R v Sass; R v Zammit, 2018 MBCA 46

Citation: R v Sass; R v Zammit, 2018 MBCA 46 Date: 20180413 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella Docket: AR17-30-08853 ) BETWEEN : ) ) HER MAJESTY THE QUEEN ) J. A. Hyman and ) A. M. Parashin Appellant ) for the Appellant ) - and - ) ) trenten lee sass ) M. P. Cook ) for the Respondent Trenten (Accused) Respondent ) Lee Sass ) - and - ) ) Docket: AR17-30-08795 ) B. S.

Newman BETWEEN : ) for the Respondent Cole ) Alexander Paul Zammit her majesty the queen ) ) Appellant ) ) Appeals heard and - and - ) Decision pronounced: ) April 13 , 2018 cole alexander paul zammit ) ) (Accused) Respondent ) MAINELLA JA (for the Court): Introduction [ 1 ] In these two sentence appeals, the Crown sought leave to appeal and, if granted, appealed suspended sentences, to be followed by two years’ supervised probation, for accused involved in street-level trafficking in cocaine.

The reasonableness of the judges’ application of the principle of “exceptional circumstances” was the key issue in both appeals. [ 2 ] Trafficking in a controlled substance included in

Schedule I of the Controlled Drugs and Substances Act , SC 1996, c 19 (the CDSA ), is a serious offence punishable by a sentence of up to life imprisonment.

Given the deleterious effects of cocaine and other “hard” drugs to both users and society, in order to ensure respect for the law, protect the public and acknowledge the harm caused by trafficking, the position of this Court is, as is the case in other provinces, that drug traffickers should receive a term of imprisonment absent “exceptional circumstances” ( R v Dew , 1998 CarswellMan 467 at para 5 (CA) , leave to appeal to SCC refused, [1998] SCCA No 591; and R v Voong , 2015 BCCA 285 at para 1 ; see also R v Oickle , 2015 NSCA 87 at paras 30-32 ). [ 3 ] This Court has addressed the sentencing principle of “exceptional circumstances” many times recently (see R v Henderson , 2012 MBCA 9 ; R v Peters , 2015 MBCA 119 ; R v Tran (A) , 2015 MBCA 120 ; R v Racca , 2015 MBCA 121 ; R v Gurske , 2017 MBCA 46 ; and R v Burnett , 2017 MBCA 122 ). [ 4 ] As a general rule, the objectives of “denunciation and deterrence are the paramount considerations when sentencing offenders trafficking in hard drugs” ( R v Grant (IM) , 2009 MBCA 9 at para 108 , leave to appeal to SCC refused, 33065 (11 June, 2009); and Racca at para 13 ); however, in “appropriate circumstances”, sentences may also be designed to encourage rehabilitation and treatment of drug offenders ( section 10(1) of the CDSA ).

[ 5 ] The range of sentence in Manitoba for street-level commercial trafficking in small quantities of cocaine (typically packaged in amounts for distribution of less than one ounce) is between 12 months’ imprisonment to significant penitentiary terms, even for first offenders (see R v Gilchrist , 2004 MBCA 21 at paras 26-27 ; R v Stebeleski and Santangelo , 2007 MBCA 1 at para 19 ; R v Murphy (MP) , 2011 MBCA 84 at para 16 ; R v Kunicki , 2014 MBCA 22 at para 28 ; and Tran at para 30 ).

This range is a “sentencing tool” for judges to assist them in, but not fetter, their exercise of judicial discretion to impose an individualized sentence in light of the circumstances and the relevant sentencing principles and objectives ( Burnett at para 10 ). [ 6 ] The Crown said the sentences in the two cases were unfit and should be varied to terms of imprisonment. It argued that exceptional circumstances did not exist in either case and the judges erred in principle by over-emphasizing rehabilitation in instances of high moral blameworthiness.

It submitted that in neither case was there evidence of substantial rehabilitation between arrest and sentencing such that it would be counterproductive to impose a term of imprisonment.

Finally, in the case of R v Sass, the Crown also argued that the judge ignored a previous conviction for a drug-trafficking offence despite the requirements of the CDSA . [ 7 ] Both accused argued that, given the “considerable discretion” sentencing judges enjoy to impose individualized sentences, “great deference” is owed on appeal of the decision to impose a non-custodial sentence for commercial trafficking in cocaine because of exceptional circumstances (see R v LM , 2008 SCC 31 at paras 14 , 17; R v Lacasse , 2015 SCC 64 ; Tran at para 13 ; R v Houle , 2016 MBCA 121 at para 11 ; and Burnett at para 31 ).

Each accused said that it was reasonably open to the presiding judge to find exceptional circumstances and impose a suspended sentence in each of their cases. [ 8 ] After hearing the appeals, leave to appeal was granted in both appeals, the appeals were allowed and the sentences of both accused were varied to terms of imprisonment with reasons to follow. These are those reasons. Discussion— R v Sass [ 9 ] Mr. Sass did not appear for his appeal despite knowing of the hearing date. Counsel was prepared to proceed in his absence and we agreed that it was appropriate to do so (see

section 688 of the Criminal Code ). [ 10 ] By way of background, on January 21, 2016, Mr. Sass was arrested in Steinbach, Manitoba during the execution of a search warrant on his residence. He was found in possession of five one-gram baggies of powder cocaine and $1,500 in cash in his wallet. He pleaded guilty to possession of cocaine for the purpose of trafficking (see section 5(2) of the CDSA ). [ 11 ] At the time of the offence, Mr. Sass was 25 years old and single with no dependents.

He had a minor criminal record that included a conviction on June 13, 2013, for possession of cocaine for the purpose of trafficking for which he received a 12-month conditional sentence. [ 12 ] The pre-sentence report indicated that Mr. Sass was remorseful. He had a challenging upbringing because of dislocation caused by frequent moving, foster care for a brief period, domestic violence in the household (including against him) and growing up in poverty. He did not complete high school. He was abusing drugs and alcohol when he was arrested.

In the period between his arrest and his sentencing on May 26, 2017, he took no counselling or treatment for substance abuse. He told the probation officer he normally sold to only two or three people. He was assessed as a “high risk to re-offend.” [ 13 ] In his reasons, the judge acknowledged that, in the circumstances, Mr. Sass was looking at a sentence of high provincial time or a penitentiary sentence absent exceptional circumstances. The factors the judge relied on to impose a suspended sentence were the traumatic upbringing, family support and rehabilitation efforts taken since arrest.

The judge stated that it was “debatable” whether those efforts could be described as substantial but included employment at a restaurant and a meat-processing plant, staying away from some negative peers and not using cocaine. [ 14 ] In our view, this case was not an unusual case of exceptional circumstances that could reasonably warrant a non- custodial sentence. [ 15 ] There was nothing atypical in the way in which the offence was committed to significantly reduce Mr. Sass’s high moral culpability (see Burnett at para 28 ).

He was caught with drugs packaged for sale, along with illicit profits from past dealings. While not sophisticated or organised, the low-level drug trafficking was commercial. [ 16 ] The personal circumstances of Mr. Sass identified are also not unusual (see Burnett at para 28 ). Family support for an offender is common. The traumatic upbringing, while unfortunate, is not of such peculiarity when considered with his family support. Moreover, the judge was not prepared to conclude that Mr.

Sass had demonstrated substantial rehabilitation by turning his life around since his arrest despite making some efforts in that path (see Tran at para 27 ; and R v Kurdydyk , 2017 MBQB 2 at para 15 ). [ 17 ] Importantly, the judge made no mention in his reasons of the prior related record for a drug-trafficking offence.

Counsel conceded that, from the record, it was impossible to discern why the judge did not refer to the prior conviction as the issue was argued before him. [ 18 ] The CDSA obligated the judge to treat the prior drug-trafficking conviction as an aggravating factor in determining sentence and further required him to provide reasons why he did not sentence Mr. Sass to imprisonment on the current offence despite that prior conviction (see sections 10(2) (b), 10(3) of the CDSA ).

The effect of these provisions is to underscore that, while alternative sentences are not foreclosed, Parliament’s “preference” is for a term of imprisonment where the aggravating feature of a previous conviction for drug trafficking is present ( R v Godbout , 2015 BCCA 168 at para 18 ).

The judge’s reasons were not adequate given his statutory obligations. [ 19 ] In light of the circumstances of the offence and the offender, in our view, the judge overemphasized the principle of rehabilitation at the expense of the principles of deterrence (both general and specific) and denunciation (see Racca at para 14 ; and Burnett at para 34 ). We were satisfied that the consequence of the error affected the sentence imposed in more than just an incidental way (see Lacasse at para 44 ).

[ 20 ] Accordingly, it was necessary to re-sentence Mr. Sass. Taking into consideration all of the circumstances, the aggravating and mitigating factors, the relevant sentencing objectives and principles, and the judge’s inclination to show leniency to Mr. Sass, a sentence of 15 months’ imprisonment would be fit. [ 21 ] The Crown did not move to suspend the operation of the probation order pending the appeal (see section 683(5) (

e) of the Criminal Code ). No information was put before us suggesting non-compliance with the conditions of Mr. Sass’s probation pending appeal; we therefore gave him the benefit of the doubt in that regard. Counsel was unable to confirm if any of the 50 hours of community service had been performed. Accordingly, we adjusted the 15-month custodial sentence to take into account that he had been the subject of some restrictive conditions, without apparent incident, for almost a year.

His sentence will therefore be one of 12 months’ imprisonment on a go-forward basis from the date he turns himself in to the authorities (a warrant of committal having been issued). [ 22 ] Finally, we considered whether it would serve the ends of justice to incarcerate Mr. Sass despite the passage of time of approximately 11 months since he was sentenced (see Burnett at para 38 ). Counsel for Mr. Sass conceded it was appropriate to incarcerate Mr. Sass if his sentence was varied to a term of imprisonment in light of the circumstances. We agreed.

Discussion— R v Zammit [ 23 ] The facts in the case of R v Zammit are as follows. Police conducted an undercover operation between November 2015 and April 2016, targeting five individuals, including Mr. Zammit, believed to be engaged in street-level trafficking of cocaine out of a bar in the town of Oakbank, Manitoba. [ 24 ] On April 21, 2016, the undercover officer met at the bar with one of the targets, K. H. The two agreed to a deal for two grams of cocaine for $200 with the delivery to occur later that day in Winnipeg because the drugs were with K. H.’s supplier. K.

H. provided the undercover officer with a mobile phone number with which to communicate. At the pre-arranged time and place, K. H. arrived in a vehicle driven by another target, D. H. Mr. Zammit was also in the vehicle. [ 25 ] Mr. Zammit exited the vehicle and approached the undercover officer and confirmed whether he was a friend of “Paul” (one of the targets of the investigation from whom the undercover officer had previously purchased cocaine). The undercover officer said he was and then Mr. Zammit provided the officer with two grams of powder cocaine in exchange for $200. [ 26 ] On April 28, 2016, Mr.

Zammit sent a text message to the undercover officer, asking him to meet at the bar in Oakbank. Mr. Zammit arrived at the bar in a vehicle driven by D. H. The undercover officer and Mr. Zammit discussed another sale of cocaine after which the undercover officer paid Mr. Zammit $200 and received two grams of powder cocaine. The undercover officer asked Mr. Zammit if there was any more cocaine. Mr. Zammit then asked D. H. if he had any more cocaine to sell to the undercover officer. D. H. said he did but had to get some gas for his vehicle first. [ 27 ] One hour later, Mr. Zammit and D.

H. returned to the parking lot of the bar to meet the undercover officer. Mr. Zammit and the undercover officer entered into discussions on another sale of cocaine. The undercover officer paid Mr. Zammit $100 for 1.4 grams of powder cocaine. Mr. Zammit told the undercover officer he was “giving him a deal.” [ 28 ] Subsequently, on three separate occasions, Mr. Zammit sent text messages to the undercover officer, offering more sales of cocaine, which the officer declined. [ 29 ] Mr. Zammit was arrested on May 4, 2016.

He subsequently pleaded guilty to one count of trafficking in cocaine (see section 5(1) of the CDSA ), covering all three sales, and was sentenced on March 13, 2017. At the time of the offence, Mr. Zammit was 20 years old and single with no dependents. He had no criminal record. [ 30 ] According to the pre-sentence report, Mr. Zammit was remorseful. His parents had an acrimonious divorce when he was a child which has affected him. A traumatic incident involving a girlfriend occurred in high school which required him to transfer schools and take counselling. He completed high school and began working.

He was employed first as a labourer and then as an apprentice trade insulator until September 2015 when he was laid off due to lack of work. He let his union dues lapse preventing his rehiring when work was available. Former employers indicated he was a reliable worker whom they would rehire. Between September 2015 and March 2017, he was unemployed. He has strong family support. He suffers from anxiety for which he takes prescribed medicine. He does not have any drug or alcohol-use problems.

Pending his sentencing, he did not take any counselling (although he expressed an interest in seeing a psychiatrist due to depression from the court proceedings) and did little in the way of organised activities, education or skills training. He was assessed as a “[m]edium risk to re-offend.” [ 31 ] At the sentencing hearing, Mr. Zammit disputed the Crown’s suggestion that he was motivated by greed to traffic in cocaine.

Through counsel, he provided the explanation that he engaged in drug trafficking only to fit in with the wrong crowd and, in order to impress and appease these friends, because of low self-esteem, he trafficked in cocaine. [ 32 ] In her reasons, the judge acknowledged that “there has to be exceptional circumstances in order to not send [Mr. Zammit] to jail” for trafficking in cocaine. The judge identified that some of the circumstances she needed to consider were family support, his parents’ divorce and the dislocation of changing high schools due to the trauma with his ex-girlfriend.

In her view, these circumstances, while relevant, were not “that significant” in comparison to other offenders. [ 33 ] The judge identified three other factors as being “significant” to her finding of exceptional circumstances: the lack of prior record, being on judicial interim release without incident for just over 10 months, and reduced moral culpability for the offence given the trafficking was not for profit but to get some confidence from a bad crowd. [ 34 ] In our view, there were two errors in principle with the analysis of the judge as to the principle of exceptional circumstances that affected the sentence imposed in more than just an incidental way (see Lacasse at para 44 ). [ 35 ] The first error was how the judge dealt with the absence of evidence of profit as the motive to engage in drug

trafficking. This is important because the other two significant factors the judge identified, when taken in combination with Mr.Zammit’s background, could not reasonably support a finding of exceptional circumstances. Absent the motive issue, there is nothingunusual or uncommon about Mr. Zammit’s case. [36] To begin, given the wording of sections 723(5) and 724(3) of the Criminal Code, in our view, it was open to the judgeto accept and rely on the hearsay evidence provided to her during defence counsel’s submissions that Mr.

Zammit did not profit from thetransactions, although it is equally clear she was not required to rely on the hearsay, and another judge might have concluded that theonly reasonable inference on the record was that Mr. Zammit’s motivation to sell cocaine was to personally profit (see R v Ducharme,2012 MBCA 35 at paras 5-6; and Kunicki at para 25). Our concern was not her factual finding but what she overlooked when she usedthat finding to sentence Mr. Zammit. [37] Counsel for Mr.

Zammit agreed that the Crown proved beyond a reasonable doubt the aggravating fact ofcommercialism given the organised group’s activities. It was also conceded that Mr. Zammit was not the subject of significant predatoryexploitation by others based on serious personal frailties (see R v Datt, 2014 BCCA 484). He sold cocaine based on his own free willwithout pressure, influence or apparently financial desperation. [38] The judge stated that Mr.

Zammit’s moral culpability was “high” but “not as high as perhaps some individuals thatcome before the court with respect to these matters.” That is accurate but does not explain why, having found high moral culpability, aproportionate sentence required the “dramatic” result of not imposing a sentence-emphasizing punishment (Burnett at para 27). [39] In assessing the relevance of the non-profit motive on the issue of moral culpability, the judge was required to considernot just the normative nature of Mr. Zammit not being a greedy drug dealer as the Crown suggested. Her inquiry could not end there.

The assessment of moral culpability also required the judge to consider that Mr. Zammit’s intentional risk-taking was significant andassisted others to personally profit. Moreover, the consequential harm of his actions facilitated the organised group to continuetrafficking in cocaine on an ongoing basis to the detriment of the community (see R v M (CA), (SCC), [1996] 1 SCR500 at para 80). [40] Because Mr.

Zammit was a willing participant in ongoing and organised commercial drug trafficking in more than aminimal way and his actions have serious consequences, it is difficult to see how the objectives of denunciation and deterrence are ofless importance in arriving at a proportionate sentence. It is not uncommon or unusual in organised drug-trafficking rings for manypeople to do necessary and risky acts, with little identifiable benefit, so that a few can handsomely profit. [41] The other material error of the judge was conflating ‘“sympathetic circumstances” with “exceptional circumstances”(Burnett at para 33).

The judge did not conclude that Mr. Zammit had demonstrated rehabilitation over a period of time and turned hislife around in the 10 months since his arrest (see Peters at paras 28-29; Tran at para 27; and Racca at para 15). Rather, she found that,because Mr. Zammit was youthful, she had “hope that there are prospects for rehabilitation”. These prospects of rehabilitation wereappropriate for the judge to show leniency but insufficient to reasonably support a finding of exceptional circumstances. The record isclear that, in the approximately 10 months between arrest and sentencing, Mr.

Zammit took little, if any, steps demonstrating hisrehabilitation. [42] Accordingly, because of these errors in principle, it was necessary to re-sentence Mr. Zammit. We noted that co-accused from the same police operation received sentences in the range discussed in Gilchrist for street-level trafficking in cocaine.

Wewere not provided with the transcripts of these sentencing hearings, which is the preferred practice to address parity arguments involvingthe same police operation, but we were told that all of the cases were resolved by joint recommendations and some of the co-accusedwere older or had prior criminal records. In the circumstances, parity is not a significant factor to sentence Mr. Zammit. [43] Taking into consideration all of the circumstances, the aggravating and mitigating factors, the relevant sentencingobjectives and principles, and the judge’s inclination to show leniency to Mr.

Zammit, a sentence of 12 months’ imprisonment would befit. [44] The Crown did not move to suspend the operation of the probation order pending appeal. By agreement, we havereceived a report from Mr. Zammit’s probation officer that Mr. Zammit has complied with all of the conditions of his probation and hasalso taken counselling. Counsel also has confirmed that Mr. Zammit has completed all of the 100 hours of his community service workthat were ordered by the judge. Accordingly, he is entitled to a more generous adjustment to his 12-month term of imprisonment than inR v Sass. Mr.

Zammit’s sentence is six months’ imprisonment on a go-forward basis. [45] Finally, we addressed whether it will serve the ends of justice to incarcerate Mr. Zammit despite the passage ofapproximately 13 months since he was sentenced (see Burnett at para 38). In our view, it was not appropriate that he now beincarcerated based on a cumulative consideration of the relevant circumstances. [46] While the offence is serious, the level of trafficking here was at the street level and Mr. Zammit’s role in the hierarchyof the group was towards the bottom as opposed to the top.

There has been delay in these proceedings attributable to the lateness of Mr.Zammit’s retaining counsel for the appeal; however, it is not inordinate and the Crown wished this appeal to be heard along with R vSass because of the common issue. There was also evidence before us by agreement that, since being sentenced, Mr. Zammit hasprogressed significantly on his rehabilitative path. He has a job as a long-distance truck driver. The reference letter from his employerwas positive of Mr. Zammit’s work performance and also confirmed his current peer group is a positive one.

He has also settled downin his personal life. He has a girlfriend with a young son to whom he has been a positive influence. Incarceration would unreasonablyimpact his livelihood and compromise his prospects for rehabilitation. In these circumstances, the principle of restraint has addedsignificance given his lack of prior record. [47] In our view, the errors identified can be corrected while still doing individualized justice to Mr. Zammit given hispresent circumstances. Therefore, his remaining term of imprisonment was permanently stayed. Dispositions

[ 48 ] Leave to appeal was granted in both appeals. [ 49 ] In the case of R v Sass , the Crown’s appeal was allowed, Mr. Sass’s suspended sentence was set aside and a sentence of 15 months’ imprisonment was substituted. Taking into account the time already spent on probation pending appeal, Mr. Sass will serve 12 months’ imprisonment on a go-forward basis from the date he turns himself in. A warrant for his committal will issue and he is to turn himself in to custody forthwith.

The ancillary orders imposed on the date of the original sentence remain. [ 50 ] In the case of R v Zammit , the Crown’s appeal was allowed, Mr. Zammit’s suspended sentence was set aside and a sentence of 12 months’ imprisonment was substituted. Taking into account the time already spent on probation pending appeal and the completion of all of his 100 hours of community service, Mr. Zammit will serve six months’ imprisonment on a go-forward basis, which was permanently stayed. The ancillary orders imposed on the date of the original sentence remain. JA JA JA