r v. Jesse, 2012 QCCQ 7384

R. c. Hanopol 2012 QCCQ 7384 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-000598-075 DATE: 20 March 2012 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Jesse HANOPOL Accused _____________________________________________________________________________ JUDGMENT Sentence _____________________________________________________________________________ [ 1 ] Mr.

Hanopol pleaded guilty to one count of possession of a restricted firearm [1] and one count of possession of crack cocaine for the purpose of trafficking. [2] The offences were committed on 18 January 2007 when the offender was not quite nineteen years of age. [3] By consent sentence was deferred to allow him to complete collegial studies. He is now twenty-four. Today sentence must be imposed. [4] [ 2 ] As for the first count, the parties agree that there must be a sentence of one year in prison. At the time of the offence in 2007, this was the mandatory minimum sentence required by law.

This leaves the sentence for the second count to be determined. [ 3 ] Mr. Hanopol pleaded guilty to possession of thirteen (13) grams of crack cocaine for the purpose of trafficking. At the time of this offence he was involved in trafficking drugs strictly for financial gain. It was suggested that he was supplied for this purpose by persons involved in organised criminal activity but there was no affirmative proof to this effect. Similarly, it appears that at the time of the offence Mr. Hanopol had already been involved in this activity for some time.

Of course, he faces a sentence solely for the count relating to 18 January 2007 and not for a pattern of unspecified previous behaviour. [ 4 ] The objective gravity of this offence is self-evident. It is underscored by the significant quantity of crack cocaine that was seized. It is also reinforced by the seizure of the weapon, which Mr. Hanopol apparently stole from another dealer for self-protection. The objective gravity of this offence, long recognised and repeated by our courts, is also aggravated by the motive of personal financial gain.

The parties agree on this characterisation of the offence. [ 5 ] The parties also agree that there are important mitigating factors in this case. Apart from the guilty plea at the first opportunity, this offence was committed by a very young adult who acted immaturely and without judgment or consideration. The pre- sentence report makes clear that Mr. Hanopol grew up in conditions of some hardship. His parents divorced when he was young. His parents, together and singly, were of modest means. The report relates that Mr.

Hanopol was a good child and that he entered upon a double life when drug-dealing offered the opportunity of profit. He kept some of this profit for personal savings and he even contributed some of it to the maintenance of his family. The pre-sentence report notes that in view of these financial considerations the risk of recidivism cannot be entirely eliminated but it does not suggest that there is any reason to believe that re-offending is likely. [ 6 ] The parties also agree that since the offences Mr.

Hanopol has turned away from any criminal activity and has abandoned any contact with others involved in crime. He has completed collegial studies and wishes to undertake further studies at university. For some time he has successfully maintained an employment. Since the offence he has had no trouble with the police or the law. He has observed all conditions imposed upon him pending the resolution of these proceedings. Apart from the convictions in this matter, Mr. Hanopol has no criminal record and there are no other pending cases. In his testimony before the court Mr.

Hanopol expressed sincere remorse for involvement in the activities that bring him here. The prosecution accepts that he has turned away from criminal activity and that there are grounds to hope for complete rehabilitation. There is no indication of any kind that Mr. Hanopol presents a danger to society. Apart from his commitment to education and to responsible employment, he lives with his mother and brother. He has had a steady girlfriend for some time and she provides strong support for him.

[ 7 ] Apart from the objective gravity of the offence, the motive of financial gain is an aggravating factor. The mitigating factors include the age of the offender, his remorse and the early guilty plea. Most important, however, is the conduct of the offender since the offence. He has demonstrated not only that he can respect the law but that he can lead a productive and responsible life. Moreover, his conduct since the offence lays a strong and concrete foundation for rehabilitation. This is due to his efforts and to the support of those around him.

In short, there are strong indications that the fundamental purpose of sentencing will be realised in this case. [ 8 ] The prosecution submits that a fit sentence is a term of one year on the first count and a consecutive term of two years on the second count. In making this submission the prosecution says that a fit sentence for the second count would be three years in view of the objective gravity of the offence.

The prosecution says further that by recommending a consecutive sentence of two years for the second count it is giving full recognition to the offender's achievements in reforming his life. [ 9 ] Any sentence must seek to enhance respect for the law and for the maintenance of a just, peaceful and safe society by the imposition of just sanctions [5] that serve one or more of the objectives enumerated in

section 718 of the Criminal Code . These objectives are not ends in themselves but they are the principal means by which the law gives meaning to the quest in sentencing for the overarching aim of respect for the law and the maintenance of a just society. These objectives are also not always compatible. Where appropriate, some objectives must be given greater priority than others or perhaps very little. Their importance in any case will depend on the offence and the offender. [ 10 ] Any sanction must also respect the principles of sentencing enumerated in the Criminal Code and developed in the jurisprudence.

First among these is that a sentence must be proportionate to the gravity of the offence and the offender’s degree of responsibility for that offence. Among other principles to assist in the determination of a fit sentence that secures the stated objectives are these: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (

i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or (

v) evidence that the offence was a terrorism offence shall be deemed to be aggravating circumstances; (

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. Here too, as with the range of sentencing objectives, the priority of principles can shift in seeking respect for the law and the maintenance of a just society. [ 11 ] This is a case of competing objectives and principles in the determination of a fit sentence. For this reason it is appropriate to consider them in turn. [ 12 ] There can be no doubt that the offences to which Mr.

Hanopol pleaded guilty call for denunciation and deterrence – both general and specific. Except to the degree made necessary by a mandatory minimum sentence that is not contested, this is not a case that calls for the separation of the offender from society. Nor is it a case in which reparations for harm done can be considered a leading objective. Apart from denunciation and deterrence, the question posed by this case is the extent to which the sentence must be framed specifically to assist Mr.

Hanopol’s rehabilitation and to promote in him both a sense of responsibility and a lasting awareness of the harm done to the community. [ 13 ] The prosecution’s submission is that the two charges be kept distinct by imposing one year for the firearm, as required by the Code, and two years consecutive for the drugs. This is reasonable. Indeed, a penitentiary term of the three years on the drugs charge alone would be reasonable if denunciation and deterrence were the only objectives. A global sentence of three years concurrent on the two charges would certainly be reasonable.

It is reasonable because it takes into account the significant strides made by Mr. Hanopol in the time between the offences and today. Indeed, the prosecution submits that its submission makes generous allowance for these positive developments but submits further that the objective gravity of the drugs offence merits a consecutive sentence of two years. As already noted, the prosecution submitted that without such generous allowance for Mr. Hanopol’s achievements an appropriate sentence would be three years consecutive to the one year for the firearm.

The prosecution submitted that only a total of three years in these circumstances could give effect to the objectives of denunciation and deterrence. [ 14 ] The prosecution’s submission is not necessarily the only reasonable or fit sentence in the circumstances of this case. To begin,

having regard to the evidence before the Court, I am persuaded that emphasis must also be placed upon Mr. Hanopol’s rehabilitation and on the promotion of his sense of responsibility within the community. Having regard as well to these objectives and to all of the principles of sentencing, I am persuaded that another form of sentence would be a just sanction to promote respect for the law and the maintenance of a just society.

To be clear, this case calls for a sentence that blends denunciation and deterrence with rehabilitation. [ 15 ] The jurisprudence recognises that there are cases when it is fit and appropriate to depart from a typical sentence in order to give due recognition to all relevant considerations. This has been recently restated by the Supreme Court in Nasogaluak [6] as a principle of general application.

The Court of Appeal in Québec has specifically said that offences involving crack cocaine demand sentences that emphasise denunciation and deterrence but the Court has also said and shown on many occasions that clear recognition must also be given to the rehabilitation of the offender, and other restorative objectives, when justified by the circumstances of the case. [7] [ 16 ] This is such a case. The offender poses no danger to society. His education advances. His employment shows discipline. He has the support of his family and girlfriend.

The evidence of rehabilitation to this date is strong and there is every indication that that it will continue without any significant risk of re-offending. A penitentiary is not a place where Mr. Hanopol's rehabilitation would be encouraged or developed. The most appropriate place for him to realise the hopes of rehabilitation and personal responsibility is the community. [ 17 ] At the same time Mr. Hanopol deserves a sentence that is in some important measure punitive and retributive.

Only this can give due weight to the objective gravity of possessing crack cocaine in significant quantities for the purpose of trafficking. In Proulx [8] the Supreme Court asserted firmly that a conditional sentence of imprisonment should express a punitive element but that it can also serve the restorative aims that are inherent in the objective of rehabilitation. [ 18 ] The parties submit that one year must be imposed for the firearms offence and that a fit sentence must be imposed for the drugs offence.

The parties also agree in the abstract that the sentence for the drugs offence must be fit for the offence and for the offender. I agree and in my view a fit sentence to achieve the aims stated in the previous paragraph can be framed in three parts: one year provincial jail for the firearms offence; a consecutive conditional sentence of one year less a day for the drugs offence, with strict conditions to apply throughout the year; followed by three years of probation. [ 19 ] This is a severe sentence. It keeps Mr. Hanopol within the jurisdiction of the Court, under conditions, for five years.

There is no remission of a conditional sentence and the conditions must be observed for the entire year. There is no remission of the probation order for three years. The terms blend punishment and retribution with rehabilitation and hope. This sentence gives Mr. Hanopol an incentive to improve on his recent achievements and to make a better future for the rest of his life.

At the same time this sentence makes clear that he should expect no leniency if he fails to respect any of his conditions in the four years that follow his release from prison. [ 20 ] This sentence is consistent with the jurisprudence of the Supreme Court on two important points. First, Middleton [9] acknowledges that consecutive terms of closed custody and a conditional sentence are permissible. Second, it is consistent with settled principles concerning conditional sentences, notably that they be punitive and restorative.

It is consistent with the jurisprudence in Québec in which denunciation and deterrence may be blended with considerations of rehabilitation if justified by the evidence relating to the offender. [10] That evidence is clear in this case. As noted by the Court of Appeal in Moreira , [11] it is certainly clear enough to warrant special consideration and a conclusion that underscores the importance of rehabilitation as well as denunciation and deterrence.

The combined duration of the three parts to this sentence address specifically the principle of totality and the principle of parity. [ 21 ] The three components of the sentence in this case are closed custody in prison, a conditional sentence and probation. I repeat that, taken together, this will keep Mr. Hanopol under the supervision of the court for five years. I repeat as well that this is severe but also positive and constructive.

The length of this sentence in its entirety and the conditions that will endure to the completion of the probation blend clearly the elements of deterrence and denunciation with those of rehabilitation. This combination of objectives is more appropriate than a term of imprisonment in the penitentiary precisely because, in the circumstances of this case, it will encourage Mr. Hanopol to remain on the right path. ORDER 1. On the first count, possession of a restricted firearm with readily accessible ammunition and without authorisation, you will be imprisoned for one year from this day as required by law. 2.

On the second count, possession of crack cocaine for the purposes of trafficking, from the expiry of the sentence imposed in paragraph 1 of this order, you are sentenced to one year less a day of imprisonment to be served in the community as a conditional sentence under the following conditions: 2.1 You must keep the peace and be of good behaviour. 2.2 You must attend court when required. 2.3 You must present yourself to a supervisor within seventy-two (72) hours of your release from prison and thereafter according to the directions of a supervisor.

2.4 You must remain within the Province of Québec unless you have permission from the Court or a supervisor, in writing and in advance, to leave the Province of Québec. 2.5 You must advise the Court or a supervisor, in advance and in writing, of any change of address. 2.6 You must be at your place of residence at all times, with the following exceptions: 2.6.1 for purposes of formal education, including transportation to and from the place of learning; 2.6.2 for purposes of paid employment, including transportation to and from the place of work, and including any meetings or other efforts to seek paid employment if approved by a supervisor; 2.6.3 for medical emergencies affecting you, your mother, your sister or your girlfriend; 2.6.4 for meetings with a supervisor; 2.6.5 for personal needs between 10h00 and 17h00 on Saturday; and 2.6.6 for any other reason approved in advance by a supervisor. 2.7 You may not possess or traffick in any way in drugs. 2.8 You shall not be in the presence of any person who, to your knowledge, has a criminal record or trafficks or uses narcotics. 2.9 You shall not possess any weapons, explosives or ammunition for a period of ten (10) years according to

section 109 of the Criminal Code . 2.10 For communication by telephone you shall maintain at your place of residence a land line without call-forward and you shall not change the number of the line without prior approval of the court or a supervisor. 2.11 You shall appear before me in the third, ninth and twelfth month of the conditional sentence imposed by this paragraph. 3. From the expiry date of the conditional sentence imposed in the preceding paragraph, and in relation to the second count, you will be subject to a probation order for a period of three years.

This order will bind you under the usual statutory conditions. It will bind you to observe all of the conditions stated in paragraph 2 of this order except for the requirement that you be in your residence at all times. You shall be bound by any additional conditions imposed by the probation service, including attendance at any meetings with the probation service. For the purposes of this order you shall present yourself to the probation service within seventy-two hours of the expiry of the conditional sentence imposed under paragraph 2 of this order. 4.

The confiscation and destruction of any non-monetary items seized in the present matter is hereby ordered. 5. The confiscation of any monetary items seized in the present matter in hereby ordered. 6. There will be no surcharge.

____________________________________ PATRICK HEALY, J.C.Q. M e Alexandre Arel For the prosecutor M e Joseph Silver For Jesse Hanopol