R. v. Brown, 2014 ONCJ 179

Information No. 12-2337(01) Citation: R. v. Brown , 2014 ONCJ 179 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN vs. DYLAN HOLLIS BROWN R E A S O N S F O R S E N T E N C E BEFORE THE HONOURABLE JUSTICE G.M. HORNBLOWER JANUARY 30, 2014, at SARNIA, Ontario. APPEARANCES : M. Robb counsel for the Federal Crown

D. Stoesser counsel for D. Brown THURSDAY, JANUARY 30, 2014 R E A S O N S F O R S E N T E N C E THESE REASONS CONTAIN CORRECTIONS MADE TO THE ORIGINAL JUDGMENT AS REFLECTED IN THE CORRIGENDUM WHERE THE CORRECTIONS OCCUR. HORNBLOWER, J. : (Orally) Dylan Brown is before the Court for sentence having pled guilty to a charge of possession of methamphetamine for the purpose of trafficking. (CORRIGENDUM: THE FOLLOWING WORDS ARE DELETED AND DO NOT FORM PART OF THESE REASONS.) possession of cannabis marihuana and possession of a weapon .) The Crown argues for a sentence of four years.

The defence’s position is that while Mr. Brown would be an appropriate candidate to receive a conditional sentence were they available for an offence of this type, but since it is not available a two-year penitentiary sentence is appropriate. The Crown has provided a useful case brief. The cases sited reflect a range of sentences between two years and seven years and from a review of these cases it appears there are several principles to be followed in assessing sentence.

As a rule of general application, sentences for persons convicted of possession for the purpose trafficking will fall within a range of sentence determined by whether the nature of the trafficking would be considered as low-level, mid-level or upper-level as determined by the quantity of the drug involved. Upper-level offences for a substance of this nature are those similar to what Justice MacDonnell dealt with in R. v. Villaneuva [2007] O.J. No. 858 OCJ . The offender in that case had pled guilty to two offences of trafficking in methamphetamine and possession for the purpose of trafficking in methamphetamine.

The quantity of drugs found was 168 grams and 1,006 grams respectively. The offender was 22 years of age with no prior record. Justice MacDonnell imposed a sentence of five and a half years. In R. v. Liu [2009] O.J. 2390 , the offender had pled guilty to trafficking 33.5 grams of methamphetamine as well as possession for the purpose of trafficking a quantity in excess of one kilogram of methamphetamine. Although referred to as a mid-level dealer the quantity would be consistent with what I would consider as an upper-level offence.

A sentence in that instance of six years was imposed; the offender was 27 years of age with no prior record. A discernable range between five and seven years would seem to be the appropriate range for upper level offenders. In R. v. Ho an unreported decision of Justice Malloy of the Superior Court of Justice a sentence of four years was imposed. The offender had been found guilty of possession of 115.4 grams of methamphetamine for the purpose of trafficking.

With respect to that sentence of note is that the offender had a prior criminal record including a conviction for conspiracy to traffic in ecstasy, possession of ecstasy and conspiracy to produce marijuana for which a three and a half year sentence had previously been imposed. Within the Ho decision Justice Malloy referred to R. v. Copeland [2000] O.J. 3390 also a decision of the Superior Court of Justice where a sentence of three years was imposed for possession for the purpose of trafficking involving one quarter kilogram of methamphetamine.

Justice Spies accepted a joint submission for a three year sentence and in doing so noted that the joint submission was at the low end ofthe range. Ho and Copeland can be said to have involve possession for the purpose in a mid-level range for which an appropriate rangeof sentence would appear to be between three and five years. In R. v. Paper 2010 ONCJ 88 , [2010] O.J. 1131, Justice Brown, of the O.C.J. imposed a sentence of two years. In doing so shecommented that the Crown’s submission for a sentence of between two and half and three years was within the range.

The Court ofAppeal did not interfere with the sentence imposed by Justice Brown. The facts in Paper are somewhat unique given that the offenderpled guilty to a total of eight counts of possession for the purpose of trafficking including sixty grams of methamphetamine and 300oxycodone, codeine and morphine pills all of which are

Schedule I substances as well as several offences of a similar nature involvingSchedule II substances. The offender was 33 years of age with no prior record. In R. v. Mills, an unreported decision of Justice Lynch of the Ontario Court of Justice on January 31, 2011, a sentence of three and a halfyears was imposed for an offence of possession for the purpose of trafficking in 85.85 grams of methamphetamine. Of significant note isthat at the time that the offence was committed the offender was serving a conditional sentence imposed for two counts of possession forthe purpose of trafficking in

Schedule I offences. Given the quantities involved in Mills and Paper they would be considered aspossession for the purpose of trafficking offences in the low-level range and an appropriate range of sentence would appear to bebetween two and three years. In determining the actual sentence, the classification of the offences as low, mid and upper level is a useful starting point as is the rangeof sentence for each of those categories.

In assessing the appropriate sentence, the presence of mitigating factors such as youth, lack of aprior record, drug addiction, guilty plea and efforts of rehabilitation are among the factors that would suggest a sentence at the low endof the range and even below the range if the circumstances are appropriate. Aggravating factors such as a prior record, the purecommercial nature of the offence and gang affiliation are all factors that would suggest a sentence at the upper end of the range andbeyond.

In Mills for example, while the range for low-level offences can be set two to three years the prior record was a significant aggravatingfactor taking the sentence outside what would otherwise be a normal range. None of this is to say that reformatory sentences are notappropriate. They may well be depending upon the circumstances. However, methamphetamine is a

Schedule I substance and as ageneral rule penitentiary sentences are appropriate. Turning then to the specific facts of this matter, a total of 69 grams of methamphetamine were found in the premises Mr. Brown had justleft and with which he had an obvious connection. A large quantity of cash was found. Mr. Brown is 34 years of age, has a prior history of involvement in the criminal justice system. He has two prior convictions forpossession. Mr. Brown acknowledges an affiliation with the “H-Crew”, a London based affiliation of the Hell’s Angels. At the time ofhis arrest items of the Hell’s Angels logo were seized.

Mr. Brown explains them by stating he merely has an interest of items of thatnature and that prior to his arrest he had been gradually cutting his ties with that organization. The Crown has argued that hisexplanation regarding the “H-Club” should be rejected and that his membership in that organization is an aggravating factor on sentence. On the material before me the involvement with the “H-Club” is nothing more than a suspicion, at least as it relates to this particularoffence and I cannot factor suspicion into the determination of an appropriate sentence.

Were there evidence of involvement in the “H-Club” by Mr. Brown at the time of the occurrence and in connection with the occurrence of this offence I agree it would be a significantaggravating factor. The presentence report addresses the substance abuse issues Mr. Brown has. His use of illegal drugs began in his early teens andcontinued throughout his life. At various times he has used cocaine, oxycodone, acid and magic mushrooms. Currently he is on themethadone program. In spite of the substance abuse issue it appears Mr.

Brown has been able to find suitable employment throughouthis adult life such that he is able to provide for himself and his family. His involvement in drug sales, however, was of a commercialnature. Since his arrest, Mr. Brown has become a member of the Carpenters’ Union and is employed full-time. He was accepted into a formalapprenticeship program. He has put himself on a path to being a productive member of society. While some might suggest that that isnothing more than window dressing Mr. Brown has made some note-worthy steps at rehabilitation. All of that, however, is but one sideof the equation.

On the other side of the equation in assessing a sentence are the nature of the offence and the circumstances of theoffence.

Methamphetamine is a

Schedule I substance under the Controlled Drugs and Substances Act . The harshest of penalties available under that Act are reserved for

Schedule I substances. While one cannot ignore the steps of rehabilitation the principles of denunciation and deterrence remain paramount. Methamphetamine is a highly addictive drug in the same category as cocaine and heroin. An addiction can arise easily and once in place is extremely difficult to overcome. Prolonged use of the drug leads to significant physical and mental health problems. The use of methamphetamine in this community has grown over the years and its abuse continues to be prevalent as anyone sitting in this court on a regular basis can attest.

It is a drug that ruins lives, often young lives, it can and has resulted in the death of users. There are far too many cases in this community of pregnant addicts forgoing proper medical care and giving birth to babies who are themselves addicts. The addictive habit is often funded by those who resort to crime with the result that the effects of the addiction reach deeply into the homes of countless people throughout the community. Those effects of addiction should come as no surprise to anyone and those who engage in the trafficking of drugs must bear responsibility for the harm that they cause.

The deterrent effect of any sentence at least as it relates to general deterrence is highly suspect, but denunciation is critical if for no other reason than those who live a life respecting the law can be assured that those who do not will on appropriate circumstances be removed from the community for the protection of the community. On the facts before me I believe this offence falls within the low-level range where the appropriate range of sentence is between two and three years.

Balancing the mitigating factors of a guilty plea, the presence of remorse and the efforts of rehabilitation against the aggravating circumstances of the prior record, the commercial nature, the prevalence within this community and the effect on the community I believe that a sentence of 30 months is appropriate.

That will be the sentence imposed then on count one. (CORRIGENDUM: THE FOLLOWING WORDS ARE DELETED AND DO NOT FORM PART OF THESE REASONS.) With respect to the other two counts there will be periods of 90 days, but that is to be concurrent to any other time so the total sentence remains at one of 30 months .) As well, there will be a lifetime prohibition under

section 109 of the Criminal Code of Canada , which prohibits the possession of any firearms, ammunition, restricted weapons and prohibited weapons and devices. A DNA order will be made and with respect to the matter of forfeiture, there was an application for forfeiture. Any issue respect to that, Mr. Stoesser? MR. STOESSER: No, sir. THE COURT: There will be an order of forfeiture with respect to those matters seized by the Crown at the time of the arrest. ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Examination Cross- Re- WITNESSES : in-Chief ___ examination examination -- -- -- E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE --

ENTERED ON PAGE REASONS FOR SENTENCE 01 Transcript Ordered : January 30, 2014 Transcript Completed : February 25, 2014 Ordering Party Notified : February 25, 2014 FORM 2 CERTIFICATE OF TRANSCRIPT Evidence Act , Subsection 5(2) I, Kimberly Terryberry, certify that this document is a true and accurate transcript of the recording R. v. DYLAN HOLLIS BROWN in the Ontario Court of Justice held at 700 Christina Street, North, Sarnia, Ontario taken from Recording No. CD: 1711-CrtRm301- 20140130-082115-6 , which has been certified in Form 1.

February 25, 2014 ”ORIGINAL SIGNATURE” Date Kimberly Terryberry *This certification does not apply to the ruling which was judicially edited.