R. v. Roach Date:, 2014 BCPC 225

Citation: R. v. Roach Date: 20140529 2014 BCPC 0225 File No: 79477-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KAYLA YOLANDA VICTORIA ROACH REASONS FOR SENTENCE OF THE HONOURABLE JUDGE W.G. MacDONALD Counsel for the Crown: A. Randhawa Counsel for the Accused: C. Maddock, Q.C. Place of Hearing: Abbotsford , B.C. Date of Hearing: November 13, 2013 Date of Sentence: May 29, 2014

[1] THE COURT: The young lady before the court this morning is just 19 years of age. She was barely 18 at the time of theoffence; 18 and three months. She has pled guilty to a charge of trafficking in cocaine. She was involved in what is known as a dial-a-dope operation. That is a phrase that is commonly used to describe drug trafficking whereby people seeking drugs merely access atelephone number, tell the person on the other end what they want and then it is delivered to them or they meet somewhere a personusually in a vehicle and obtain the drugs. [2] In this particular case, Ms.

Roach was phoned on the dial-a-dope line and she in fact attended and sold $40 worth of cocaine toa police officer. She had in her possession a cell phone which continued to ring, people asking for drugs. She had a number of differentdrugs on her person or in her possession. She had 18 packages of crack cocaine. She had eight packages of powdered cocaine.

She had22 packages of heroin, $195 in Canadian cash, $20 in U.S. cash, and obviously was a person deeply involved at that moment in time, atleast in this dial-a-dope operation. [3] At the time of the incident she was on probation from an offence of assaulting a peace officer, conviction as a youth from the28th of August 2012 and she was right near the end of that probation order but was on terms to keep the peace and be of good behaviourand not be in possession of drugs and that sort of thing at the time of the incident.

That is obviously an aggravating factor. [4] The Crown is seeking a sentence of six to nine months in jail. The Crown believes that is the appropriate range of sentence fora case of this nature and suggests that it would be an extraordinary circumstance to vary from that. [5] Defence counsel, Mr.

Maddock, does not particularly disagree that that is the appropriate range or the normal range in theabsence of exceptional circumstances, but the defence submits that there are exceptional circumstances in this case and for that reasonthe court should impose a jail sentence but perhaps lower than the six to nine month range, perhaps in the three to four month range. [6] The accused in this particular case has a history in which she has been suicidal at times. She suffered at times, at least fromlow self-esteem.

She had a maternal grandmother pass away just a month before this incident and she was apparently very close to thatperson and that has had quite an effect on her life. Unfortunately for her what it did not do was get her to stop doing what she was doingand being involved in the dial-a-dope operation. As she said herself in her Presentence Report in the middle of page 8 that hergrandmother would have been disappointed in her if she knew what she had been doing after July the 4th using and selling drugs, and shejoked that her grandmother would have severely beaten her.

So she continued to use drugs as she was an addict at the time. She claimsto have a $140 a day crystal meth addiction at the time of these offences and obviously was trying to use the money that she made fromselling drugs to buy drugs. That, of course, is not an unusual situation for people who are involved in this sort of an operation. [7] I am also told that she may well be Métis on her mother's side. I heard no further details on that.

The Crown did not opposethat submission, so I will accept the fact that she may well be Métis and I will consider that in my sentencing. [8] The law provided to the court with respect to sentencing today is quite helpful in a number of areas. It certainly talks about therange. I am satisfied that the range in British Columbia, the normal range, at least, of sentence for a person involved in dial-a-dopewould be in the six to nine month range for jail sentences.

That since an amendment to the law conditional sentences are no longerpermitted with respect to this offence and therefore the court would normally be imposing a jail sentence. [9] The Crown provided the court with the case of R. v. Hoanh Ngoc Le 2002 BCCA 98. That is a case from our Court of Appealfrom February of 2002. And in that case the court was dealing with an appeal made by the accused appealing his sentence of six monthsimprisonment. The accused felt he should have received a conditional sentence and of course a conditional sentence was an availablesentencing option at that time.

The accused had no previous criminal record. He was 38 years of age, married, father of two and the solesupport of his family. All of those would be mitigating factors. He was addicted to cocaine at the time of the offence. And some courtshave decided that that also may be a mitigating factor and that it is somewhat less serious than somebody who is into it strictly foreconomic gain. [10] The Le decision is helpful in that it includes in it the well-known case of R. v. Franklin from the 1st of May 2001, which was adecision of Mr.

Justice Henderson, cited as 2001 BCSC 706 , 2001 B.C.S.C. 706, and that decision talks about dial-a-dopeoperations in general and how they affect society, particularly in paragraph 20 from that decision on page 4 of the decision I am justgoing to read in part and that is: Purchasers, and here I think of adolescents, who might feel intimidated at the thought of seeking out a drug dealer in the recesses of theMain and Hastings area may nevertheless, in the relative comfort and safety of suburban locations, easily purchase cocaine and heroin aslong as Dial-A-Dope operators are willing to oblige them. [11] In that particular case, the court decided that the sentencing judge was correct in imposing the six month sentence and inrefusing the conditional sentence and the appeal was dismissed. [12] Crown also relies on R. v.

Pierre Alexandro Cisneros. That is cited as 2014 B.C. Court of Appeal 154. That is a very recentdecision of the Court of Appeal. Again the accused was involved in a dial-a-dope operation. He was working what he called themidnight shift. Sounds like a regular job. In any event, he was 27 years of age, had no previous criminal history, seemed to be doingquite well in the world after this incident. He had a grade 12 education, as well as a two-year automotive technician course, and at thetime of trial he was in his third year of a carpentry apprentice program through BCIT. He was not a drug user.

He was in the matterpurely for economic gain. He says that he cut his ties to the drug trade upon his arrest and the judge accepted that.

The sentencingjudge imposed a fine in this case, rather than jail, and commented about the sentencing principles, in particular whether or not generaldeterrence would be an appropriate consideration in this particular case, and she expressed doubt that it would have much effect. [13] The Court of Appeal was relatively stern in suggesting that the judge's personal opinion has to be tempered by the law and thelaw with respect to general deterrence is that general deterrence is recognized as a primary objective in imposing sentence for dial-a-dopeoperations and that as Madam Justice Ryan stated in R. and Johnson, which is quoted in paragraph 11 of the same decision:

We must assume that deterrent sentences have some effect. It is futile to ask whether a particular sentence will deter others. [ 14 ] And further down couple of lines later: This will deter some potential offenders, it will not deter others. [ 15 ] And the Court of Appeal goes on to say: An individual judge's opinion on the efficacy of general deterrence cannot be allowed to override established principles of sentencing. They continue: The case before us is a straightforward case in which the offender was involved in a busy dial-a-dope operation.

While he had no criminal record, this was not an isolated event, as he conceded in his sentencing submissions. There were no extraordinary circumstances that would take this case out of the ordinary sentencing range.

So the fine was disallowed and a sentence of six months imprisonment was substituted for that fine. [ 16 ] I just want to quote one other paragraph of that Cisneros decision and that is paragraph 10 which says: Denunciation and deterrence are particularly important sentencing objectives in dial-a-dope cases. [ 17 ] Applying the principles in those cases and the sentencing principles contained in the Criminal Code , I am satisfied that in this particular case, a dial-a-dope kind of a case, that the principle of general denunciation takes precedence over individual rehabilitation.

The accused in the case at bar has certainly made some steps towards her rehabilitation. They were not instant. She continued to use drugs for a considerable period of time following this incident, but in more recent months has moved to Alberta, has obtained a job, says that she is not using drugs. I do not necessarily accept that wholeheartedly because she has said similar things in the past which have turned out not to be true. It is not unusual for people who use drugs to deny drug use. I am not suggesting she is using drugs. I am just saying it might be an error to just accept it.

The probation officer in the Presentence Report before the court comments that she is living in a small town in Alberta in which drugs are certainly available if she wanted them, and the implication there is that somebody could be using drugs and say they are not using them. Like I say, I really do not put any weight to that but I am satisfied the accused has made some reasonable efforts to rehabilitate herself. [ 18 ] In determining the appropriate sentence I am satisfied totally that the range of sentence is six to nine months imprisonment.

There is nothing in this case, in my view, which would take the case out of that range. If I allow for the mitigating factors, namely, a guilty plea, some efforts at rehabilitation, the extreme youth of this young lady, she was just over 18 at the time of the offence, and a relatively small criminal record, in addition to the fact that she was an addict, I believe that may well take her to the lower end of the range of sentencing.

It is probably not the kind of case in which she should receive the higher end of sentencing. [ 19 ] I am also satisfied that following a period of jail she should receive additional counselling and supervision in the community and there will be a period of probation following her term of incarceration. That term of probation will be for one year. It will be a term of probation that she keep the peace and be of good behaviour.

That she report to a probation officer, I am going to say here in Abbotsford, at 2865 Cruickshank Street within 72 hours of her release from custody and thereafter report as and when directed. [ 20 ] She is to reside at a residence approved of in writing by the probation officer and not change that address without the prior approval of the probation officer or the court. [ 21 ] There will be a condition that she seek and maintain employment, that she abstain absolutely from the possession and use of narcotics, in particular all drugs referred to in the schedules of the Controlled Drugs and Substances Act , which are all of the illegal drugs. [ 22 ] You are to attend and actively participate in any assessment or counselling as directed by the assigned probation officer, including in-patient treatment if deemed necessary. [ 23 ] You are to have no contact, directly or indirectly, with known drug users and drug dealers and anyone else specified by the assigned probation officer. [ 24 ] With respect to the term of incarceration, stand up, please, I am going to sentence you to six months' imprisonment.

For the reasons I have given earlier, I am satisfied that you qualify for the lower end of that range of sentence. The one-year probation that I have imposed will follow your term of incarceration. [ 25 ] With respect to a victim fine surcharge because of the age of this offence and the law at the time I will waive the victim fine surcharge in this case. [ 26 ] The Crown is seeking a firearm ban under the provisions of the Criminal Code , and I will impose a ban which will be as follows. [ 27 ] MR. RANDHAWA:

Section 109, ten years, Your Honour. [ 28 ] MR. MADDOCK: For ten, I believe, Your Honour. [ 29 ] THE COURT: You are prohibited from possessing any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance for a period of ten years. [ 30 ] I am also going to make an order that you provide a sample of bodily substance suitable for DNA analysis.

[ 31 ] There will be an order that all of the exhibits referred to here, including all of the drugs, the cash, cell phone, I believe that was everything, are forfeited to the Crown. W.G. MACDONALD Provincial Court Judge