R. v. Dauphinee, 2014 NSSC 12

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Dauphinee, 2014 NSSC 12 Date: 20140109 Docket: CRH408760 Registry: Halifax Between: Her Majesty the Queen v. Michael James Dauphinee Judge: The Honourable Justice Felix A. Cacchione Heard: January 9, 2014, in Halifax, Nova Scotia Written Decision: January 14, 2014 Counsel: John Scott, for the Crown Brian F. Bailey, for Mr. Dauphinee By the Court : [ 1 ] I have reviewed the presentence report and brief filed by Mr. Bailey on behalf of Mr. Dauphinee. As I indicated earlier this is a sentencing on one count of s.95(1), possession of a prohibited or restricted weapon with ammunition readily available.

[ 2 ] Mr. Dauphinee is 27 years old. He is presently involved in a common law relationship and has been certainly dating and more recently living with his girlfriend of 10 years. They have one child who is six years old. Mr. Dauphinee has a limited education. It is pegged at somewhere between grade seven and nine level education. He does have a prior record for convictions as a youth and as an adult. None of those, however, relate to firearms. [ 3 ] Although the presentence report says that he was on probation at the time he was charged, the JEIN entries show that his probation period ended July 21, 2010.

These offences are dated November 10, 2010, and his probation ended four months prior to the offence. He was not on probation at the time. [ 4 ] It would appear that Mr. Dauphinee was quite candid during the interview process. He admitted that he had difficulties growing up. He described himself as a “ bad kid ” when he was growing up. He does, however, fortunately have the continued support of his family and his common law wife. He was diagnosed when he was seven years old with Attention Deficit Hyperactivity Disorder, and as a result of that when he was 12 years old he was placed in a group home setting.

He subsequently returned to live with his family. [ 5 ] Unfortunately for Mr. Dauphinee he became involved and associated with a negative peer group. From all that I have read and heard from counsel it would seem that Mr. Dauphinee has in fact changed his life around. I have, over the rather long period that I have been sitting here, heard many people say that they have changed their lifestyle and are committed to being law abiding members of society. I always take that with a bit of a grain of salt. However, in Mr. Dauphinee ’ s case I think that is quite accurate.

I do not think he is trying to pull the wool over anybody ’ s eyes, including the court. His common law spouse confirms that he has changed over the past few years. He had distanced himself from his former associates. He has returned to school. He obtained a certified trade and has been working full time in the construction industry. His focus at present is to support his family. [ 6 ] There is a comment in the presentence report, Mr. Dauphinee, about you being smart. You are.

The fact that you have a limited formal education does not mean that you are dumb or stupid and you can put your mind to something, you can do it. Obviously you have shown that by the course that you have taken. You got 88.5% and you were certified in the course that you took. [ 7 ] It is interesting, and Mr. Bailey makes a very valid point, that one looks at the comments of his employer who said that had he known Mr. Dauphinee had a criminal record and was involved before the courts, he would not have hired him. But he did hire him and found that Mr.

Dauphinee was a hard worker, intelligent, someone who was reliable, flexible and who caught onto the job requirements very quickly. The employer is the one who referred to him as a “ smart kid ” . And because of the potential that his employer seen, despite the fact that the employer knows that Mr. Dauphinee could go to a penitentiary if the Court does not accept the recommendation, for up to 10 years, the employer has maintained that he is prepared to rehire Mr. Dauphinee upon his release. [ 8 ] Before this period of employment Mr. Dauphinee ’ s employment history was rather limited.

He acknowledged to the probation officer that he was involved in illegal activities to support himself, that his choice of lifestyle led him to fear for his safety, and that is the reason that he possessed the weapon. [ 9 ] It really is a scary thought for citizens to walk the streets thinking or knowing that somebody is packing a piece.

And you know, I have done enough cases involving Glocks to know that unless you really know how to use that particular weapon, discharging it can cause what the military refer to as “ collateral damage ” , not hitting the target you want but hitting somebody who is just walking by. And that is a scary thought. [ 10 ] There is an interesting portion of the presentence report that refers to Mr. Dauphinee spending a year feeling sorry for himself and then deciding to make changes in his life. He has made the changes. He has upgraded his education. He has received formal skills training.

He has obtained legitimate employment and has supported his family. [ 11 ] I had the benefit last evening of reading a paper with respect to the development of the brain and how the executive functioning aspects of the brain are not fully developed at an age when Mr. Dauphinee began getting involved in criminal activity. He has, in my view, matured over the passage of time and he is to be commended for that. [ 12 ] There is a joint recommendation before the Court. Counsel are both experienced senior members of the Bar and very proficient

in criminal law. It is not a sentence that ought to be tinkered with. I am prepared to accept the recommendation which is for a three year period, that is the mandatory minimum sentence. I should add, parenthetically, that had it not been for this recent change in the criminal law that Mr. Dauphinee might not have served certainly as long in a federal institution as he will be serving. The recommendation, as I have said, is for three years in a federal institution, together with a lifetime prohibition against the possession of firearms or ammunition under s.109, as well as a DNA order. Mr.

Scott is also requesting a forfeiture of the firearms seized. That order will be granted as well. There is the issue of the Victim Fine Surcharge. That I will waive under s.737(5) because to impose that would create further undue hardship. Mr. Dauphinee is still on the hook for over $50,000.00 in fines and certainly that will be there when he gets out. He might have to work on paying that off. [ 13 ] As I said, both counsel are very experienced.

The Court, in cases such as this, should give serious consideration to the joint recommendation, which I have, and as I have said, I am prepared to accept it because the sentence is reasonable. It is a fit and proper sentence and it is not contrary to the public interest. Because this is a weapons offence, denunciation and deterrence are paramount. I bear in mind that Mr. Dauphinee has never been sentenced to a federal institution, that he was not on probation at the time and that he entered a guilty plea. Most importantly that he seems to have turned his life around. [ 14 ] Mr.

Dauphinee, I can only reiterate what counsel have said this morning. You made a good decision to turn your life around because given what you were doing, you probably would not have reached age 30. Now if you care about your common law spouse and your son, you are going to stay on the road that you are on right now. And be mindful that you are going to be in an environment where there are people who have not turned their lives around, who do not care about turning their lives around and who will probably be pressuring you to join their lifestyle.

You have to maintain the strength that you have shown so that when you come out, you do not go back to that way of life. Because if you do, I will not see you again because you will probably be in a coffin. [ 15 ] If you would stand please Mr. Dauphinee. With respect to the offence under s.95(1) of the Criminal Code I hereby sentence you to a period of three years in a federal institution. There will be an order that you provide a DNA sample. As well, there will be an order under s.109 of the Criminal Code prohibiting you from possessing any firearm or ammunition for your lifetime.

And as well, with respect to the firearm that was seized from you and the one that was found later on by police, those are forfeited to the Crown to be destroyed. Do you understand that sir? MR. DAUPHINEE : Yes. THE COURT : Good luck to you. The remaining charges on the indictment are withdrawn by the Crown. ________________ Cacchione, J.