R. v. Hunt, 2012 NLCA 5

Date: 20120 201 Docket: 11/33 Citation: R. v. Hunt , 2012 NLCA 5 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : DUSTIN HUNT APPELLANT AND : HER MAJESTY THE QUEEN RESPONDENT Coram: Welsh, Barry and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200905T0216 Appeal Heard: January 10, 2012 Judgment Rendered: February 1, 2012 Reasons for Judgment by Barry, J.A. Concurred in by Welsh and Harrington, JJA. Counsel for the Appellant: Mark Gruchy Counsel for Her Majesty the Queen in Right of Canada: Jill Hartlen Counsel for Her Majesty the Queen in Right of Newfoundland and Labrador: Robin Fowler Barry J.A.:

[ 1 ] Leave to appeal sentence being granted, the appellant, Dustin Hunt, appeals from a sentence of 12 months’ incarceration imposed by the trial judge following a guilty plea on a charge of possession of marijuana for the purpose of trafficking. This followed from discovery of 39 grams of marijuana and trafficking paraphernalia on a search of the appellant’s residence. [ 2 ] The appellant submits the length of this sentence was demonstrably unfit and, in any event, says the appellant should have been permitted to serve the sentence conditionally in the community.

BACKGROUND FACTS [ 3 ] When the RCMP executed a search warrant on the residence of the appellant at Bonavista on August 27, 2008, they found approximately one gram of loose marijuana on the top of a television in the appellant’s room, a bag containing nine grams of marijuana and a “score card” in a cabinet in his bedroom, an electronic scale with marijuana residue in his closet, and 29 grams of marijuana inside a VCR/DVD combination unit in his living room. [ 4 ] The appellant claimed that the ten grams of marijuana were for his own personal use and for medical purposes while denying any knowledge about the marijuana found in the VCR, saying that he had recently purchased the unit.

The next day the appellant called the RCMP to say that Stephen Marsh wanted to tell the police that the VCR unit and the marijuana in it belonged to Marsh. Upon questioning, Marsh quickly admitted that the marijuana was not his but rather belonged to the appellant. Marsh had initiated the plan to provide false information, but the appellant facilitated this by his telephone call to the police. Marsh had also told the police that the appellant had been selling marijuana in relatively small quantities (“joints, nickels and dimes”) only to people he knew. [ 5 ] The appellant was born September 25, 1987.

He has a grade eight education. At the time of the offences, he was unemployed and on social assistance. His pre-sentence report revealed he had been the victim of childhood sexual abuse, resided in an abusive home generally as a youth, suffered from a learning disability, and in his late teens had been addicted to cocaine for six months.

He has a common-law spouse and a young son and for a number of years had worked seasonally, with Employment Insurance and social assistance supplementing his income. [ 6 ] The appellant pleaded guilty to a charge of obstruction of justice for providing false information to the police and received a custodial sentence of three months consecutive on that charge.

He takes no issue with the length of that sentence, but submits he should have been permitted to serve it in the community. [ 7 ] The appellant has a criminal record as follows: - in 2002, one year’s probation for theft; - in 2003, 18 months’ probation for mischief in relation to property and a suspended sentence for assault; - in 2004, conviction for possession of marijuana for the purpose of trafficking and three counts of failure to comply with the disposition of his previous charges; - in 2006, conviction on two counts of unlawful possession or sale of tobacco products, with fines imposed; and - on January 8, 2010, conviction for causing a disturbance on August 30, 2008 and for failing to attend court, with a sentence of 30 days intermittent and probation of 12 months imposed.

THE ISSUES [ 8 ] Two main issues arise: (

i) Was the 12-month sentence for possession for the purpose of trafficking demonstrably unfit in the circumstances? (ii) Should the trial judge have permitted the appellant to serve the sentences conditionally in the community? THE SENTENCING DECISION AT TRIAL [ 9 ] The trial judge noted the fundamental purpose of sentencing and the objects of denunciation, deterrence and rehabilitation set out in

section 718 of the Criminal Code , the principle of proportionality noted in

section 718.1 , and the need to look at mitigating or aggravating circumstances and to adopt sanctions other than imprisonment if reasonable in the circumstances, as described in

section 718.2 . He recognized that the court must weigh all the relevant factors, with the overriding consideration throughout being the protection of the public and determination of how that can be achieved in the context of the charges and the circumstances of the offence, the aim being to have the sentence fit both the offence and the offender. [ 10 ] The trial judge referred to the “normal maximum” for trafficking in marijuana (other than large quantities) as being around 24 months, citing R. v. Provost , 2006 NLCA 30 . He also cited the following cases: R. v.

Blanchard , 2010 NLTD 123 (where there was a conditional sentence of 15 months imposed on a youthful offender with no previous record who was a highway drug courier convicted of possession of 13 kilograms of marijuana for the purpose of trafficking); R. v.

Byrne , 2009 NLCA 3 (where after a guilty plea to possession for the purpose of trafficking of ten ounces of cocaine valued at $18,000, a conditional sentence of two years less a day was imposed; the 28-year-old accused had no prior record and was employed full time, and this Court noted the sentence was at the lower end of the sentencing range for cocaine trafficking); and R. v.

Barrett , 2008 NLCA 23 (where a 27-year-old offender with one previous conviction for possession of $100 worth of marijuana, who pleaded guilty to five counts of possession for the purpose of trafficking of drugs with an estimated street value of $29,000 (including marijuana, ecstasy, hash oil, and small amounts of cocaine and LSD), was sentenced to a conditional sentence of two years

less a day). [11] The trial judge concluded that a sentence of 12 months was necessary in the appellant’s case to achieve appropriate specificand general deterrence. He found that the appellant had “shown consistent disregard for the law and a failure to comply with courtorders”. Finding “continued participation in criminal behaviour”, the trial judge concluded it was necessary to deny a conditionalsentence in order to achieve the appropriate level of specific and general deterrence. STANDARD OF REVIEW [12] This Court must show deference to the sentencing decision of the trial judge.

Absent an error in principle, failure to consider arelevant factor, or an over-emphasis of the appropriate factors, this Court should only intervene to vary a sentence imposed at trial if thesentence is demonstrably unfit: R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500, and Provost. APPROPRIATE LENGTH OF SENTENCE [13] The parties agreed the trial judge made no error in principle and considered all relevant factors (though defence counselsubmits rehabilitation was not sufficiently emphasized).

The first question, therefore, is whether the sentence of 12 months isdemonstrably unfit in the circumstances for an offender found by the trial judge to be “a street level, small-time player in the drugworld”. [14] Leaving aside for the moment the matter of prior record, the 12-month sentence for possession for the purpose of trafficking issignificantly longer than the sentences imposed in the most similar cases to which this Court has been referred. See, in particular, thecases summarized in Provost at paragraph 51, especially R. v.

Quilty (1997), (NL CA), 156 Nfld. & P.E.I.R. 320(NFCA) — three accused (father, mother and son) pleaded guilty to selling small quantities of cannabis resin from their home over afour-month period, and where conditional sentences of three months and 100 hours of community service plus three years’ probation forthe parents were upheld on appeal — and R. v. Pardy (1998), (NL CA), 162 Nfld. & P.E.I.R. 178 (NFCA) —possession of six kilograms of marijuana for the purpose of trafficking where an eight-month conditional sentence, 100 hours ofcommunity service and two years probation was imposed.

On appeal, Gushue C.J.N. wrote at paragraph 4, “We do not disagree that thesentence is on the low side, but it is not in our view so inordinately low as to warrant interference by this court”. Also noted in Provostwas R. v. Castilloux (2002), (NL SC), 211 Nfld. & P.E.I.R. 272 (NLTD), where a co-accused after a jointsubmission, received a sentence of 12 months conditional and a $30,000.00 fine for trafficking 29 pounds of cannabis worth$250,000.00. [15] In R. v.

Park (2007), 74 W.C.B. (2d) 471 (NLPC), a 41-year-old offender found with 425 grams of marijuana worthapproximately $9,000.00, with three prior offences for causing a disturbance and obstructing a peace officer, received a sentence of sixmonths, which the trial judge would have ordered served in the community but for the request of the offender. [16] See also R. v. Saunders, 2010 Carswell Nfld. 233 (PC), where the court imposed a sentence of three months incarceration on anaccused found in possession of 67.5 grams of cannabis, three grams of psilocybin (“magic mushrooms”) and $470.00 in cash, plus a setof scales.

There the trial judge noted R. v. McGrath (2004), 233 Nfld. & P.E.I.R. 210 (NLPC) — three months conditional fortrafficking after the offender was found with two pounds of cannabis and one pound of cannabis resin — and R. v. Wiseman, [2010] N.J.No. 26 (PC) — 9 months conditional for possession for the purpose of trafficking where the offender with three prior convictions hadbeen found with 106 grams of marijuana and some ecstasy and percocet pills. [17] Looking at other jurisdictions, in R. v.

Nicholl (2005), 2005 NSPC 15 , 233 N.S.R. (2d) 6 (PC), an accused, who hadmade two one-gram sales of marijuana and later had been found with eight bags of marijuana, totaling 35 grams, as well as scales, wassentenced to a three-month conditional sentence and nine month’s probation when convicted of trafficking and possession for thepurposes of trafficking. One of the cases relied on there was R. v. MacIvor, 2002 NSSC 225, where possession of 79 marijuana plantsand three kilograms of dried marijuana resulted in a four-month period of incarceration. See also R. v.

Ashmore, 2010 BCSC 1941,where a 31-year- old offender with a “dated” record received a four month conditional sentence and six month’s probation for possessionof 120 grams of marijuana for the purpose of trafficking. [18] In the present case, the trial judge properly considered that the appellant had been previously convicted of possession for thepurpose of trafficking and other offences which exhibited disregard for the law.

The question then arises whether this Court shouldinterfere with the trial judge’s conclusion that a 12-month sentence was necessary to change the appellant’s attitude and deter him andothers from the offending conduct. Considering Quilty and other cases cited, the lower end of the range of sentence for possession forthe purpose of trafficking by street level dealers of small amounts of marijuana would be three months’ incarceration. However, where ayouthful offender has a criminal record, the sentencing range would more appropriately be increased to four to six months.

In theparticular circumstances of this case, time served (126 days) is sufficient to achieve the appropriate level of specific and generaldeterrence (see paragraph 19, below). The 12-month sentence was unnecessary in the circumstances and, with respect, demonstrablyunfit. It failed to sufficiently recognize the relatively small quantities involved, the guilty plea (though after a preliminary inquiry) andthe potential for rehabilitation (despite the somewhat dated record).

In light of this determination, it is unnecessary to consider whetherthe sentence for possession for the purpose of trafficking should be served conditionally. WHETHER THE OBSTRUCTION SENTENCE SHOULD BE CONDITIONAL [19] The appellant took no issue with the length of the sentence for obstruction and accepted that generally this sentence would beconsecutive to reflect the separate nature of the offence. A three-month sentence is within the range for this offence. In determiningwhether this sentence should be served conditionally, the following should be noted.

The appellant has been in a common-lawrelationship for approximately six years. He is the father of a 20 month old son. He has been seasonably employed as a roofer andplasterer-painter and now has a new job with an employer who showed support by attending on this appeal. Given his age, familycircumstances and opportunity for employment, a reasonable prospect for rehabilitation arises. A custodial sentence of excessive length

risks endangering this. [ 20 ] In the particular circumstances of this case, ordering a conditional sentence for the obstruction charge is appropriate. The three-month sentence for obstruction will be served under the following conditions: (

a) keep the peace and be of good behaviour; (

b) appear before the court when required to do so by the court; (

c) report to a supervisor at the office of Adult Corrections at Clarenville (

i) within two working days after the making of the conditional sentence order; and (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor; (

d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; (

e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation; (

f) remain within your residence or on the property attached to that residence except for: (

i) attendance at your place of employment for purposes of employment only, traveling to and from your place of employment by direct route; (ii) one hour each day during daylight hours at a regular time to be approved by the supervisor for exercise, shopping, or carrying out personal business; (iii) attendance at medical or dental appointments; (iv) attendance at church; (

v) attendance for periods no longer than twenty-four hours which may be required for presently unforeseen reasons at the discretion of the supervisor; (vi) respond to the door personally for curfew checks; (vii) maintain a landline and answer the telephone personally for curfew checks; (viii) refrain absolutely from the possession and consumption of drugs except in accordance with a medical prescription; and (ix) attend and participate actively in any educational, assessment or counseling programs to which you are referred by the supervisor. [ 21 ] The two year period of probation with conditions as ordered by the trial judge is affirmed. The conditions are: (

a) keep the peace and be of good behaviour; (

b) appear before the Court when required to do so by the Court; (

c) report to a probation officer within seven days following the expiration of the conditional sentence order; (

d) notify the probation officer in advance of any change of name or address, and promptly notify the Court or the probation officer of any change of employment or occupation; (

e) be under the supervision of the probation officer and report thereafter when required and in the manner directed by the probation officer; (

f) remain within the jurisdiction of the Court unless written permission to go outside that jurisdiction is obtained from the Court or the probation officer; (

g) participate in any counseling programs for drug or alcohol addictions as may be directed by the probation officer.

SUMMARY AND DISPOSITION [ 22 ] In

summary: (

i) The 12-month sentence for possession for the purpose of trafficking was demonstrably unfit in light of the relatively small-scale dealing and antecedents of the appellant; time served (126 days) is sufficient to achieve the appropriate level of specific and general deterrence in the circumstances. (ii) The three-month sentence for obstruction should be served consecutively to recognize the separate offence, but in the circumstances of this case a conditional sentence is appropriate. (iii) The three-month sentence for obstruction shall be served in the community subject to the conditions set out in paragraph 20, above. (iv) A two-year period of probation shall be served following expiration of the conditional sentence in accordance with the terms prescribed in paragraph 21, above. (

v) Leave to appeal is granted, and the appeal is allowed in part. The sentence for possession for the purpose of trafficking is varied to time served (126 days), with a sentence of three months consecutive for the obstruction charge to be served conditionally, followed by two years probation. __________________________ L. D. Barry, J.A. I concur: _____________________ B.G. Welsh, J.A. I concur: ______________________ M.F. Harrington, J.A.