by family breakdown, alcohol, violence and drugs. He turned to drugs and alcohol at an early age and became involved in gang activity at age 18 after a close cousin committed suicide.

Alcohol, drugs, the gang life, and his reluctance to change his behaviour meant more criminal activity and he spent much time in the criminal justice system going in and out of jail. [ 26 ] In 2009 he and his common-law Brandy Moody (25) began a relationship that continues to this date. She convinced him to drop his gang colours in 2010 and was disappointed when he committed this offence. Fortunately, Ms. Moody and her family have continued to support him and she has come to Court to show her love and support. [ 27 ] Despite his extremely chaotic past, Mr.

Agecoutay has remained out of the criminal system since he completed his sentence in

2009, up until this offence in May 2011. Since the offence date he has not incurred any further charges nor come to the attention of the police. [ 28 ] Not only has Ms. Moody been a positive influence on him, but since September 2011, Mr. Agecoutay has obtained and maintained employment with a construction company. His employer describes him as a good reliable young man, easy to get along with and one who rarely missed a day of work. He too is very supportive and willing to sponsor Mr. Agecoutay so he can obtain his carpentry papers and other courses in the future. [ 29 ] Mr.

Agecoutay shows insight into his problems and how things have gone wrong for him in the past. He knows what exposure to alcohol, drugs and gang affiliation have done to him and he wonders how his life could have been different if he had a stronger support system. His parents and grandparents attended residential schools, and while they did not speak about their experiences, he feels it has impacted upon him due to his parents’ alcohol and drug abuse. He states he is proud of his Aboriginal heritage and the customs and teachings passed onto him by his grandfather, with whom he lived for some time. [ 30 ] Mr.

Agecoutay is remorseful for his actions and wants to put the past behind him. He is willing to follow any conditions imposed if the Court orders a community based sentence. Although he admits that he, his common-law, and their roommate have recently used alcohol and drugs, he indicates he will abide by conditions that he not possess or use them. [ 31 ] The PSR cautiously recommends a conditional sentence with electronic monitoring and strict conditions. Of concern is the stability of his residence, which he and Ms.

Moody share with another person, and his admission of recent use of drugs and alcohol by all three of them. However the PSR notes that it is a positive factor in his favour that his criminal activity has slowed down and he has stable employment. Case Law [ 32 ] Conditional sentences for drug related offences are not usual, especially when the trafficking involves someone bringing drugs into a correctional institution or a Court. As a general rule, such conduct will result in a period of incarceration. For example, in R. v.

Litwin , 2008 SKCA (SentDig) 23, the accused’s common-law wife visited him in prison and gave him two packages of marihuana. He stuffed one down the front of his pants; authorities found it. The other package, containing 4.6 grams of marihuana, was hidden in his body and he was able to distribute the contents among inmates. He had a lengthy criminal record. The initial sentence of 15 months incarceration was upheld on appeal. [ 33 ] The Saskatchewan Court of Appeal has recognized that in some cases, a conditional sentence is appropriate even where cocaine is brought into an institution. In R. v.

Von Hagen , 2008 SKCA 123 , the Saskatchewan Court of Appeal reversed a custodial sentence for cocaine trafficking into a federal penitentiary. The Court acknowledged that the accused was under duress and had been threatened to commit the offence. Justice Lane, at paragraph 5 states: [5] We are all of the view the sentence imposed was not a fit sentence. We share the sentencing judge’s concerns about drugs in a penal institution and this Court has ruled that bringing drugs into a correctional facility is an important aggravating factor. In this case the appellant was a first time offender and 18 years of age.

We take particular note she was under duress because of threats. The appellant has done well since the offence, has moved to another city to avoid peer pressure, has ended her relationship with her boyfriend, has taken training, and is now working full time. She has the full support of her family and is rated as a low risk to re-offend in a very positive pre-sentence report. We note further her employer, along with her family, attended the appeal in support of the appellant who has been in custody since the sentence was imposed.

In our view the personal circumstances of the appellant and the principle of rehabilitation were not adequately addressed. We are also of the view the sentencing judge inappropriately discounted the fact the appellant was under duress from threats which were made - in our view a very significant consideration in this case. His reliance on Pankewich in the circumstances failed to reflect the different circumstances in the case before us. Pankewich was part of a sophisticated cocaine trafficking arrangement involving a considerable greater amount of drugs which were being moved interprovincially . [ 34 ] In R. v.

Randell , 2011 SKCA 124 , the Saskatchewan Court of Appeal overturned a conditional discharge and imposed a sentence of nine months incarceration by way of a Conditional Sentence Order on a count of possession of cannabis for the purpose of

trafficking. The accused and her co-accused were roommates. The co-accused had lost her job and took to selling drugs from the apartment. The accused would sell drugs when the co-accused was unavailable and did so to undercover police officers. This was part of a commercial enterprise and was not a single impulsive act but rather deliberate acts that occurred over an extended period of time.

There were mitigating factors and the Court noted her post-sentencing conduct had been exemplary. [ 35 ] Sentencing is, as the case law reflects, an individualized process that takes into account all of the surrounding circumstances and factors. It requires the Court to balance many things bearing in mind the fundamental purposes and principles of sentencing, the circumstances of the offence and the circumstances of the offender. While one offender may be granted a conditional sentence for trafficking in marihuana, another offender in their unique circumstances may not.

Decision [ 36 ] It was not contested that Mr. Agecoutay undertook this drug transaction as a means to an end-it was his way to sever his gang ties and be freed from the gang lifestyle. While the Court does not condone his behaviour, one can understand it when viewed against the background of chaos and criminal behaviour that was his past. [ 37 ] Mr. Agecoutay has expressed remorse for his behaviour and it is sincere and I accept it. His efforts at rehabilitation are well underway and ongoing.

Supervision and electronic monitoring can address the principles of denunciation and deterrence that are foremost in this case. [ 38 ] While I am concerned about his recent drug and alcohol use, and the suitability of his residence, strict conditions can address this for Mr. Agecoutay. Although I cannot place Ms. Moody under these same conditions, she undoubtedly realizes these are necessary to ensure Mr. Agecoutay continues on his healing path.

Hopefully she will continue to support him and encourage him to comply with the conditions and take this journey with him. [ 39 ] Considering the fundamental principles and purposes of sentencing and all of the surrounding circumstances, I find a fit sentence is 15 months incarceration to be served in the community by way of a conditional sentence.

The first nine months of the conditional sentence will be under supervision, including electronic monitoring, and corresponding conditions. [ 40 ] The remaining six months of incarceration will be under supervision on conditions that continue to enhance respect for the law and ensure Mr. Agecoutay is held accountable for his actions while continuing to address his risk factors. I.J. Cardinal, J