R. v. Smith, 2013 NSSC 77

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Smith, 2013 NSSC 77 Date: 20130226 Docket: CRH 405369 Registry: Halifax Between: Her Majesty the Queen v. Earlandres Anthony Smith Judge: The Honourable Justice Felix A. Cacchione Heard: February 26, 2013, in Halifax, Nova Scotia Written Decision: February 28, 2013 Counsel: Shaun O ’ Leary, for the Federal Crown Melanie Perry, for the Provincial Crown Ian Hutchison, for Mr. Smith By the Court : (Orally) [ 1 ] Mr. Smith, you are a young man, but you are heading down a really dangerous road.

The fact that you, on two different occasions, possessed a very powerful firearm is not a good indication of how long you are going to live. You know, you have a gun, somebody else has a gun. Somebody gets shot. Somebody dies. That may be you. I have been told this morning that you have five children. You might want to think about them. Alright, you are going to go away for six years and they are not going to see you for a

long time. But hopefully they will see you when you get out. If you continue doing this, you know what the outcome is going to be. You live by the gun, you die by the gun. Alright, and that is not something that anybody would want to see. Have a seat. [ 2 ] Mr. Smith has a record which is short but it mirrors the offences for which he has pled guilty to today. As noted by counsel, this is a joint recommendation.

I do take into account the principles of sentencing contained in s. 718.1 of the Criminal Code and I also take into consideration the mitigating factor that a jury trial which was scheduled in this case has been averted as a result of the guilty plea. [ 3 ] The aggravating factors correctly pointed out by the Crown are his prior convictions for very similar offences, approximately five and a half years ago. At that time Mr. Smith received a 42 month sentence and had completed his parole some five months before this offence. That, to me, speaks volumes as to whether or not Mr.

Smith learned his lesson from his first stint in a federal institution. I can certainly hope that with age comes wisdom and that wisdom will arrive with Mr. Smith to make him see that he cannot continue doing this kind of thing without severe consequences. [ 4 ] He has pled guilty to possession for the purpose of trafficking under the Controlled Drugs and Substances Act .

As well, he has pled guilty to a series of weapons offences under the Criminal Code . [ 5 ] There is a joint recommendation before me for a period of 72 months which will be broken down in the following fashion. [ 6 ] With respect to Count #6 on the indictment, that is the s.95 offence, there will be a sentence of 72 months. There will as well be a DNA order and a s.109 firearms prohibition order which will last for life. With respect to Count#5, that is s.94(1), a 12 month concurrent sentence.

And as well there will be a six month concurrent sentence under Count #8 of the provincial indictment with regards to the offence under s.117.01. [ 7 ] With respect to the s.5(2) of the Controlled Drugs and Substances Act there will be a two year concurrent sentence. I have been advised that Mr. Smith has been on remand, 19 months will be deducted from the total sentence. [ 8 ] So the sentence that you will serve Mr. Smith is 53 months in a federal penitentiary. There will be a firearms prohibition for life. You will have to allow the police officers to take a DNA sample.

That is generally done by either a swab or a pinprick. [ 9 ] Mr. Smith, I hope I never see you again in these surroundings. I have a very long memory. Do you understand that? MR. SMITH : Yes. [ 10 ] You have to turn it around. Alright. That is not being a “ gansta ” . It is not cool anymore. [ 11 ] The orders are granted. 53 months in a federal institution. MS. PERRY My Lord, you did not, just on the record, mention the forfeiture order. The 491. [ 12 ] Yes, there is as well a forfeiture with respect to the firearms. MR.

O ’ LEARY : And with respect to... [ 13 ] And with respect to all of the items seized from Mr. Smith under CDSA.

MR. O ’ LEARY : Thank you My Lord. MS. PERRY : The remainder of the provincial charges are withdrawn. [ 14 ] Well he... I think the proper course would be for the Crown to offer no evidence on those. MS. PERRY : Oh, I just thought because it was a jury trial and he had not entered... [ 15 ] He has re-elected. The Crown ’ s offering no evidence. MS. PERRY : Thank you. MR. O ’ LEARY : Likewise with relation to the remaining CDSA count. [ 16 ] Alright then. With respect to Counts #1, #2, #3, #4, and #7 of the provincial indictment, those counts are dismissed for want of prosecution. Count #1 on the CDSA indictment is dismissed for want of prosecution. _____________________ Cacchione, J.