R. v. Malenovic Date:, 2017 BCPC 274

Citation: R. v. Malenovic Date: 20170905 2017 BCPC 274 File No: 94556-1 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. NIKOLAS MALENOVIC ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE McQUILLAN Counsel for the Crown: P. Bachra Counsel for the Defendant: N. Cobb Place of Hearing: Port Coquilam , B.C. Date of Hearing: August 29, 2017 Date of Judgment: September 5, 2017

[ 1 ] On March 30, 2017, following a trial, Nikolas Christopher Malenovic was convicted of three counts of possession for the purposes of trafficking on July 30, 2015, contrary to s. 5(2) of the Controlled Drugs and Substances Act . The three counts relate to possession of fentanyl and heroin, heroin and cocaine, respectively. [ 2 ] The Crown is seeking a 26 month jail sentence. The defence seeks a suspended sentence with a three year period of probation. Facts [ 3 ] On July 30, 2015, Mr. Malenovic was arrested in a parking lot in Maple Ridge.

The arrest occurred following a surveillance operation in which the vehicle he was driving was observed to be the locus of four apparent drug transactions where individuals had approached the vehicle and walked away after purchasing drugs. When the police moved in and arrested Mr. Malenovic and the female co-accused in the vehicle, the female was found to have a baggie containing a quantity of street drugs.

Upon testing, it was determined that the baggie contained the following: • 18 fake oxycodone pills containing heroin and fentanyl; • 4 baggies of heroin each containing 0.12 grams of heroin • 11 baggies of powdered cocaine, with each baggie containing 0.28 grams of cocaine; • 15 packages of rock crack cocaine, each weighing 0.40 grams. [ 4 ] The vehicle also contained three cell phones and a wallet belonging to Mr. Malenovic which contained $1025 in cash, largely in small bills. [ 5 ] At trial, Mr.

Malenovic was determined to have constructive possession of the drugs and on that basis was found guilty of all three counts of possession for the purposes of trafficking. [ 6 ] This was clearly a dial-a-dope operation that Mr. Malenovic was a participant in. The Offender’s Circumstances [ 7 ] Mr. Malenovic is now 22 years old, having been 20 at the date of these offences. He has no prior criminal record. [ 8 ] Several letters of support from friends and family were provided for the purposes of sentencing. Those letters, in conjunction with submissions of defence counsel, indicate that Mr.

Malenovic has a close and supportive family. He is described as caring, dedicated, hardworking and loving. He is also described as going from a sweet, innocent young man to a struggling individual who is addicted to drugs after having fallen in with the wrong crowd. His counsel advises that he developed an addiction to prescribed Percocet as a result of an injury. That in turn led to an addiction to opioids and street drugs. These offences arose from him trafficking to support his drug addiction.

I am advised that he has taken steps to address his addiction issues and is presently on the methadone program, taking 90 mg per day, which is monitored. After some false starts in the past year he has been seeing a drug and alcohol counsellor for the past two months. He resides with his mother. Letters of support indicate that he has been employed for the past several months as a bricklayer with a construction company and, for the past two months has been working for a landscaping business.

Both employers describe him as being motivated and hard working. [ 9 ] Support letters also emphasize the remorse expressed by Mr. Malenovic to them for this offence. Although he did not personally address the court when invited to he did express his remorse through his counsel, which I accept as genuine. [ 10 ] The Crown relies on a report from the Coroner’s Service of BC titled, “Illicit Drug Overdose Deaths in BC, January 1, 2007 - June 30, 2017” to illustrate the toll that the use of fentanyl in BC is having.

That report confirms that there has been a spike in illicit drug overdose deaths in BC beginning in 2014 which continues to soar each year. This escalation in overdose deaths appears to be almost entirely due to fentanyl as the rate of non-fentanyl deaths has remained relatively stable. [ 11 ] Fentanyl is described as being 100 times more potent than morphine and 50 times more potent than heroin. Mixing fentanyl with other drugs is particularly dangerous as the end user may either be unaware that he or she is ingesting fentanyl, or will be unaware of the quantity of fentanyl in the drug.

Given the extremely high potency of fentanyl, slight variations or inconsistencies in the concentrations can easily result in overdose and death. In the present case the Crown says that the fact that fentanyl is effectively disguised in fake oxycodone tablets makes this even more insidious as the user may assume that the pill is less potent than it actually is. The Law [ 12 ]

Section 718 of the Criminal Code sets out the he principles that I must be guided by in sentencing. Purpose and Principles of Sentencing 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce unlawful conduct; (

b) to deter the offender and other persons from committing offences;

(

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender… (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Probation 731.

(1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (

a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (

b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.… [ 13 ] The Crown relies on two cases in support of its position. Firstly, it relies on the case of R. v. Smith , 2017 BCCA 112 . In that case the BC Court of Appeal considered a Crown appeal of a six month sentence for a 59 year old first time offender.

On the appeal the court was asked to consider an increased range of sentences for trafficking in fentanyl given the dangerousness of fentanyl and the havoc it wreaks on society. The court agreed and determined that an appropriate range of sentences for trafficking in fentanyl is from 18 to 36 months, and possibly higher. The majority of the court considered the state of knowledge in the community of the risks and impact of fentanyl as being a relevant consideration in determining whether to apply this new, increased range. The offence date in that case occurred in January 2015. At paragraph 61, Mr.

Justice Harris for the majority stated: [61] Since January 2015, there have been a number of changes which would render the sentence imposed on Mr. Smith demonstrably unfit had the offence occurred later, particularly if it had occurred late in 2016. [ 14 ] In the result, the majority found that this new increased range should not apply to Mr. Smith given the date of his offence in January 2015 and it upheld the trial court decision of six months as being a fit sentence. [ 15 ] In Mr. Malenovic’s case the offence occurred in July 2015, six months after the offence in Smith .

As such, the Crown argues, the Smith range should apply to this case given that it occurred six months later when there was greater knowledge of the perils of fentanyl. With respect however, I do not agree that six months brings this offence into the Smith range.

At paragraph 59 Justice Harris stated: [59] I take it that even in August 2015, while there was a clear association between increasing availability of illicit fentanyl and increasing numbers of accidental overdoses, there remained some uncertainty about the role of fentanyl in causing or contributing to accidental drug overdose deaths. [ 16 ] And further at paragraph 64: [64] …..as a result of the foregoing it is most doubtful in my view, that the statement that the “role of fentanyl in overall illicit drug overdose deaths cannot be determined at this time (August 2015), would accurately reflect the state of opinion today.

The role of fentanyl in overall illicit drug overdose deaths seems perfectly clear. [ 17 ] Those comments satisfy me that the range now established by the court of appeal in Smith would not apply to an offence date of July 2015 and as such I am not bound by it. [ 18 ] That takes me to the second case relied on by the Crown, being R. v. Voong , 2015 BCCA 285 . In that case the court considered four Crown appeals of suspended sentences granted for dial-a-dope drug dealers.

Although the court upheld three of the suspended sentences, in doing so it stated that there must be exceptional circumstances to depart from a range of which otherwise begins at six months for a first time offender. At paragraphs 44 and 45:

[44] What then is the range of sentence for dial-a-dope traffickers? We know the statutory range is from a suspended sentence to life imprisonment. We also know, from an abundance of cases decided by this Court, that the normal range of sentence for a first offence dial-a-dope drug trafficker is between six to nine months incarceration, and upwards to eighteen months in some cases, absent exceptional circumstances.

A brief review of some of the cases will demonstrate this range. [45] The exceptional circumstances must engage principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. And further at paragraph 59: [59] In

summary, absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances. Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught.

This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence. There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non-custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available.

Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 19 ] The question is whether such exceptional circumstances exist in the present case. [ 20 ] Mr. Malenovic argues that this is not a fentanyl case and that he should not be sentenced as though it is. His argument in that regard is that although the charges include fentanyl, and in fact he was found guilty of being in possession of fentanyl for the purpose of trafficking, there is nothing in the evidence to indicate what was the relative quantity of fentanyl contained in the fake oxycodone pills. Mr.

Malenovic says that the Crown could have easily undertaken testing to obtain that information but did not do so. As such, we have no knowledge of whether there was only a trace amount of fentanyl in the pills or a significant amount. [ 21 ] The difficulty with that argument is that Mr. Malenovic has already been found guilty of PPT with respect to fentanyl and I find that it is too late to raise an argument that the Crown has failed to prove the precise quantity of fentanyl mixed into the pills. While it may have been open to Mr.

Malenovic to make such an argument at the trial itself, in my view his conviction in relation to fentanyl has already happened and cannot be reconsidered at this stage based on uncertainty as to the quantity or concentration of the fentanyl. [ 22 ] In any event, I have previously indicated that due to the timing of this offence I am not bound by the increased sentencing range for fentanyl cases set out in Smith . [ 23 ] The defence relies on a number of cases, in addition to Voong , to support his position that a suspended sentence is appropriate. [ 24 ] In R. v.

MacDonald , 2015 BCSC 400 , the accused was found guilty of trafficking in cocaine. The accused had assisted an undercover police officer purchase cocaine in a nightclub. The incident was out of character for the accused, was not done for monetary gain but rather to help out a stranger. The accused was young, of prior good character and was truly remorseful. He was given a suspended sentence and one year of probation.

However, I find that the circumstances of this offence were quite different from those of the present case as it did not involve a dial-a-dope operation. [ 25 ] The next case relied on by the defence is R. v. Oates , 2015 BCSC 584 . In that case, the 31 year old accused pled guilty to selling crack cocaine to an undercover officer in a dial-a-dope operation. His motivation for committing the offence was monetary as he was experiencing financial distress.

The court found that with the mitigating factors of his guilty plea, his remorse, his positive pre- sentence report, the positive letters of support and the rehabilitation he was undergoing justified a suspended sentence along with a three years of probation. I note that his case was pre- Voong . [ 26 ] In R. v. Owens , 2014 BCSC 32 , an offender received a suspended sentence and two years of probation following a guilty plea to a charge of possession of marijuana and cocaine for the purpose of trafficking out of his residence. The accused was 21 years old and had no prior record.

He began selling drugs when he became financially strapped. He had been employed since the offence and was contributing to his community by organizing a fundraiser for a friend with cancer. This case was also pre- Voong . [ 27 ] In R. v. Wong , 2016 BCSC 1568 , following a guilty plea to trafficking in cocaine, the 18 year old accused was sentenced to a suspended sentence with three years of probation. The accused was a lower level participant in a dial-a-dope operation. He had gone astray in high school, dropped out and began selling drugs.

Since being charged, the accused had completely turned his life around, begun contributing to his family and community life, returned to school and found full time employment. The court found that his circumstances fit squarely into the “exceptional circumstances” described in Voong . [ 28 ] In the present case the mitigating factors are Mr. Malenovic’s lack of a criminal record and his young age. I also accept his expression of remorse as being mitigating. [ 29 ] The aggravating factors are the nature of the offence, being a dial-a-dope operation which shows some level of sophistication.

I also find the fact that fentanyl was involved in this offence to be somewhat aggravating, even though I as earlier stated, I am not bound by the fentanyl sentencing guidelines in Smith . There was no suggestion that Mr. Malenovic was unaware that the drugs contained fentanyl, and in any event a seller of illegal drugs must be assumed to recognize an inherent risk ……. that the composition of the drugs may be unknown: R. v. Herrell , 2014 BCCA 114 at para 19 .

[ 30 ] While Mr. Malenovic has now sought out treatment for his addiction, the evidence before me is that that has happened somewhat recently, with the letter from his counsellor indicating that he has been seeing him since only June 19, 2017, almost two years after the date of the offence. While I am pleased to see that he has taken this step and that he has family, friends and employers who are supportive of him, I am not satisfied that these bring his circumstances into the “exceptional circumstances” described in Voong .

All but one of the cases referred to by the defence in support of a suspended sentence involved guilty pleas. In that one other case ( R. v. MacDonald ) the facts were considerably more benign and did not involve a dial-a-dope operation. None of the cases referred to by the defence involved fentanyl. [ 31 ] The defence also raises an issue of parity in so far as Mr. Malenovic’s co-accused was given a suspended sentence for essentially the same offence. I have read the reasons for sentence of the co-accused and what distinguishes that case from that of Mr.

Malenovic is the early guilty plea and the Gladue factors arising from her aboriginal status, both of which are absent for Mr. Malenovic. She also came from a difficult upbringing and had turned herself around since the offence such that she was now attending a degree program in art and obtaining straight A marks. The court also had the benefit of an extensive pre-sentence report. [ 32 ] In all of the circumstances, and despite the positive steps apparently being taken by Mr. Malenovic, I am unable to find that the “exceptional circumstances” in Voong apply to him.

Accordingly a sentencing range which begins at six months applies. However, I find that the circumstances of this offence, combined with the mitigating and aggravating factors put this at the bottom of that range. [ 33 ] Please stand, Mr. Malenovic. You are sentenced to six months in custody. Following your release from custody you will be subject to one year of probation. The terms of the probation shall be: 1. Keep the peace and be of good behaviour. 2. You must appear before the court when required to do so by the court. 3.

You must report in person to a probation officer at 2610 Maryhill Road, Port Coquitlam, B.C. within two business days following your release from custody unless you have obtained, prior to your release, written permission from the probation officer to report elsewhere or within a different time frame. After that you must report as directed by your probation officer. 4. When first reporting to your Probation officer, you must inform him or her of your residential address and phone number. You must not change your residence or phone number without written permission from your probation officer. 5.

You must attend, participate in and successfully complete any intake, assessment, counselling or program as directed by your probation officer. [ 34 ] Pursuant to s. 109 of the Criminal Code , you are prohibited from possessing: a. any firearm, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition and explosive substance for a period of 10 years, and b. any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [ 35 ] Pursuant to s. 16 CDSA there will be an order for forfeiture of all items seized in this investigation including the cell phones, drugs and the $1025 in cash. [ 36 ] I am satisfied that, although this is a secondary offence, given the nature of this offence as involving a dial-a-dope operation, it is in the best interests of the administration of justice to order for the taking of a DNA sample.

The Honourable Judge R. McQuillan Provincial Court of British Columbia