R. v. Walker, 2014 NSSC 125

Supreme Court of Nova Scotia Citation: R. v. Walker , 2014 NSSC 125 Date: 20140327 Docket: CRH 412044 Registry: Halifax Between: Her Majesty the Queen v. Robert Sousa Walker Library Heading Judge: The Honourable Justice Peter P. Rosinski Sentencing date: March 27, 2014 in Halifax, Nova Scotia Subject: Criminal Law; Sentencing

Summary: The offender was convicted of two counts of possession for the purpose of trafficking under s. 5(2) of the Controlled Drugs and Substances Act , one count relating to cocaine and the other to ecstacy. The cocaine was found in a search incident to arresting the offender for property damage, when he was found attacking a vehicle and yelling at its driver, his former girlfriend. Police subsequently found MDMA/Ecstacy during an unrelated search of the offender’s apartment. The offender pleaded guilty to the charges.

In addition to the property damage offence, the offender had prior convictions for impaired driving and prohibited driving. The offender was about 39 years old at the time of sentencing and was married, with four daughters. He was self-employed as co-owner of a gym. There was a joint sentencing recommendation before the court. Result: The sentencing judge accepted the joint recommendation, imposing a sentence of four years imprisonment in a federal penitentiary, along with a ten-year firearms prohibition, a DNA order, and a forefeiture order in respect of exhibits seized in the police investigation.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. Supreme Court of Nova Scotia Citation: R. v. Walker 2014 , NSSC 125 Date: 20140327 Docket: CRH 412044 Registry: Halifax Between: Her Majesty the Queen

v. Robert Sousa Walker SENTENCING DECISION Judge: The Honourable Justice Peter P. Rosinski Heard: March 27, 2014 at Halifax, Nova Scotia Counsel: Angela Nimmo for the Crown Joel E. Pink, Q.C., for the Accused By the Court: [ 1 ] Mr. Walker is before the Court for sentencing on two counts committed on June 24, 2012 at Halifax: 1. did unlawfully have in his possession for the purpose of trafficking cocaine, a substance included in

Schedule 1 of the Controlled Drugs and Substances Act … and did thereby commit an offence contrary to section 5(2) of the said act; 2. did unlawfully have in his possession for the purpose of trafficking… [A drug possessing the chemical characteristics that are associated with the street drug called] Ecstasy a substance included in

Schedule 3 of the Controlled Drugs and Substances Act … and did thereby commit an offence contrary to section 5(2) of the said act. [ 2 ] Mr. Walker was charged on an Information sworn June 24, 2012. Crown proceeded by Indictment. On June 25, 2012 he was released on a recognizance with conditions in a cash amount, not deposited, of $20,000 with one surety, Mr. Peter Simas, his business partner. There were no curfew or house arrest conditions. With an inconsequential variation on August 24, 2012 those release conditions persisted to this date . [ 3 ] On January 17, 2013 Mr.

Walker waived his right to a Preliminary Inquiry and consented to committal to trial in the Nova Scotia Supreme Court. [ 4 ] On March 7, 2013 in Supreme Court, Mr. Walker pleaded not guilty – the matter was adjourned by consent to December 19, 2013 to set trial dates and on that date he entered pleas of guilty to both charges and the sentencing was set for today’s date. [ 5 ] In relation to the facts herein, I have a recitation of those in the comprehensive brief filed by Mr. Joel Pink, Q.C., on behalf of Mr. Walker.

Supplementing that, I also have the Crown’s March 27 letter. [ 6 ] At about 3:17 a.m. on June 24, 2012 patrol constables were walking northbound on Gottingen Street in Halifax and observed a male standing near a parked vehicle by a driver’s window . He was yelling and screaming while looking in the window of the vehicle and then observed to smash the driver side window with his arm. He continued to yell and scream at the driver and then attempted to reach inside the vehicle at the driver. At this point officers intervened. The male was noted to be in an agitated combative state.

He was placed under arrest for property damage and later identified as Mr. Walker. On searching him the officers discovered one ounce of cocaine in a heat-sealed plastic bag in his front right pocket, a black cell phone in his back right pocket, and $1,255 in cash all folded in half together in his left front pocket. He was re-arrested for property damage and possession for the purpose of trafficking.

He was read his Charter rights and caution – that is the right to silence - stated he understood and wished to speak with counsel. [ 7 ] The police identified the driver the vehicle as a Tannaya Hentelman, a female who said she had known Mr. Walker had been cheating on her and that they were fighting because of this and were breaking up. [ 8 ] At 5:23 a.m. June 24, 2012 two constables went to The Lofts - multiunit residential building on Gottingen Street - in an attempt to verify a possible address of the male they had in custody (not known to them at that time to be Mr.

Walker precisely) for property damage as a result of that related domestic incident. The officers located the building manager who buzzed them into the building and when they attended at the top floor and went to the last unit on the right-hand side, which they believed was the unit of the individual in question - Unit 212, the door was ajar. The officers announced themselves and entered the apartment. [ 9 ] Noted inside the apartment were two cell phones on the counter and another on the shelf.

A large amount of red pills in a plastic container which bore a resemblance to ecstasy/MDMA, a bullet mixer, a grinder on a shelf, a pot on the stove with an Under Armour white tube sock in the pot, and there was plastic showing out of the top which looked similar texture to the heat-sealed bag the Constable Hodgson had been shown by Constable Brewer earlier when they arrested Mr. Walker.

Constable Luck looked into a wallet on the kitchen island and verified with identification that was in it, that it was for the same male person they had arrested on the domestic property damage call earlier. [ 10 ] Further investigation revealed the pills in question were MDMA/Ecstasy.

[ 11 ] Later that day the police executed a search warrant at that apartment – 212, 2116 Gottingen Street and seized the following items: 1. approximately 2.4 kg of cocaine separated in various weights; 2. approximately 100 g of unknown powder believed to be a cutting agent used to repress or mix with cocaine to increase the overall volume; 3. a cocaine press; 4. a vacuum sealer and new packaging; 5. approximately $83,675 in Canadian currency; 6. 490 MDMA tablets; 7. score sheets; 8. weigh scales; 9. various bottles of steroids; 10. six mobile phones; 11. two laptop computers; and 12. an external hard drive. [ 12 ] On June 24, a warned video statement was taken from Mr.

Walker who claimed ownership of the items within his apartment, and as has been noted by the Crown, Mr. Walker has pled guilty to these charges – also a mitigating factor. [ 13 ] I also have the benefit of that Presentence Report dated April 15, 2013 prepared for sentencing on an impaired driving and prohibited driving charge April 23, 2013, as updated by Mr. Frank MacArthur’s most recent February 18 report. [ 14 ] Mr. Walker’s record at present is limited to: 1. s. 253(1) (

b) Criminal Code of Canada – an October 29, 2011 offence for which he was sentenced November 18, 2011 to a $1,000 fine and a one-year driving prohibition order; 2. s. 253(1) (

b) of the Criminal Code and s. 259(4) Criminal Code , being impaired driving or over 80 and prohibited driving infractions arising November 27, 2011 and sentencing having occurred April 23, 2013, at which time he received 45 days intermittent sentence in custody in total; 3. In relation to the smashing of the driver’s side window, s. 430(4) – a

summary conviction mischief/property damage offence for which he received on July 26, 2012 a $250 fine.

[15] Mr. Walker was born August 8, 1974 and lived in Winnipeg with his parents until he was 28 years of age. He then moved toNova Scotia approximately 12 years ago with his family. [16] He grew up and appears to have remained a successful and dedicated athlete, particularly in the martial arts field. He marriedhis present wife, Crystal Walker, 17 years ago and they have four daughters ranging in age from 9 to 16 years old. [17] Mr. Walker has been self-employed as co-owner with Mr. Peter Simas of Forca Gym for approximately 10 years.

According tothe Presentence Report, the household income resulting from both parents working was approximately $90,000 per year. Mr. Walkerclaimed to have no debt, although he did indicate he had declared bankruptcy six years ago, and does presently have a mortgagepayment. [18] In relation to his issues with alcohol, the Report confirmed that since December 2011 he had been attending, on a monthlybasis, with counselors at Crosby house, and that specifically Mr. Reggie Brown was of the view that Mr. Walker had been able tomaintain total abstinence and that “he’s a decent man with good moral fiber.

He made bad choices with regard to motor vehicles”. Mr.Brown surmised that because Mr. Walker was doing security in a nightclub environment where, at closing, he felt obligated to drink withthe employer or others, and thereby made poor decisions as well in relation to driving a motor vehicle. [19] In the more recent update Mr. Frank MacArthur reported that Mr. Walker continued living with his wife and four daughters. Hiswife stated that Mr.

Walker made a good choice in getting away from negative friends and that the matters before the Court are totallyout of character for her husband and that she has never had a concern with respect to Mr. Walker being involved with such things andremains in shock as to how this happened. [20] His business partner and friend, Peter Simas, stated he is of the opinion that this was an isolated situation and he’d never knownMr. Walker to be involved in anything like that before. He reiterated that Mr. Walker is a good person and an excellent father to hischildren. [21] Mr.

MacArthur ends the Presentence Report by stating: “in this writer’s opinion, interventions, along with any other terms andconditions imposed by the court which could assist this offender are to abstain completely from the use of alcohol and drugs; and attendfor assessment and counseling in substance abuse related programs would be beneficial.” The Joint Recommendation Herein [22] I have before me a joint recommendation by the Crown and Defence of imprisonment for four years. [23] Mr. Pink has drawn the Court’s attention to the following cases: - R v. Butt, 2010 NSCA 56 – Mr.

Butt received five years jail imposed instead of the 31/2 years imposed by the trial judge; - R. v. Sandhu [1994] B.C.J. No. 520 [BCCA] in which 4 ½ years jail was imposed for possession of a substantial quantity ofcocaine for the purpose of trafficking; - R. v. Cargill [1999] O.J. No. 5158 [Court of Justice] – a conviction for importing two kilograms of cocaine – 42 monthsimprisonment; - R. v. Miller [2000] A.J. No. 962 [Provincial Court] 1.1 kg of cocaine of 76% purity for which Mr. Miller was only interested tomake money, caused him to be sentenced to 4 ½ years jail; - R. v. C.N.H. (ON CA), [2002] O.J.

No. 4918 [Court of Appeal] – smuggling 4 kg of cocaine into Canada fromJamaica by a 19-year-old with no prior criminal record resulted in the Court of Appeal imposing a three-year jail sentence; - R. v. Henderson [2002] AJ No. 587 [Queen’s Bench] – Mr. Henderson sold $38,000 worth of cocaine and had possession of arevolver – 3 ½ years jail sentence imposed; - R. v. Kim [2005] BCJ No. 361 [Provincial Court] – Mr. Kim pled guilty to possession of cocaine for the purpose of exporting itand was arrested at airport with a number of grams of cocaine.

He had no criminal record – he was sentenced to three years in jail; - R. v. Fraser [2009] BCJ No. 925 [Court of Appeal] – the search of Mr. Fraser’s home revealed a variety of substances having a

street value of $375,000 – a guilty plea and no previous criminal record – the trial judge held the sentence range to be appropriately 4 to 6 years and imposed five years which was upheld by the Court of Appeal. [ 24 ] In relation to joint recommendations by counsel as to the range of sentences appropriate in criminal matters, our Court of Appeal has repeatedly emphasized that sentencing judges must give very serious consideration to the recommendations presented, and that the trial judge must assess whether the recommendation is within the acceptable range of sentences; and even where it is outside the range it ought to be given serious consideration bearing in mind that there are practical constraints on disclosure of important and legitimate factors which may have influenced the joint recommendation.

Our Court of Appeal made these collective comments in R. v. MacIvor , 2003 NSCA 60 ; R. v. G.E.P,. 2004 NSCA 154 ; R. v. Cromwell 2005 NSCA 137 , and R. v. Wright, 2010 NSCA 30 . [ 25 ] The appropriate range of sentence is dependent upon a similarity between this offender and these circumstances and other offenders and circumstances. [ 26 ] More recently our Court of Appeal has spoken about sentences in relation to trafficking contrary to the Controlled Drugs and Substances Act in R. v. Scott, 2013 NSCA 28 and R. v.

Howell , 2013 NSCA 67 . [ 27 ] In Scott the trial judge imposed a conditional sentence of two years less one day plus one year probation for having had possession for the purpose of trafficking 30 grams of powdered cocaine in his vehicle as well as scales and a small amount of marijuana and $280 in cash. The Crown sought a sentence of 30 months imprisonment. The Defence counsel sought a conditional sentence. The majority of the Court of Appeal, being Chief Justice MacDonald and Justice Beveridge, writing the decision, concluded that the sentence was not manifestly unfit.

Justice Saunders vigorously dissented in principle, and concluded that Mr. Scott ought to have received a sentence of 2 ½ years in prison, though given his extended period of release he was not prepared to have him re-incarcerated, and therefore would have suggested a more stringent conditional sentence order than that imposed by the majority. [ 28 ] In R. v.

Howell , Justice Beveridge, writing for himself and Justices Farrar and Bryson, dismissed the Crown’s appeal of the conditional sentence order of two years less one day imprisonment imposed after conviction for possession of cocaine for the purpose of trafficking. Mr. Howell was a low-level street dealer of cocaine supporting his drug habit, and only had one gram of cocaine in his possession when arrested. The Principles of Sentencing [ 29 ] These principles are contained in ss. 718 to 719 of the Criminal Code of Canada .

Specifically in relation to illegal drugs s. 10 of the Controlled Drugs and Substances Act can, in some cases, also have relevance. It is not been argued as applicable here, and does not appear that it is. [ 30 ] In assessing the appropriate range of sentence specifically relevant to Mr. Walker I keep in mind the cases cited to me. In assessing the appropriate specific range of sentence that could be imposed upon Mr. Walker I also keep in mind the principles of sentencing and specifically ss. 718 and 718.2.

Conclusion [ 31 ] The joint recommendation herein is for four years imprisonment to be imposed as the sentence today, and some further Orders. [ 32 ] I accept the recommendation and impose a sentence of four years imprisonment in a federal penitentiary for the two charges (each concurrent) before me. As well, I order that Mr. Walker be prohibited, pursuant to s. 109(1) (

c) of the Criminal Code from possessing any firearm other than a prohibited firearm or restricted firearm and any cross-bow, restricted weapon, ammunition and explosive substance during a period that begins today and ends 10 years after his release from imprisonment; and in relation to any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition, the prohibition is for life. [ 33 ] Also, as this is a secondary designated offence under s. 487.051 of the Criminal Code of Canada , I also authorize a DNA Order under s. 487.051(3) which I have a draft before me in the standard format. [ 34 ] As well, I order under s. 16 of the Controlled Drugs and Substances Act, forfeiture of all exhibits seized in the police investigation in the apartment of Mr.

Walker. [ 35 ] In relation to the matter of custody, counsel, are there any recommendations that you would want placed on the Warrant of Committal? I note Mr. MacArthur talked about substance abuse counselling and such, although that will become evident because these reasons of mine will be transcribed and provided to the parole authorities, so …. [ 36 ] MR. PINK: We’ll leave it to the authorities, My Lord, to see after their assessment of him whether or not he’s in need, okay? [ 37 ] THE COURT: Yes, alright, thank you. [ 38 ] MS. NIMMO: I have no recommendations. [ 39 ] THE COURT: Thank you, Ms.

Nimmo. [ 40 ] As with all matters, there is, as well, the matter of a victim fine surcharge. I’ve just examined this recently. At present there’s an obligation on the Court to impose a victim fine surcharge on each count of $200 per count; that the amount is to be payable within the time established by the Lieutenant Governor of the Province in which we are, which is Nova Scotia. So I will do so; so the victim fine surcharge in total is $400.

[ 41 ] Perhaps, just very briefly to Mr. Walker. The Court notes that the indications are that you had a wife and four daughters and a mortgage and a family home it appeared , an environment, that is to be contrasted with what appeared to be a residence at The Lofts in downtown Halifax; possibly the involvement of Ms. Tannaya Hentelman. If you will, it seemed that you were living parallel lives. At this point those lives have intersected, and the Court is sentencing you today. [ 42 ] What I noted in the materials that I reviewed was, by all accounts, you were a disciplined athlete.

But on the other hand, you were also trafficking a substance that was life-destroying to others. At this point in your life you face this term of imprisonment. I believe you have the previous discipline to get through this sentence and, if you will, to beat the fate that it is of many who go to a federal institution. I think you have the discipline not to be a career criminal, and I sincerely hope that is the case. [ 43 ] Thank you then, counsel, for your submissions and materials and that concludes the matter. Rosinski, J.