R. v. Kelley, 2019 NSSC 278

SUPREME COURT OF Nova Scotia Citation: R. v. Kelley, 2019 NSSC 278 Date: 20190719 Docket: CRBW 476793 Registry: Halifax Between: Her Majesty the Queen Plaintiff v. Michael Rene Kelley, Kandice Darlene Regan and Autum Dawn Roy Defendants Judge: The Honourable Justice Mona M. Lynch Heard: July 16, 2019, in Bridgewater, Nova Scotia Counsel: Josh Bryson, for the Plaintiff Claire Levasseur for the Defendant, Michael Kelley James Violande for the Defendant, Kandice Regan By the Court: Overview [ 1 ] The accused were both charged as a result of a police surveillance on August 30, 2017.

They were found guilty after a trial on May 13 th , 14 th and 15 th , 2019. Michael Kelley and Kandice Regan were both found guilty of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act . Kandice Regan was found guilty of two counts of breach of recognizance contrary to s. 145(3) of the Criminal Code for failing to keep the peace and be of good behaviour and failing to refrain from possession of a controlled substance.

Facts [ 2 ] On August 30 th , 2017, the two accused arrived in a motor vehicle driven by Michael Kelley and waited in a parking lot of a convenience store. Another car arrived and Michael Kelly got out of his car entered the other car, stayed for a very short period of time, exited to return to his car. [ 3 ] The police entered the parking lot and Michael Kelley was told he was under arrest and he threw13 baggies near the rear tire of the car he was driving. The baggies contained crack cocaine in the amount of 4.39 grams. [ 4 ] Kandice Regan remained in the car and was arrested.

Found in the vehicle which Michael Kelley was driving and Kandice Regan was a passenger were seven cell phones and drug paraphernalia. There was a drug purchase call when the Kelley/Regan car was being searched by the police and the person on the phone was looking for “Kandice” and wanting $100 worth of “hard” which referred to crack cocaine. [ 5 ] The phone of Kandice Regan revealed many text messages regarding the sale of cocaine. There were messages exchanged between the two accused about drug trafficking. Kandice Regan noted in one exchange with Michael Kelley that she had the same clients for years.

Presentence Reports Michael Kelley [ 6 ] The Presentence Report of Michael Kelley provides that he is 26 years old and has had a chaotic upbringing. His parents separated and he and his sister were shuffled between family members. He suffered physical abuse at the hands of his mother’s partner. His father was not very involved in his life after he remarried and had other children. [ 7 ] He does not have the support of either parent to the extent that his mother is moving to British Columbia and refuses to provide

him with contact information. He lost a girlfriend to an overdose in 2017 and is still grieving. He was diagnosed with ADHD and suffers from depression. [ 8 ] He does have the support of his sister and a new partner with whom he entered into a relationship in the spring of 2019. The plan upon release is for him to live with his new partner and be drug free. He has a drug addiction and is prescribed “Suboxone”. [ 9 ] He worked on a lobster boat as well as driving heavy equipment in the oil field.

He has been remanded in custody since March 2018 and there he completed a substance abuse management program and another program for Naloxone. Kandice Regan [ 10 ] Kandice Regan is 33 years of age. She lives with her mother, her 12 year-old daughter and her 2 year-old niece. [ 11 ] Her parents separated when she was 4 years-old and she lived with her mother. She was sexually abused by her mother’s partner from the ages of 9 to 13. She was devasted when she had to move at 18 years of age from Ontario to Bridgewater. She left her family and friends. She suffered racism in Bridgewater.

She had a seven year relationship with the father of her child and the father of her child then had a relationship with Kandice Regan’s sister and her 2 year-old niece is a result of that relationship. Kandice Regan’s sister has a substantial drug problem. [ 12 ] Kandice Regan has the support from her mother, the paternal grandparents of her daughter and a close friend.

Learning that her sister was pregnant with the child of her ex-boyfriend began her downward slide into drugs and the drug culture. [ 13 ] She was in a short relationship with Michael Kelley which was destructive and they were both abusing drugs. [ 14 ] She will continue to live with her mother and wants to work at her friend’s Tattoo shop when she is released from custody. [ 15 ] She has not really had steady employment and has not taken any drug counselling. She has been on house arrest since June 2018 and she has had some mental health concerns.

She is on the waitlist for counselling and has a job interview. [ 16 ] Ms. Regan absconded, as did Mr. Kelley, during the period while awaiting trial and she served her time for that. Legal Parameters [ 17 ] With regard to the substance itself and the effect on the community, there has been many judges in Nova Scotia and elsewhere who have commented on the devasting impact of crack cocaine on our communities. [ 18 ] The maximum penalty for possession for the purpose of trafficking in a

Schedule I substance is imprisonment for life. [ 19 ] The maximum penalty for breach of recognizance in an indictable situation is imprisonment for a term not exceeding two years.

Position of Crown [ 20 ] The Crown is seeking a term of imprisonment of 36 months total for Kandice Regan for all offences, broken down into 33 months for the possession for the purpose of trafficking and 3 months consecutive to the possession for the purpose, but concurrent to each other on the breach charges for a total of 36 months. [ 21 ] There is a joint recommendation for Michael Kelley of 42 months with 11 months credit for his time on remand, leaving a sentence of 31 months for Mr. Kelley to serve.

Position of Defence [ 22 ] The defence position for Michael Kelley is a joint recommendation. [ 23 ] The defence position for Kandace Regan is seeking a 36 month suspended sentence or a combination of intermittent time and a suspended sentence, but no straight incarceration time. Caselaw [ 24 ] With regard to the caselaw in relation to this type of offence, the Nova Scotia Court of Appeal has been consistent in saying that the primary consideration for sentences involving trafficking or possession for the purposes of trafficking in cocaine are deterrence and denunciation and that was reiterated in the R. v.

Oickle , 2015 NSCA 87 . [ 25 ] Nova Scotia courts have also reiterated that a sentence of less than two years of imprisonment is rare as noted by Justice Warner in R. v. Forward , 2017 NSSC 190 . [ 26 ] In R. v. Rushton , 2017 NSPC 2 , Judge Buckle acknowledged that a sentence less than a federal penitentiary sentence was rare for trafficking cocaine but in the circumstances she was dealing with she imposed a suspended sentence with three years of probation. In that case, the person being sentenced was a young adult, an addict who had taken extraordinary steps toward rehabilitation and turning his life around.

Judge Buckle notes in that case that the caselaw shows that sentences at the lower end of the range usually have one or more of the following – addictions, youth, limited or no record, relatively small amount of drugs, some hope of rehabilitation and an absence of aggravating factors. [ 27 ] Most recently in R. v. Chase , 2019 NSCA 36 , they upheld a ninety-day intermittent sentence followed by three years of probation. The Court noted that sentences outside the normal range do not mean an unfit sentence. Again, that was a situation where Mr. Chase had completely turned his life around.

Principles of Sentencing [ 28 ] I have to consider s. 10 of the Controlled Drugs and Substances Act as well as ss. 718 , 718.1 and 718.2 of the Criminal Code of Canada . [ 29 ] The purpose of sentencing in s. 718 is to protect society and to contribute to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives outlined. [ 30 ] As noted, the Nova Scotia Court of Appeal has said that the primary objectives for an offence involving trafficking or possession for the purposes of trafficking in cocaine is denunciation and deterrence, however I can not lose sight of rehabilitation. [ 31 ]

Section 10 of the Controlled Drugs and Substances Act provides that a fundamental purpose of any sentence is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation and treatment in appropriate circumstances of an offender and acknowledging the harm to victims and to the community. [ 32 ] For Michael Kelley, the Controlled Drugs and Substances Act provides it is an aggravating factor that he has a prior offence of possession for the purposes of trafficking. [ 33 ] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). [ 34 ] The sentence must be similar to sentences given for similar offences in similar circumstances to similar offenders.

I must consider the aggravating and mitigating factors relating to the offence and the offenders and consecutive sentences should not make the combined sentence unduly harsh or long and an offender should not be deprived of liberty if less restrictive sanctions may be appropriate, and all available sanctions other than imprisonment that are reasonable in the circumstances should be considered. [ 35 ] Those principles have to be balanced in determining an appropriate and just sentence from Michael Kelley and Kandice Regan. Mitigating and Aggravating Factors Mitigating Factors - Michael Kelley a.

He is a relatively youthful offender, 26 years of age, with a possibility of rehabilitation; b. He has had a difficult upbringing and suffered physical abuse and suffers from mental illness; c. He complete the Substance Abuse Management program and a Naloxone training while in custody; d. He was a petty retailer driven by his addiction; and e. He has some support on release. Aggravating Factors – Michael Kelley a. He has a prior offence for possession for the purpose of trafficking; b. He has 15 prior offences including many for failure to comply with conditions; and c. The substance is cocaine.

Mitigating Factors – Kandice Regan a. She is relatively young, 33 years old, with a possibility of rehabilitation; b. She has significant support from her family and a friend; c. She has taken responsibility for the offence and has expressed remorse; d. She was sexually abused as a child and suffers from mental illness as well; e. She was a petty retailer, driven by her addiction; and f. She has abided by her release conditions since June 2018 and had no breaches of probation. Aggravating factors for Kandice Regan a.

She has a record of 20 prior offences, including many for failing to comply with conditions or failing to appear in court; b. The substance was cocaine; c. She was released on conditions early on the day of these offences; d. She has not taken counselling or treatment for her addiction; e. She did breach the original release conditions; and f. There was a degree of sophistication shown in her involvement in the drug trade as demonstrated by the text messages, comments

such as she had kept the same clients over the years; she didn’t want to keep them waiting; and her communication with multiple parties, all of which show an entrenchment in the drug trade at the time of these offences. ANALYSIS [ 36 ] Both Crown and defence noted that the third co-accused received a suspended sentence. That was a situation where there were no breaches of the strict conditions of the recognizance, no prior record, no aggravating circumstances and no evidence of entrenchment in the drug culture. She had letters of support including from the police.

It was one of the rare cases where a sentence to a period of two years in a federal penitentiary was not appropriate. [ 37 ] I do not consider the circumstances of Michael Kelley or Kandice Regan as belonging to one of those rare cases that something less than a federal penitentiary sentence would be the proper sentence. [ 38 ] Both Michael Kelley and Kandice Regan have significant prior records. Michael Kelley has a prior related record and multiple breach convictions. Kandice Regan is being sentenced for the possession for the purposes of trafficking and two breaches of her recognizance.

Both absconded and breached conditions in relation to these offences. [ 39 ] While they were not large scale retailers, I found that they were petty retailers in the Fifield factors, they were on the higher end of a petty retailer. The text messages show, particularly, Kandice Regan was well involved in the drug trade. Kandice Regan was the one making the arrangements for the sale of the crack cocaine once they received it.

Neither can be said to have turned their life around. [ 40 ] The Crown has suggested that the range of sentences is between two and five years and they are asking for the 42 months for Michael Kelley and 36 months for Kandice Regan. [ 41 ] There is a joint recommendation from the Crown and defence for Michael Kelley. The Supreme Court of Canada in R. v. Anthony Cook , 2016 SCC 43 , reviewed the law with regard to a joint recommendation and provided guidance for trial judges. They set out the test for a trial judge where there is a joint recommendation as the public interest test.

Under that test, a judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise contrary to the public interest.

The court also notes that the parties must have a high degree of confidence that joint recommendations will be accepted and therefore judges should exhibit restraint and only reject joint submissions where the sentence would be viewed by a reasonably informed person as a breakdown in the functioning of the justice system. [ 42 ] For Michael Kelley, I find that an appropriate sentence would be the 42 months jointly recommended reduced to 31 months when his remand time of 11 months is deducted. [ 43 ] For Kandice Regan, she does not have a prior related offence, but she was released from custody on the day of the offence.

She has a significant record. She does not fall into one of the rare cases where she has totally turned her life around. Defence counsel says that she was on house arrest and was unable to work and get counselling. However she was on house arrest because she breached the provisions of her first recognizance and absconded. Therefore, I find 27 months would be the appropriate sentence for the possession for the purposes of trafficking and 3 months consecutive to the possession but concurrent to each other on the breach of recognizance counts.

That would result in a total sentence of 30 months and there will be 14 days deducted for a total sentence of 29.5 months. Ancillary Orders [ 44 ] The following ancillary orders are granted: 1. DNA Order;

Section 109 weapons prohibition for a 10-year period; and 3. Forfeiture Order for related non-chemical property. SENTENCE [ 45 ] Michael Kelley is sentenced to a period of incarceration of 42 months for the charge of possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act on August 30, 2017. [ 46 ] Michael Kelley will receive an 11 month credit for time served.

The total sentence is 31 months. [ 47 ] Kandice Regan is sentenced to a period of incarceration of 27 months on the charge of possession of cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act on August 30, 2017. [ 48 ] Kandice Regan is further sentenced to a period of incarceration of 3 months, consecutive to the s. 5(2) of the Controlled Drugs and Substances Act on the charge of breach of recognizance for failing to keep the peace and be of good behaviour on August 30, 2017 contrary to s. 145(3) of the Criminal Code of Canada . [ 49 ] Kandice Regan is further sentenced to a period of incarceration of 3 months, consecutive to the s. 5(2) of the Controlled Drugs and Substances Act but concurrent to the s. 145(3) of the Criminal Code of Canada on the charge of breach of recognizance for failing to comply with a condition to not consume or possess a controlled substance, contrary to s. 145(3) of the Criminal Code of Canada . [ 50 ] Kandice Regan will receive a 14 day credit for time served.

Total sentence is 29.5 months. Lynch, J.