R. v. Patton, 2020 NLSC 118

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Patton , 2020 NLSC 118 Date : September 3, 2020 Docket : 201901G1215 Her Majesty The Queen v. james phillip patton Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 24 and 26, 2020; July 3, 2020 Date of Oral Judgment: September 3, 2020

Summary: The Offender entered guilty pleas to charges of trafficking in oxycodone, possession of cocaine, cannabis marijuana and cannabis resin for the purposes of trafficking. The Offender was jointly charged with his brother, however, the Offender was the principal drug dealer in a medium-level enterprise, and the co-Offender brother was a lower-level participant. The Offender was sentenced, after receiving 90 days credit for time served on remand, to serve an additional 810 days in custody.

Appearances: Elaine M. Reid Appearing on behalf of the Crown Stephen P. Orr Appearing on behalf of James Phillip Patton Authorities Cited: CASES CONSIDERED: R. v. Nasogaluak , 2010 SCC 6 ; R. v. Ipeelee , 2012 SCC 13 ; R. v. Kane , 2012 NLCA 53 ; R. v. Palmer , 2019 NLSC 175 ; R. v. Roper , 2019 NLSC 163 ; R. v. Cuff , 2019 NLSC 112 ; R. v. Hepditch , 2018 NLSC 55 ; R. v. Ivey , 2018 NLSC 58 ; R. v. Hillier (2015), 363 Nfld. & P.E.I.R. 88, 1129 A.P.R. 88 (N.L. Prov. Ct.) 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 ] James Phillip Patton has pleaded guilty to a number of drug related charges that emanated from activities undertaken by the Offender in the City of Mount Pearl, Newfoundland and Labrador, between October 1, 2017 and December 21, 2017. They include during that time period: a. Trafficking in oxycodone in contravention of sections 5(1) - 5(3) (

a) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (the “ Act ”). Oxycodone is listed as a

Schedule I drug - (Count 4). b. Possessing for the purpose of trafficking cocaine contrary to sections 5(2)-5(3)(

a) of the said Act . Cocaine is a

Schedule I drug - (Count 5). c. Possessing for the purpose of trafficking cannabis marijuana contrary to sections 5(2)-5(3)(

a) of the said Act . Cannabis marijuana is a

Schedule II drug - (Count 6). d. Possessing for the purpose of trafficking cannabis resin contrary to sections 5(2)-5(3)(

a) of the said Act . Cannabis resin is a

Schedule II drug - (Count 7). [ 2 ] I am satisfied that the conditions enumerated in section 606(1.1) of the Criminal Code , R.S.C. 1985, c. C-46 have been met. [ 3 ] An Agreed Statement of Facts was filed by counsel. Briefly, the facts are these: a. Police officers commenced investigation into the Offender’s activities in December, 2017. Surveillance of the Offender and his co- Offender gave rise to the conclusion that their activities were consistent with drug trafficking.

Surveillance continued, for a time, at the residences of both of the Offenders and, ultimately, a search warrant was obtained in relation to each of their residences. b. Upon entering the Offenders’ residence pursuant to the warrant, officers discovered four firearms secured by trigger locks resting against a bedroom wall together with ammunition. Also found was a dagger. c. The following drugs were located in the Offender’s residence: i. 1230 grams of cannabis resin; ii. 500 grams of cannabis marijuana; iii. 630 grams of cocaine; d. The following drug paraphernalia was also found and seized:

i. Digital scales; ii. Cellular telephones. [ 4 ] James Phillip Patton was arrested on December 21, 2017 at his residence. After receiving his rights to counsel and police caution he contacted a lawyer. He spent the night in custody. [ 5 ] Examination of the cellular telephones yielded evidence of trafficking in cannabis marijuana, cannabis resin, cocaine and oxycodone. [ 6 ] An expert opinion was filed, as part of the Agreed Statement of Facts, outlining the quantity and value of drugs seized from Joshua David Patton and his co-Offender, James Phillip Patton, in two separate residences as follows: a.

The amount of cocaine seized would be a 315 day supply for a heavy user. Its street value would be $25,000 if sold in bulk and $63,100 if sold in grams. b. The amount of cannabis marijuana seized would satisfy the needs of a heavy user for 2.4 years. The shelf life of the cannabis marijuana is about six months – after which it loses its potency. The wholesale value of the cannabis marijuana would be $9,800 but that value would escalate to $35,040 if sold at the gram level. c. The amount of cannabis resin seized would satisfy the needs of a heavy user for 1.3 years. It, also, loses its potency after six months.

Its wholesale value is $7000 if sold at the kilogram level, but $23,250 if sold at the gram level. d. The trafficking in oxycodone was established through the cellular phone records of the Offender. e. I am mindful of the fact that a more significant amount of the value of the contraband drugs is attributable to this Offender. The value of the drugs in question was estimated to be between $41,800 and $121,240 depending upon whether or not it was sold on a wholesale basis or at the street level.

This is tantamount to a middle order level of enterprise. [ 7 ] The presence of digital scales, cellular telephones, weapons and evidence of trafficking activity garnered from the cellphones all point to a drug trafficking enterprise. The Offender has readily admitted that he engaged in that activity by entering guilty pleas. [ 8 ] Based on these facts I accept the Offender’s guilty pleas and convictions will be entered in respect of each of the Counts to which he has pleaded guilty. The balance of the drug related charges against him have been withdrawn by the Crown.

Crown’s Position on Sentencing [ 9 ] The Crown, represented by Ms. Elaine Reid, stated the maximum period of incarceration for these offences is life. There is no minimum sentence. Ms. Reid took the position that James Phillip Patton was more culpable than his co-Offender. While the two brothers were operating a drug selling enterprise, Joshua David Patton was engaged in selling smaller amounts of drugs obtained from his brother James Phillip Patton. Ms. Reid requested a period of incarceration of 30-36 months for James Phillip Patton.

The Crown is also seeking forfeiture of all items seized and a firearms prohibition. Defence’s Position on Sentencing [ 10 ] James Phillip Patton is 31 years of age. He has a minor, dated (2009), record of convictions unrelated to the present charges. He was convicted of two breaches of undertaking in 2020 and was sentenced to 14 days of pre-sentence custody. A pre-sentence report was ordered in relation to the Offender, and the following factors are noteworthy: a. The Offender was abandoned by his biological father early in life.

The Offender tracked him down at one point, but his biological father wanted no contact. He was raised by his mother and step-father until he was 12 years of age – at which time his biological mother abandoned the family. He and his co-Offender were then sent to live with his biological mother’s step-father and mother in Mount Pearl, Newfoundland and Labrador. The step-grandfather was an alcoholic and abused the grandmother - who eventually also abandoned the family and moved to Ontario.

The Offender’s brother was placed in a group home but the Offender managed to have him moved to a friend’s mother’s home until he could assume legal guardianship. b. Upon becoming his brother’s guardian the two boys had to support themselves with odd jobs, child tax benefit payments and monies provided to them, from time to time, by their grandmother. c. The Offender has been in a relationship with his current partner since high school. They began cohabiting in 2014 and twins were born to them on March 21, 2020.

The Offender’s mother-in-law reported that the birth of the twins has “grounded” the Offender and that spends a great deal of time with his family. In her estimation, the couple appear to be doing well. She reported that the Offender was ashamed of what he had done and cried when he reported to them the matters that he was charged with. She says that she has never seen the Offender under the influence of alcohol or drugs. d. To his credit, the Offender has obtained his GED. He is reported to be a hard worker and has an offer of employment with a local home builder upon his release.

He was described to the writer of the pre-sentence report as a conscientious, reliable and professional employee. [ 11 ] Mr. Orr relied upon the cases that were tendered by the Crown and acknowledged that an appropriate range of sentence in his client’s case would be between two to five years. He asked the Court to consider a sentence at the lower end of that range.

[ 12 ] Mr. Orr did not take issue with the seizure of the drug related items or the Crown’s request for a firearms prohibition. Analysis [ 13 ] A “controlled substance” is defined in

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

Schedule I, II, III, IV or V”. [ 14 ] In reaching my decision on the appropriate sentence in this case, I have been guided by the objectives and principles of sentencing as set out in

section 10 of the Act as well as sections 718 , 718.1 and 718.2 of the Criminal Code . [ 15 ]

Section 718 of the Criminal Code outlines that the fundamental purpose of sentencing is to foster respect for the law and the maintenance of a just, peaceful society. In order to reach this goal the Court must impose a sentence that meets one or more of the following 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. [ 16 ] The Supreme Court of Canada has instructed, in R. v. Nasogaluak , 2010 SCC 6 , that none of the sentencing objectives take priority over any of the others. Weight must be accorded to each of the objectives with a view to the unique circumstances of the case before the Court. [ 17 ] In R. v.

Ipeelee , 2012 SCC 13 , the Supreme Court of Canada stated that the fundamental principle of sentencing is that the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender. The sentence must be fit. 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 the punishment he deserved. On the other hand, the sentence cannot exceed what is appropriate.

A just sentence strikes a balance between these two, sometimes competing, interests. [ 18 ] Courts are mandated to consider the sentencing principles outlined in

section 718.2 of the Criminal Code . As a result the Court must: 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. [ 19 ] The Court of Appeal, in R. v.

Kane , 2012 NLCA 53 , stated at paragraph 13 that general deterrence and protection of the Public are the paramount considerations in sentencing those engaged in trafficking drugs such as cocaine. Aggravating Factors [ 20 ] James Phillip Patton was the leader of the drug enterprise. It appears that Joshua obtained drugs from his brother James and, then, proceeded to make smaller sales to his customers. Joshua’s participation was at the lower level. [ 21 ] I am mindful that the Offender was in the business of dealing in drugs and that this was not an isolated incident. [ 22 ]

Section 10 of the Act requires me to consider aggravating the fact that the Offender was in possession of weapons. In this case a dagger and four firearms were found in the dwelling of the Offender. Even though the firearms were properly stored with trigger guards in place, the fact that they were present at all in a place where drug deals were being conducted is an aggravating factor. It is commonly known that drug dealers arm themselves owing to the nature of their business. This creates the potential for violent confrontations,

including the loss of life. crown submissions on the law [ 23 ] In R. v. Palmer , 2019 NLSC 175 , I sentenced the offender to 24 months incarceration for possession of morphine for the purposes of trafficking and trafficking in cocaine and oxycodone. Mr. Palmer was acting in the capacity of a chauffeur for the ringleader of the enterprise. The Palmer case did not involve cannabis. There were 775 grams of cocaine and 208 oxycodone pills. Mr. Palmer’s participation was at a lower level than that of the Offender in this case because Mr. Palmer was merely chauffeuring his co-offender from one location to another.

Here James Phillip Patton was involved in the wholesale and retail sale of a variety of drugs. [ 24 ] In R. v. Roper , 2019 NLSC 163 , McGrath J. sentenced a 30-year old offender with three young children to 42 months for possession of cocaine for the purposes of trafficking, 24 months for possession of oxycodone for the purposes of trafficking and 24 months for possession of proceeds of crime. The sentences were ordered to be served concurrently on account of the principle of totality.

Mitigating factors included a guilty plea, the assumption of a lesser role in the offences, a short duration in the criminal enterprise and an expression of genuine remorse. The police seized 10.5 kilograms of cocaine and 417 20mg oxycodone pills. The Offenders’ residences contained $229,000 in cash and a further $29,000 in cash was found in the vehicle that they had been using. This case, also, is distinguishable on the facts. The amounts involved are considerably higher in Roper than the instant case. [ 25 ] In R. v.

Cuff , 2019 NLSC 112 , I sentenced the offender to 36 months incarceration for possession of cocaine for the purposes of trafficking and 36 months concurrent for the possession of oxycodone for the purposes of trafficking. There was evidence that Mr. Cuff was involved in a series of transactions and was transporting the drugs for resale from St. John’s, where they were purchased, to Glenwood, where he was resident. As indicated in paragraph [23] above, Mr. Cuff was found in possession of 775 grams of cocaine and 208 oxycodone pills.

The case is comparable based upon the amount of drugs involved – the quantity is about the same in Cuff as it is in the instant case. Mr. Cuff’s participation was also at an analogous level to that of the Offender in this case. [ 26 ] In R. v. Hepditch , 2018 NLSC 55 , Chaytor, J. sentenced the offender to 16 months incarceration for possession of 42 oxycodone tablets, $670.65 in cash and a small amount of cannabis marijuana.

He was also sentenced to 16 months concurrent for two counts of trafficking in oxycodone (he had sold a few tablets to two different customers) and a suspended sentence with respect to a charge of possession of cannabis marijuana. Mr. Hepditch had a long criminal record dating back to 1989. He had amassed 39 convictions for breaches of Court orders and was bound by three probation Orders at the time of his conviction. This resulted in sentences of six months for each breach served concurrently to one another, but served consecutively to the other predicate offences.

In the result, the offender was sentenced to 22 months incarceration. The amount of oxycodone that was found in the joint possession of the Patton brothers is roughly analogous to the amount of oxycodone found in the possession of the offender in Hepditch . To that extent, the decision in Hepditch is instructive. In this case the Offender was in possession of a much larger quantity of cannabis marijuana, and there were additional drugs involved, namely cocaine and cannabis resin. [ 27 ] The Crown also relied on R. v. Ivey , 2018 NLSC 58 .

In that case the offender was found in possession of 25 oxycodone pills along with 37 clonazepam, 57 temazepam and 37 seroquel tablets. Stack, J. found that the offender was a small scale dealer in drugs. Mr. Ivey was sentenced to 16 months imprisonment on account of the trafficking in oxycodone. All other sentences were made concurrent to the oxycodone offence. The case can be distinguished from the instant case because of the lower quantities of drugs involved in the Ivey case. [ 28 ] In R. v. Hillier (2015), 363 Nfld. & P.E.I.R. 88, 1129 A.P.R. 88 (N.L. Prov.

Ct.) , the offender was convicted of possession of less than 3kg of cannabis marijuana for the purposes of trafficking, as well as trafficking in cocaine. He was also in possession of prohibited weapons. The offender was characterized as a low-level dealer of cannabis marijuana, but a mid-level dealer of cocaine. This was based upon extrinsic evidence of transactions obtained from cellphone records and deciphered by Staff Sergeant Conahan – who was declared an expert witness in the illicit drug trade. Mr.

Hillier was sentenced to 720 days in custody for trafficking in cocaine and received a three month concurrent sentence for trafficking not in excess of 3kg of cannabis marijuana. The sentence with respect to trafficking in cannabis marijuana is instructive in the instant case. defence submissions on the law [ 29 ] Mr. Orr relied upon the cases submitted by the Crown. He acknowledged that the range of sentencing was two to five years. He asked, on behalf of the Offender, that the Court consider a sentence at the lower end of the range on account of his client’s circumstances.

He pointed to the fact of a guilty plea, the Offender’s contriteness and the hard life that he has led. He indicated that the Offender is now stable, has two new babies and he is seriously attached to his partner. He is capable of being gainfully employed and has an employer who is aware of his circumstances, but is nevertheless willing to give him a chance to work when he is released from incarceration. Mr. Orr indicated that the Offender’s record is dated and unrelated. analysis (continued) [ 30 ] The Offender is 31 years of age. He has a limited and dated criminal record. He has twin children born in 2020.

He has good prospects for employment upon his release from prison. He seems remorseful and ashamed of his behavior. [ 31 ] The Offender will have been in remand for two months on the date of his sentencing. Under the circumstances he will receive credit for his 60 days in custody awaiting disposition at the rate of 1.5 days to each day actually served on remand. This is equivalent to 90 days of credit. [ 32 ] Engaging in the sale of

Schedule I and II drugs adds to the untold misery inflicted on members of society – be they drug addicts or victims of crime deleteriously affected by the illicit trade in drugs. Denunciation, general and specific deterrence therefore loom large when arriving at an appropriate sentencing disposition. Those factors must, however, be tempered by other factors such as the Offender’s level of involvement, his antecedents and his prospects for rehabilitation. I have taken all of these factors into account in arriving at my decision on sentencing.

[ 33 ] I view all of the charges against this Offender as belonging to one criminal enterprise. He was a mid-level drug dealer and most of the illicit drugs forming the subject matter of the charges against him, as well as the seized firearms, were located in his residence at the same time. It is appropriate, therefore, that all of the counts be treated as belonging to one transaction and that concurrent sentences be imposed in respect of same. CONCLUSION [ 34 ] Under

section 487.051(3) of the Criminal Code , a DNA order is discretionary for this offence. The Offender has a dated criminal record. Due to the Offender’s level of involvement in the drug trafficking industry, I think it appropriate that he provide such samples of his DNA as may be required. I order, therefore, that suitable samples be provided as and when demanded by the police. [ 35 ] Taking all of these factors into consideration I sentence the Offender as follows: a. For Count No. 4 - trafficking in oxycodone - 730 days incarceration concurrent to other sentences imposed; b.

For Count No. 5 - possession of cocaine for the purposes of trafficking - 900 days incarceration concurrent to other sentences imposed; c. For Count No. 6 - possession of cannabis marijuana for the purpose of trafficking - 365days incarceration concurrent to other sentences imposed; d. For Count No. 7 - possession of cannabis marijuana for the purpose of trafficking - 365 days incarceration; e. As mentioned earlier, I credit the Offender with 90 days on account of time served by him on remand, leaving him to serve an additional 810 days in custody. f.

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 Offender from having possession of any firearm, ammunition or other item referred to in

section 109. The prohibition is effective immediately and shall continue for a period of 10 years after his release from imprisonment. The Offender shall immediately arrange surrender of any weapons or ammunition referenced in the Order and shall surrender any related authorizations, licenses and registration certificates. g. I have been requested to make an Order of forfeiture, an Order relinquishing claim in the property seized from his co-Offender, and an Order for the return of certain items. The Offender, through his Counsel, has agreed to the form and content of those Orders.

I have executed the Orders and copies may be retrieved from the Court file by the Crown as required. h. Victim Fine Surcharges are waived. _____________________________ Vikas Khaladkar Justice