R. v. Ambury Date:, 2014 BCPC 344

Citation: R. v. Ambury Date: 20141029 2014 BCPC 0344 File No: 79481-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. KYLE ATTICUS AMBURY REASONS FOR SENTENCE OF THE HONOURABLE JUDGE B.G. HOY Counsel for the Crown: R. Randhawa Counsel for the Accused: D. Silverman Place of Hearing: Abbotsford , B.C. Date of Hearing: June 9, 2014 Date of Judgment: October 29, 2014

[ 1 ] THE COURT : Kyle Ambury has pled guilty to a charge of possession for the purposes of trafficking in cocaine and heroin, which offence occurred on July 15th, 2013. [ 2 ] His participation in the drug trade is characterized as a dial-a-dope situation. Messages were forwarded to him by phone or text. He would then leave his residence and walk to the location of the sale, which was mostly around the mall area, although he would sell it anywhere in Abbotsford. He explained to the officer his daily sales amounted to a thousand dollars of crack and heroin for which he was paid a hundred dollars per day.

When he ran out of products he called a number to replenish his supply. [ 3 ] This investigation came as a result of the defendant's girlfriend phoning the police due to her discovery of drugs and her suspicions of his participation in the drug trade. [ 4 ] The officers arrested him at his residence. Found in his pockets were a number of packets of crack cocaine with a total weight of 6.5 grams. Also recovered was heroin packaged for sale with a weight of one gram.

Various bills totalling $110 were also seized. [ 5 ] In his statement to the police, his explanation for trafficking was addiction to Oxycontin and heroin and a subsequent drug debt repayment. Furthermore, he had lost his employment. There is evidence he had last used this two days prior to the offence date. THE DEFENDANT: [ 6 ] At the time of the offence, Ambury was 20 years old. He was at that point involved in a relationship with Ms. Neal (phonetic), and had been for the preceding five years. They have one child currently aged 31 months. It was Ms. Neal's call to the police that resulted in his arrest.

She had also called the defendant's mother to be present on the arrival of the police. [ 7 ] Since this offence the parties have separated. The defendant is a devoted father. They have a co-parenting routine where the child is in his care from Tuesday to Thursday and every alternating weekend. [ 8 ] He has a grade 12 education.

Currently he is unemployed as he wanted to await the outcome of his sentence. [ 9 ] His history establishes a fairly regular routine of labour types of employment, which was punctuated by other circumstances which interfered with that pattern, which included the loss of his driver's licence, the care of his son while the mother was incarcerated for four months, and being laid off due to lack of work for a period of time. [ 10 ] Examining the particulars of why he became involved in the drug trade, he explains that prior to the offence he only used marihuana.

In the spring of 2013 he was introduced to prescription painkillers, which quickly evolved to Oxycontin and then heroin. [ 11 ] He accumulated a drug debt of $500 which exceeded his ability to pay. Under threats of harm to himself or his family, he participated in the drug trade. He had the drugs in question for five days and the cell phone for one day prior to his arrest. By this point in time he had been abusing drugs for two months. [ 12 ] The defendant is now 21 years old. His socio-economic background is an upper middle class home. He has memories of a happy childhood and supportive family.

It is a support that he continues to enjoy. Other than a period of a few months during 2013 and prior to his arrest, he has otherwise resided in the family home. He has two siblings aged 23 and 18. As between the siblings, they share a common mother, but the defendant has a different biological father. The only point in making this observation is the defendant's father is a status First Nations person. He is deceased. The defendant has not claimed that status for himself, nor has his Aboriginal background or that part of his extended family been part of his life.

I will discuss this aspect later from the perspective of Gladue considerations. [ 13 ] Throughout his life the strength of family support remains unwavering. His mother is rigorous in her opposition to drugs. When he was released from custody she made arrangements for him to reside with an uncle on a farm in a rural part of Alberta. He states that he went cold turkey from drugs. [ 14 ] It is observed that the PSR expresses some reservations about his maintaining sobriety. Some pills were found in his bedroom as recently as August 2014.

However, the defence notes that they were not opiates and had nothing to do with illegal drugs. [ 15 ] From reference letters filed on his behalf, his family is firmly of the view that he has control over his drug use. As for counselling services, the PSR speaks of contact being made with such service, but there was no follow-through. However, contrary to this statement, he was taken to counselling service by his mother and there are ongoing efforts to arrange counselling.

The PSR confirms he attends weekly meetings of narcotics anonymous with his new girlfriend or his mother. [ 16 ] Upon review of the various reference letters written primarily by family members and some friends, the theme is a common one. It is one of dismay and disappointment upon discovery of his addiction. It was a dramatic departure from the person they had known from the past, yet they also speak of his promising recovery. From his large extended family everyone is fully prepared to provide whatever support that may be necessary to ensure his recovery remains intact.

It is evident from the support this young man has returned to his former self, an easy-going, kind-hearted person who is empathetic to others and fully appreciates his strong family bonds. They note as well his strong work ethic and solid moral compass, which will give him further strength in recovery. [ 17 ] His personal expressions of remorse identifies not only his own regret in this crime, but as well the carnage of drugs upon others and society. Through his son he is keen to ensure a positive lifestyle for him, such as the one that was given to him through his family.

It is with this in mind, his acceptance of responsibility for his criminal conduct seems genuinely held. He understands that trafficking was not only destructive to himself and those that love him, but also as well to others who are enveloped in the drug scene. DISCUSSION AND CONCLUSIONS:

[ 18 ] In reviewing the authorities provided by counsel, each are distinguishable. R. v. Roach May, 29th 2014, BCPC Abbotsford number 79477-1, is a case dealing with a young offender aged 18. She had in her possession a similar amount of drugs as the defendant. She was an addict and sold drugs in order to feed her own addiction. Steps had been taken towards rehabilitation but they were not clearly identified. She asserted she was no longer using drugs and had employment in Alberta.

One significant point of distinction to the case at bar is she had a youth record of assaulting a police officer and was on probation at the time of the new offence which included a term that she not possess drugs. Her sentence was six months. [ 19 ] R. v. Voss 2014 BCPC 43 , dealt with an Aboriginal offender. He had no record. A substantial amount of drugs and cash were recovered from his residence in a small northern community of Watson Lake. In characterizing his role in the drug trade, he possessed a comparatively large amount of cocaine valued at over $6,000.

The inference is that he was more than a street-level dealer. However, his participation was not viewed as a profit-driven commercial enterprise, but rather that of an addicted offender feeding his own habit. Examining his family life, it was chaotic and unstable; violence, drugs and alcohol prevailed. From the Gladue report it is very evident Voss experienced systemic and generational adverse effects through his Aboriginal experience.

A suspended sentence was imposed. [ 20 ] While I am mindful of Voss, for it contains a useful discussion of many of the other sentencing considerations in the Code, it is a case that stands in distinction from the defendant. Ambury is extremely fortunate to have grown up in a family setting that preserved his emotional and spiritual health. He was not subjected to poverty, violence, abuse or neglect of addicted parents.

The generational burden of family disintegration and dysfunction experienced by many Aboriginals and as personified in Voss, is simply not part of the chain of life's events for Ambury. [ 21 ] R. v. Ferguson , 2014 BCCA 347 , is a unique case as it seems to open the door to suspended sentences for traffickers. The defendant was a street dealer who sold $20 of crack to an undercover police officer. He had a lengthy criminal record that included prior drug trafficking offences, and he was on bail at the time of offending for robbery.

The sentence originally imposed was a conditional sentence of six months plus probation. It was an illegal sentence given the amendments to the Code. The appeal was allowed, without opposition by the defence, with a suspended sentence imposed. Part of the consideration for the sentence was to avoid an interruption of his rehabilitative efforts. This case stands in stark distinction from other very recent Court of Appeal decisions. [ 22 ] We are otherwise reminded that dial-a-dope scenarios will, in the absence of exceptional circumstances, attract jail.

The range is from six to nine months, depending on the circumstances. Denunciation and deterrence are highlighted as sentencing objectives. The utility of a dial-a-dope scheme in our modern technological age allows for easy accessibility and rapid dissemination of drugs. Its destructive use upon society and the individual is well documented. (See R. v. Cisneros , 2014 BCCA 154 , and R. v. Gill , 2013 BCCA 320 ) [ 23 ] Sentencing assessments must also be done in the context of s. 718, 718.1, and 718.2 of the Code.

As is well known, determining the appropriate sentence is a highly individualized process. [ 24 ] There are exceptional circumstances with respect to Ambury's degree of culpability. He was a street dealer who was not involved in a profit motive for commercial purposes, but rather was feeding his own addiction through the sale of drugs. His participation in this type of criminal activity was for a relatively brief period of time and came about as a result of a drug debt. Other aspects in mitigation are his guilty plea, lack of criminal record and compliance with his bail terms.

Furthermore, he has demonstrated a deep sense of understanding of the harm he has done to others by his participation in the drug trade, and accepts unconditionally his responsibility for his conduct. [ 25 ] One very important element that is carefully weighed is his rehabilitation. He appreciates that he bears the responsibility for a drug-free lifestyle. With the help of his family, he has undertaken positive steps to control his addiction. The best hope to avoid recidivism is rehabilitation which will ultimately benefit not only the defendant but also society as well.

He is a young man who made a mistake in a lifestyle that was otherwise positive. [ 26 ] By the same token, a dial-a-dope scheme requires denunciation and deterrence. Its pernicious path is plainly evident. The sentencing principles are also weighed within the context of the other provisions of the Code.

In this process I am further mindful of s. 718.1 which states "any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender", and s. 718.2(b), where "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". [ 27 ] Sir, if you would just stand, please. [ 28 ] As I balance the various sentencing considerations, the particulars of the offence and the offender, and upon reflection of the various authorities, the sentence I impose is 90 days to be served intermittently. [ 29 ] For the purposes of the intermittent sentence, you shall be on probation.

There will be other terms in that probation order dealing with rehabilitation. The duration of the probationary term, which encompasses this intermittent sentence, will be for 18 months. [ 30 ] The terms are these: Keep the peace, be of good behaviour. Report in person to a probation officer forthwith, thereafter as directed.

You are to provide to your probation officer your address and not to change it without his or her prior approval. [ 31 ] 90 days to be served intermittently in the following manner; namely, the first day of the sentence to be served today, and thereafter on Friday, October 31st, at 6:00 p.m. and ending on Sunday November 2nd at 6:00 p.m., and every consecutive weekend until the completion of this intermittent sentence. [ 32 ] You must attend and successfully complete such counselling or program as directed by your probation officer and, without limiting the generality of this condition, such counselling or program may, in the discretion of your probation officer, include substance abuse and drug and alcohol residential treatment programs. [ 33 ] You shall not possess or consume any alcohol or non-prescription drugs.

[ 34 ] Pursuant to s. 487.051(

a) you are to provide a sample of your DNA. [ 35 ] By s. 109 there is a ten-year weapons prohibition. [ 36 ] I further make an order of forfeiture of the drugs, cash and any other paraphernalia. [ 37 ] Anything else, counsel? [ 38 ] MR. SILVERMAN: Since the first day will be served today, the reporting -- first reporting day, can I suggest that he be given 24 hours or 48 hours from today's date? [ 39 ] THE COURT: Yes, that's fine.

So with regard to that, report in person to a probation officer within 24 hours of your release, thereafter as directed. [ 40 ] THE CLERK: And the location that he is to serve this is at... [ 41 ] THE COURT: That will be for classification and that is why he is being sent today. [ 42 ] And surcharge? [ 43 ] MR. SILVERMAN: Oh, could he have, I'm going to suggest -- let's do six months, I think it's, what is it, $150 surcharge? I think it is, with the single count, is that correct? $150. [ 44 ] MR. RANDHAWA: [indiscernible] [ 45 ] MR.

SILVERMAN: Six months. [ 46 ] THE COURT: And, let me think, there was the -- no, I think that's everything with respect to sentencing of this young man. [ 47 ] MR. RANDHAWA: Thank you, Your Honour. Crown directs a stay of proceedings on Count 2. B.G. HOY Provincial Court Judge