R. v. Cuff, 2019 NLSC 112

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Cuff , 2019 NLSC 112 Date : June 3, 2019 Docket : 201705G0142 Her Majesty The Queen v. Daina Eric Cuff Before: Justice Vikas Khaladkar Place of Hearing: Gander, Newfoundland and Labrador Date of Hearing: May 24, 2019 Date of Oral Judgment: June 3, 2019

Summary: The Accused entered guilty pleas to two counts of possession of

Schedule I drugs for the purposes of trafficking, namely Cocaine and Oxycodone. The Accused is 51 years of age, has no prior convictions and cooperated with the police. He entered a plea of guilty to the charges and, while not at the first opportunity, his acceptance of responsibility circumvented the necessity of a trial. The Accused valued the Cocaine in his possession at a street value of $77,500. He valued the street value of the Oxycodone at $12,480. The total value of the drugs in his possession was, accordingly $89,980. He is sentenced to a term of incarceration of 36 months.

In addition, a Forfeiture Order is made in relation to the vehicle used to transport the drugs, the cash that was confiscated from him at the time of the arrest, the drugs and drug paraphernalia seized from him as well as some weapons that were found in his vehicle. Appearances:

Adam B. Joyce Appearing on behalf of the Crown Randolph J. Piercey, Q.C. Appearing on behalf of the Accused Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak, 2010 SCC 6; R. v. Ipelee, 2012 SCC 13; R. v. Kane, 2012 NLCA 53; R. v. Silveira, (SCC), [1995] 2 S.C.R. 297; R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 74 C.C.C. (3d) 360(Nfld. C.A.); R. v. Snow, 2006 NLTD 3; R. v. Klassen, 2011 NLTD(G) 100; R. v. Brake, [2017] N.J. No. 300, 139 W.C.B. (2d) 605(N.L. Prov. Ct.); R. v. Pittman, 2018 NLSC 135; R. v.

Parsons, 2015 NLTD(G) 180 STATUTES CONSIDERED: Controlled Drugs and Substances Act, S.C. 1996, c. 19; Criminal Code, R.S.C. 1985, c. C-46 REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Accused entered guilty pleas to the following offences: a. On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did possess asubstance included in

Schedule I to wit: Cocaine, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs andSubstances Act. b. On or about the 28th day of April, A.D. 2016, at the Town of Gander, in the Province of Newfoundland and Labrador, did possess asubstance included in

Schedule I to wit: Oxycodone, for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs andSubstances Act. [2] Based upon the facts heard by me in the trial of a Co-Accused, as supplemented by the Crown, I find that there is sufficientevidence to find the Accused guilty of possession of Cocaine and Oxycodone, both

Schedule I drugs under section 5(2) of the ControlledDrugs and Substances Act, S.C. 1996, c. 19 (“Act”), being Counts 1 and 2 in the Bill of Indictment in this matter. [3] Briefly, the Accused drove from his home in Glenwood to St. John’s, both in Newfoundland and Labrador, on April 28th,2016. While in St. John’s he was observed by police meeting with a known drug dealer from whom he obtained a brick of Cocaine and208 Oxycodone pills.

He was followed to Gander by members of the Royal Newfoundland Constabulary to establish continuity, wherehe was stopped and arrested by the Royal Canadian Mounted Police (“RCMP”). [4] The Accused was given his rights to counsel and the standard police warning. The truck that he was driving was seized andtransported to the RCMP detachment to be searched. He gave a cautioned, video-taped statement in which he admitted to possession of775 grams of Cocaine and 208 Oxycodone pills for the purposes of trafficking. The Accused stated the street value of the Cocaine was$100 per gram, or $77,500.

He further stated that the street value of the Oxycodone was $60 per pill or $12,480. The Accused wastransporting, therefore, almost $90,000 worth of illicit drugs. [5] The Accused is 51 years of age and operates a small business. In addition, he has a fishing license. He has never been in anytrouble with the law and has no previous record. He is the sole provider for his family. Crown’s Position on Sentencing [6] The Crown stated the maximum period of incarceration for these offences is life. There is no minimum sentence.

The Crownindicated that the range for this type of offence is between 42 to 48 months, and requested a period of incarceration of 42 months. TheCrown is also seeking forfeiture of all items seized, a 10-year firearms prohibition and a DNA order. Defence’s Position on Sentencing [7] The Defence stated that the lower end of the range is below two years. Mr. Piercey, Q.C. disagreed that the range ofsentencing goes up to four years. He stated the range is from 24 months to 42 months. His position was that the Accused fits neither at

the top end of the range nor at the bottom. He felt that based on his client’s age, the fact that he pleaded guilty to the charges, has beenon bail with reporting and curfew conditions for the past three years without any breaches, that a sentence of 24 to 30 months would beappropriate. Mr. Piercey, Q.C. reminded me that his client will also be forfeiting his truck and a significant amount of cash. [8] Mr. Piercey, Q.C. felt that a DNA order is not mandatory for this offence and, under the circumstances, felt that it was notwarranted.

He did not take issue with the seizure of the drug related items or the Crown’s request for a firearms prohibition. Analysis [9] A “controlled substance” is defined in

section 2 of the Act as meaning a “substance included in

Schedule I, II, III, IV or V”. [10] The Accused admitted to police that he had Cocaine and Oxycodone in his possession for the purposes of trafficking. Qualitative analysis confirmed the nature of the drugs. The Cocaine was found to be 72% pure. The amount of each commodity (775grams of Cocaine and 208 Oxycodone pills) in themselves is sufficient to engage a presumption that the drugs were not intended forpersonal use. [11] Many of the sentencing precedents presented by both the Crown and Defence were cases that involved joint submissions.

Assuch, they are of limited value. [12] In reaching my decision on the appropriate sentence in this case, I have been guided by the objectives and principles ofsentencing as set out in

section 10 of the Act as well as sections 718, 718.1 and 718.2 of the Criminal Code, R.S.C. 1985, c. C-46. [13]

Section 10 of the Act requires me to consider aggravating the fact that the Accused carried weapons. In this case a can of bearspray, an extendable baton, a bat and a pellet handgun were found in the vehicle of the Accused. [14]

Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to foster respect for the law and themaintenance of a just, peaceful society. In order to reach this goal the Court must impose a sentence that meets one or more of thefollowing objectives: a. Denunciation; b. Deterrence of the offender and other persons; c. Separation of offenders from society, where necessary; d. Rehabilitation; e. Reparations for harm done to victims or to the community; and f.

The promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community. [15] The Supreme Court of Canada has instructed, in R. v. Nasogaluak, 2010 SCC 6, that none of the sentencing objectives takepriority over any of the others. Weight must be accorded to each of the objectives with a view to the unique circumstances of the casebefore the Court. [16] In R. v.

Ipelee, 2012 SCC 13, the Supreme Court of Canada stated that the fundamental principle of sentencing is that thesentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must befit. In this sense the sentence is both a sword and a shield. On the one hand the Public must be satisfied that the offender received thepunishment he deserved. On the other hand, the sentence cannot exceed what is appropriate.

A just sentence strikes a balance betweenthese two, sometimes competing, interests. [17] Courts are mandated to consider the sentencing principles outlined in

section 718.2 of the Criminal Code. As a result the Courtmust: a. Take into account any relevant aggravating or mitigating circumstances; b. Be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; c. Refrain from depriving liberty if less restrictive sanctions may be appropriate; and d. Consider all available sanctions other than imprisonment if those sanctions are reasonable. [18] The Court of Appeal, in R. v.

Kane, 2012 NLCA 53, stated at paragraph 13 that general deterrence and protection of the Publicare the paramount considerations in sentencing those engaged in Cocaine trafficking. Aggravating Factors [19] The aggravating factors in this case include the type, the amount and the value of the drugs seized. In R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 the Supreme Court of Canada referred to Cocaine trafficking as a “blight on society and everyeffort must be taken to eradicate it”. The same can be said of the possession of Oxycodone for the purposes of trafficking.

Bothsubstances are highly addictive and cause untold misery for those persons who develop a dependency. The ripple effects of thoseaddictions are daily felt by all of society – whether in the form of drug overdoses, robberies, break and enters, thefts and so on. [20] The Accused was in possession of a large amount of Cocaine and Oxycodone with a street value, by his own admission, ofalmost $90,000. And while I am not sentencing him for any matters other than those before me, I am mindful that the Accused was in

the business of dealing in drugs and that this was not an isolated incident. I am also mindful of the aggravating factor relating to thepossession of weapons in the Accused’s vehicle. [21] In R. v. Oates (1992), (NL CA), 100 Nfld. & P.E.I.R. 289, 74 C.C.C. (3d) 360 (Nfld. C.A.) a sentence of twoyears less a day was held by the Court of Appeal to be too lenient in light of the amount of drugs (412 grams of Cocaine) worth about$24,000. Goodridge, C.J.N. wrote that three and one-half to four years would have been more in keeping with the offence.

The offenderin that case was 27 years of age and had no previous convictions. [22] In R. v. Snow, 2006 NLTD 3, a 25-year old offender convicted for conspiracy to traffic in Cocaine and possession of 279 gramswith a value of $32,000 was sentenced to three and one-half years. [23] The quantity of drugs involved in this case is almost twice as much as in R. v. Oates and almost three times as much as R. v.Snow. In addition, we have Oxycodone involvement in this case – which was not a factor present in either R. v. Oates or R. v.

Snow. [24] There does not appear to be any prescriptive range of sentence in relation to possession for the purposes of trafficking Cocaine. Incarceration appears to be dependent, to some large extent, on the amount of drugs involved. The amount, and value, of the drugs inthis case do not fall at the low end of the range. [25] Mr. Piercey, Q.C. submitted a number of cases for the Court’s consideration. These included: • R. v. Klassen, 2011 NLTD(G) 100, a case in which the accused was a courier and there was no evidence of his involvement in thecommercialization of the drugs.

The case is distinguishable on that basis. • R. v. Brake, [2017] N.J. No. 300, 139 W.C.B. (2d) 605 (N.L. Prov. Ct) in which Judge Porter of the Provincial Court ofNewfoundland and Labrador imposed a sentence of two years less a day. The case is distinguishable on the basis that there was noevidence before the Court that the offence alleged was anything other than a one-time transaction. In Mr. Cuff’s case we have evidencethat he was in the business of buying and selling drugs as a principal. • In R. v. Snow, the accused was convicted of both conspiracy to traffic and possession for the purposes of trafficking.

He wassentenced to three and one-half years on each count. As noted earlier, there was 279.5 grams of Cocaine involved in Mr. Snow’s case,whereas there was 775 grams of Cocaine in the case of Mr. Cuff. A distinguishing factor is that Mr. Snow was convicted of conspiracyto traffic as well as possession for the purposes of trafficking. • In R. v. Pittman, 2018 NLSC 135, the accused was sentenced to two and one-half years. The sentence was based upon a jointsubmission and, therefore, has limited, and no precedential, value for the purposes of sentencing. • In R. v.

Parsons, 2015 NLTD(G) 180, a case of conspiracy to traffic in Cocaine, a sentence of 25 months was ordered. Goodridge,J. (as he then was) noted that the accused’s role was limited and that they were involved in a single transaction. The single transactionrelated to a 305.4 gram package of Cocaine. The Cocaine was of high purity, as is the case here, with a concentration level of 73%. Thistranslates into a high street value because the Cocaine can be mixed with adulterants – increasing the quantity available for sale. CONCLUSION [26] Under

section 487.051(3) of the Criminal Code, a DNA order is discretionary for this offence. The Accused has no criminalrecord. In consideration of his guilty plea and acknowledgement of responsibility for these offences from the outset, I decline to make aDNA order in this case. [27] Taking all of these factors into consideration I sentence the Accused as follows: a. For Count No. 1 – possession of Cocaine for the purposes of trafficking – 36 months incarceration; b. For Count No. 2 – possession of Oxycodone for the purposes of trafficking - 36 months incarceration, concurrent to Count No. 1; c. Pursuant to

section 16 of the Act, the Cocaine, Oxycodone, vehicle, money and any other offence-related property seized by thepolice shall be forfeited to Her Majesty the Queen in Right of Canada; d. A firearm prohibition is mandatory for offences relating to section 5(1) of the Act. An Order will be issued under section 109(1)(a)of the Criminal Code prohibiting the Accused from having possession of any firearm, ammunition or other item referred to in section109. The prohibition is effective immediately and shall continue for a period of 10 years after his release from imprisonment.

TheAccused shall immediately arrange surrender of any weapons or ammunition referenced in the Order and shall surrender any relatedauthorizations, licenses and registration certificates.

_____________________________ Vikas Khaladkar Justice