R. v. Howell, 2012 NSSC 264

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Howell , 2012 NSSC 264 Date: 20120531 Docket: CRH 325847 Registry: Halifax Between: Her Majesty The Queen v. William Frederick Howell Judge: The Honourable Justice M. Heather Robertson Heard: May 31, 2012, in Halifax, Nova Scotia Written Release of Decision: July 18, 2012 (Sentencing: May 31, 2012) Counsel: Jeffrey Moors, for the Crown Matthew Darrah, for the defendant Robertson, J.: (Orally) [ 1 ] Gentlemen, this is going to require that I do some writing.

However, I am prepared to render my decision this morning orally and ask that you let me write into my decision all the required case law that I would like to review which includes canvassing the cases that counsel has presented to me this morning. [ 2 ] Now, I will say, I recognize that cocaine is a serious offence and that a deterrence is a primary principle. We need to keep traffickers off the street and discourage this conduct in our society. It hurts people desperately. There are far too many victims.

I recognize the Court of Appeal has consistently said this is a serious offence for which there should be minimum incarceration of two years in a federal penitentiary, with rare exception. However, conditional sentences are imposed in exceptional circumstances and principles of rehabilitation must be considered along with deterrence. Occasionally, an exceptional circumstance arises where people who are victims themselves rise up above their own circumstances, cure themselves of their own addictions and reform themselves. It is

important and imperative that the courts have the capacity to recognize this event and to say “Okay this is an exceptional circumstanceand rehabilitation trumps deterrence.” This is such a case. [3] I have carefully read Mr. Howell’s pre-sentence report. I know that he has been on virtual house arrest for a couple years. He has a common-law relationship and he has two children. He has a good and supportive family. He is off drugs. He is off alcohol. He has done everything he can in his life to become a useful citizen at the age of 41 years.

I am not going to prevent him fromcontinuing on that path by imposing incarceration in a federal institution. This is an exception. Every now and then somebody gets outfrom under their addictions and they become a reformed person – a winner. They overcome their demons. Mr. Howell has done thisand I recognize it. So it is an exceptional case, it happens rarely but we have virtually seen this man live under house arrest, work, lookafter his family and beat his demons.

I want him to have that opportunity to become a good and productive citizen in our communityand I am going to sentence him to a conditional sentence of two years less a day, comprised of nine months house arrest but he will beable to continue to work, then a period of six months on a curfew following that house arrest, from 10:00 p.m. to 6:00 a.m. And hisconditional sentence will be completed in two years less a day. [4] I will sign the orders for the forfeiture, DNA and weapons prohibition. I recognize Mr. Howell has a past criminal record.

Ibelieve the circumstances exist today to show the other side of sentencing, that of some compassion and rehabilitation for a man who hasfixed up his life and wants to continue to support his family. So I will recognize the case law as I see it and distinguish Mr. Howell’scircumstances. [5] The Crown relied on R. v.

Knickle, 2009 NSCA 59, where the appeal of a conditional sentence of two years to be served inthe community followed by twelve months probation was allowed by the Nova Scotia Court of Appeal who expressed the view that anappropriate range of sentencing for cocaine traffickers should exceed two years’ imprisonment. Mr. Knickle was found guilty oftrafficking approximately 11 ounces of cocaine and had in his possession all the paraphernalia of a dealer. [6] In R. v.

Butt, 2010 NSCA 56, a sentence of nine years was imposed by the Nova Scotia Court of Appeal in substitution of thethree and one half years, more lenient sentence given by the lower court, who found mitigating circumstances of life style change andmedical considerations. Mr. Butt was seriously involved as a middle man in the drug trade dealing with hundreds of thousands of dollarsof drugs, and indeed was not reformed but faced other charges. [7] In R. v.

Byers (1989), 90 N.S.R. (2d) 264, Hart, J.A. expressed the often quoted view: [5] I would point out that the courts of this country have repeatedly made reference in recent years to the need to suppress a narcoticas dangerous as cocaine. It is a highly addictive substance and unfortunately has lately dropped in price to the point where it is one of thecommonest drugs marketed on the North American continent. Its ease in handling and transportation results in greatly increased profitsto the traffickers who deal in cocaine and some of its derivatives.

One has only to look at the daily reports in the press to observe theextent of its presence and the increase in many types of crime in the places where it is found. [6] In my opinion the time has come for this court to give warning to all those greedy persons who deal in the supply anddistribution of the narcotic cocaine that more severe penalties will be imposed even when relatively small amounts of the drug areinvolved. Nor should the lack of a criminal record stand in the way of a substantial period of imprisonment.

No one today can claim tobe so naive as to think that trafficking in cocaine can be conducted without serious damage to our social structure. [8] Justice Hart increased the sentence from one year to eighteen months. The amount of the narcotic involved was five gramswith a then street value of $500.00. [9] I accept the principles of sentencing as expressed in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61 and haveconsidered this case in making my determination. [10] It is important to note that the jury accepted the evidence of Constable Lane that Mr.

Howell was a “petty retailer” who indeedhad on his person two small re-sealable bags containing approximately 0.5 grams of cocaine.

[ 11 ] The jury also accepted that messages on his cell phone indicated he was at the lowest street level engaged in selling. [ 12 ] I agree with defence counsel that in the circumstances of this case are more in line with R. v. Scott, 2012 NSPC 6 , where a youthful offender selling to support his addiction was at sentencing drug free and by his own initiative in rehabilitation programmes.

A conditional sentence of two years less a day served in the community followed by one year probation was imposed. [ 13 ] As I indicated rare circumstance can exist, where a conditional sentence is appropriate in a case where the accused is convicted of trafficking. [ 14 ] The court has signed the requested orders: forfeiture, DNA and weapons prohibition. Justice M. Heather Robertson