R. v. Inkster Date:, 2016 BCPC 450

Citation: R. v. Inkster Date: 20161220 2016 BCPC 450 File Nos: 214808-1 File Nos: 159079-1, 159079-7A, 159079-8A Registry: Surrey/Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal REGINA v. IAN JAMES INKSTER ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE A.M. WOLF Counsel for the Crown: A. Willms Counsel for the Crown: Federal Crown: K. Johnston

Counsel for the Defendant: J. Dhaliwal Place of Hearing: Victoria/Surrey , B.C. Dates of Hearing: February 3, November 3, 22, November 25, December 12, 2016 Date of Judgment: December 20, 2016 Introduction [ 1 ] THE COURT: Mr. Inkster has been found guilty after a trial of being in possession of four litres of GHB for the purpose of trafficking. He was also found guilty of the charge of simple possession of methamphetamine. The trial of this matter took place in Victoria, and the decision was recently given by me in Surrey, British Columbia, as Mr.

Inkster absconded in the middle of the trial before the decision could be given. [ 2 ] He has a number of charges before the court that we are dealing with. The unlawful possession of the methamphetamine and the GHB charge arises from an incident that took place on October 4th, 2012. [ 3 ] There is a fail to report to a bail supervisor on May 23rd, 2014 and there is a personation or fraudulent personation charge contrary to s. 403, as well as a fail to attend court on February 5th, 2016. February 5th, 2016, if I am not mistaken, was the date that I was to give the decision in the trial matter.

Circumstances of the Offence [ 4 ] Police were tipped off that Mr. Inkster was returning to Victoria from the Lower Mainland with some drugs in his possession. They were surveilling his hotel when he arrived in a taxi and searched a bag in his possession. Upon searching the bag the police located two 2-litre bottles of GHB. An expert testified that these two bottles had a value of approximately $1,000. Crown Position on Sentencing [ 5 ] With respect to the possession of the GHB, the Crown seeks a six-month jail sentence to be followed by a 12-month period of probation.

They seek a number of conditions on that probation order as well as a lifetime weapons prohibition. For breach of his bail conditions, they seek a consecutive 14-day sentence along with another 14-day consecutive sentence for fail to appear at his trial. In

summary, as I understand the Crown's position they seek, essentially, a seven-month sentence minus time served, followed by 12 months of probation. Defence Position on Sentencing [ 6 ] The defence has raised an interesting argument; they pointed out to me that the date of the offence predates the provisions that forbid an imposition of a conditional sentence. In other words, this offence was committed at a time that a conditional sentence was available to the accused.

I indicated to counsel, in an effort to allow them an opportunity to convince me otherwise, that due to his failing to appear and breach of his undertaking, I was not convinced that he was an appropriate candidate for a conditional sentence, although I made it clear that I agreed that the sentencing option is available to the Court. [ 7 ] Crown argued, in 2001 he had a nine-month conditional sentence order for possession and trafficking, and that it obviously did not have the desired effect of deterring this offender from offending in the same manner. [ 8 ] Counsel for the accused argued, strongly and respectfully, that he did not breach the terms of his conditional sentence order.

Further, he points out that he did not breach the terms of his probation. Thus, he concludes, the previous imposition of the conditional sentence, in fact, did deter him. I tend to agree with defence counsel to a certain extent. Certainly, there is a big gap from his conviction in 2001 to today's date of sentencing. Effect on Community [ 9 ] It is a

Schedule 1 substance. There are no minimum punishments, and while the monetary value might be considered to be low, the effects of this drug in the community are high. R. v. Sansalone is a 2013 Ontario Court of Appeal decision found at docket C54341. This appeal had to do with a sentence of five years after one year's credit for pre-trial. I note the significant difference in that case versus Mr. Inkster's situation is that Mr. Inkster has been found guilty of having four litres of GHB while Sansalone had 600 litres. However, I find the comments in Sansalone provide some societal context in sentencing GHB cases.

At paragraph 17 of that decision, the court commented on GHB and indicated that it is commonly used to put into the drinks of unsuspecting third parties, mainly women, so as to render them unable to effectively resist others who seek to take sexual advantage of them. [ 10 ] At paragraph 18 the court stated that: It is implicit in the unchallenged identification of GHB as “a notorious date-rape drug” that one of its uses is for the criminal purpose of facilitating non-consensual sex with third-party victims, including women. [ 11 ] The Court of Appeal, however, found that he, being the trial judge, was alert to the fact that the appellant was not the actual vendor of the drug who might be said to know that the drug was going to be administered to an unsuspecting third party.

Nonetheless, he held that the appellant must accept responsibility for the nature of the transaction to which he willing lent his assistance. [ 12 ] R. v. Ziaee is a June 17th, 2016 Victoria decision of Mr. Justice MacKenzie. The accused in that case was sentenced for being in possession of cocaine and GHB. Both drugs are found under the same schedule. I note again that the actual circumstances are

substantially different. In that case, the accused had two kilos of powder cocaine and 7.5 litres of GHB. There was a joint submission in that case for 30 months' incarceration, although, the way the sentence was broken down, it appears the accused in that case received the 12-month concurrent sentence for the GHB. [ 13 ] I am familiar with the 2015 unreported case of Fox and Mussel (phonetic), which is a decision of Judge Koturbash. In that case, basically the two accused, aged 33 and 32, were running a dial-a-dope operation and the police set up a buy for one litre of GHB for $480.

Defence counsel, in that case, pointed out that there are other uses for GHB such as an alternative to steroids for body builders or as a recreational drug. They were sentenced to 90 days intermittent, served on alternating weekends.

Part of the rationale was, both these accused had a baby and the alternating weekends would allow them to co-parent. [ 14 ] This case reminds me that the drug may be a date-rape drug but it also is used recreationally as a steroid alternative and, as I understand it, as an alternative to alcohol for people that might be severe alcoholics. [ 15 ] I am told that the methamphetamine was for his personal use. I also asked Mr. Inkster if he was able to help me understand his possession of the GHB. I directly put my concern to him. Mr. Inkster, in his trial, said that his partner was involved with prostitution.

My concern was that the GHB might somehow be used to incapacitate individuals for the purpose of robbing them. [ 16 ] Mr. Inkster, very bravely addressed my concern. He said that the GHB was not used for that. He told me that he and his partner used the drug as an alcohol substitute. [ 17 ] It is difficult for me to reconcile certain factual issues. At trial, Mr. Inkster testified that the GHB was not his and that he did not even know what it was or what it was used for. I must temper that testimony with what he tells me today.

On this point, I accept his more recent explanation. [ 18 ] Nevertheless, the quantity of GHB was large and, as the expert testified, extremely consistent with possession for the purpose of trafficking. It is this charge that Mr. Inkster must be sentenced for. Circumstances of the Offender [ 19 ] Mr. Inkster was born and raised in the Lower Mainland. He is 40 years old. He has talents and abilities. He attended a chef program, went to college and has worked in many jobs over the years. He is able to remain clean and sober.

Principles to Consider [ 20 ] S. 718 of the Criminal Code of Canada sets out the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, the respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions. [ 21 ] There are many objectives of sentencing.

I find the most important sentencing principles in this are to denounce the unlawful conduct; to deter the offender and other persons from committing offences; to promote a sense of responsibility in the offender and acknowledgement of harm done to victims and to the community. [ 22 ] I am aware that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender and that, when possible, the least onerous alternative should always be considered.

To put it another way, all available sanctions, other than imprisonment that are reasonable under the circumstances, should be considered for all offenders. A sentence should be increased or reduced depending on what mitigating or aggravating factors exist. Factors of Mitigation [ 23 ] Some of the personal characteristics are mitigating. He is, relatively speaking, young and able to be a productive member of the community. He has told me through counsel that he plans to change his life, and that part of that plan is to be clean and sober and staying out of jail.

His criminal record has a huge gap in it from 2001 to present. Aggravating Factors [ 24 ] The quantity of the drug; the nature of the drug and its uses; the delay in concluding the trial; the fact that we are now dealing with separate and distinct crimes arising from different dates over a period of time.

Conclusion [ 25 ] In considering all the competing principles of sentencing, the circumstances of this offence and this particular offender, I am of the view the range of sentence is very wide. [ 26 ] While I have not found any case law to support the proposition of a suspended sentence as an option available to me, I find the exceptional circumstances argument made in dial-a-dope cases is open for me to consider. [ 27 ] I am also familiar with authorities that have imposed intermittent sentences for similar possession for the purpose charges. [ 28 ] In the circumstances, I am not of the view that there are alternative sentences available other than jail that are reasonable in the circumstances. [ 29 ] I understand the position that a conditional sentence may not be appropriate, for example, Mr.

Inkster did not plead guilty - he is not entitled to what might be considered a sentence reflective of remorse. He started this trial, he then skipped town. He did not turn himself in once he settled into his new home in Surrey. He committed further offences before the completion of this Victoria matter. [ 30 ] I appreciate that Mr. Inkster now wishes to begin a new life and as a result, I am going to impose the least restrictive sentence

that I find appropriate. In my view, if this sentencing was guided by the more recent laws forbidding the imposition of a conditional sentence, it is my view that a six-month sentence of jail would be warranted for the possession of GHB and methamphetamine. It was a large amount of GHB that would have great negative effects on the community of Victoria if it ever made it to their streets. R. v. Franklin is a 2001 BC Supreme Court case, and while that case dealt with dial-a-dope operations in the context of the Lower Mainland, I believe paragraphs 46 and 48 of Mr.

Justice Henderson's comments are equally applicable in this case: [46] The destructive potential of these drugs is so well known as not to require comment. [48] It is also my view that general deterrence is entitled to very considerable weight when imposing sentence for trafficking in hard drugs. … [ 31 ] While Mr. Inkster is charged with possession for the purpose of trafficking and not actual trafficking, there still must be consequences.

Once more, I believe denunciation and deterrence are major principles that I need to consider and give weight to. [ 32 ] In my view, his previous record is extremely aggravating as well. He received a nine-month conditional sentence for possession of a

Schedule 1 offence. Equally, I believe that 30 days would have been a reasonable sentence for not attending his trial. The law supports the Crown's submission for consecutive sentences for his breach and fail to appear. However, the trial had reached its end and no witnesses were inconvenienced. [ 33 ] In the end, however, the drug charge is four years old. Much of the delay was a result of Mr. Inkster. Some of it was not. Either way, all available sanctions, other than imprisonment, that are reasonable in the circumstance, should be considered for all offenders.

This principle was the same in 2012 as it is today. Mr. Inkster, I believe the previous conditional sentence order did have some effect on you. I am going to give you a sentence, that will put your words "I want a better life" to the test. You will succeed or you will fail depending on the choices you make in life. I am putting my faith in your wish to succeed. Please stand up. [ 34 ] For the possession of methamphetamine and GHB, possession for the purpose charge found on Information 159079, I impose a 12-month conditional sentence order.

The conditions are: [ 35 ] You shall keep the peace and be of good behaviour. [ 36 ] You are to appear before the court when required to do so by the court. [ 37 ] You are to report to your conditional sentence supervisor by December 21, 2016 at number 102-14245 56th Ave., Surrey, B.C. and thereafter as and when directed. [ 38 ] You are to reside where directed by the supervisor and do not change that residence without the prior written permission of the supervisor. [ 39 ] You are not to be outside your place of residence from 11 p.m. to 6 a.m., seven days a week, except with written permission of the supervisor. [ 40 ] You are to present yourself in person to any peace officer attending your residence to determine compliance with this condition. [ 41 ] You are to attend, participate, and successfully complete such counselling as directed by the supervisor, which may include but not limited to, substance abuse, alcohol abuse or life skills. [ 42 ] You are prohibited from owning, possessing or carrying any weapons as defined by the Criminal Code of Canada . [ 43 ] You are to abstain absolutely from the consumption of alcohol and/or non-prescribed drugs or those drugs as defined under the Controlled Drugs and Substances Act. [ 44 ] You are to carry a copy of this order on your person at all times when you are outside your place of residence and produce it upon demand of a peace officer. [ 45 ] I am not imposing a further period of probation but there will be a lifetime firearms prohibition and a victim fine surcharge. [ 46 ] All the time that you have served will be credited at one and a half and your record will reflect that amount of time on each of the charges.

So, to be clear, your breach is going to show the full amount of time that you have done. The fail to appear is going to show the full amount of time that you have done, and the impersonation charge will have the full amount of time that you have done. [ 47 ] So, I see looks from counsel and I will address any concerns that they have with respect to that. [ 48 ] MR. WILLMS: So, Your Honour, on the personation charges, just the entire amount of time that Mr. Inkster has spent in custody, I calculate that as 76 days.

On this matter at one and a half would be 114 days that he's done on the 214808 matter. [ 49 ] THE COURT: So I would like his record to reflect 114 days. (REASONS FOR SENTENCE CONCLUDED)