R. v. Burke, 2016 NSSC 174

SUPREME COURT OF Nova Scotia Citation: R. v. Burke , 2016 NSSC 174 Date: 2016-06-30 Docket: Pictou , No. Registry: Pictou Between: Her Majesty the Queen v. Christian Stanton Burke Judge: The Honourable Justice N.

M. (Nick) Scaravelli Heard: June 30th, 2016, in Pictou, Nova Scotia Counsel: Bronwyn Duffy, for the Federal Crown Bill Gorman for the Provincial Crown Douglas Lloy, for Christian Stanton Burke Orally By the Court: [ 1 ] Christian Burke appears for sentencing having entered guilty pleas for possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, and on the same date, being in possession of a shotgun, without a license, contrary to section 91(1) of the Criminal Code . [ 2 ] The facts as detailed by the crown are summarized as follows: On August 18 th , 2015 the RCMP, acting on a call to the detachment, stopped a vehicle operated by the offender in the area of Greenhill, Pictou County.

A rifle, later determined to be a 12 gauge shotgun was observed on the floor of the vehicle behind the front seat. Shotgun shells were also located in a gun case on the floor. A subsequent search of a knapsack revealed what was described as two large white power stones later identified as 2 grams of cocaine together with a digital scale and baggies. Two cell phones were located in the vehicle. Mr. Burke had $120, all in $20 bills, on his person. [ 3 ] A pre-sentence report was prepared for the court. Mr. Burke is 22 years of age and was 21 at the time of the offence.

He has a grade 11 education and resides with his grandmother. He is reported to have been diagnosed with Attention Deficit Hyperactivity Disorder at a young age. Mr. Burke does not have a prior criminal record. He is currently employed with G.P.F. Tree Services and is reported to be a good worker. He has a young son from a previous relationship whom he supports. [ 4 ] It is mitigating that Mr. Burke entered an early guilty plea, is accepting responsibility and has no criminal record. [ 5 ] Pursuant to section 10(2) of the CDSA , it is an aggravating factor that Mr.

Burke carried a weapon at the time of his offence. Specifically, the shotgun and shells were in immediate proximity in the backseat and, therefore, readily accessible. [ 6 ] Counsel have presented a joint recommendation on sentencing of two years in federal penitentiary for the possession of cocaine for purpose of trafficking and for the offence of unlawful possession of a firearm, 30 days concurrent. [ 7 ] As stated by our Court of Appeal in R. v.

Cromwell 2005 NSCA 137 , joint recommendations are generally accepted unless the sentence is not in the acceptable range, is contrary to the public interest, or would bring the administration of justice into disrepute. In

other words the sentencing judge does not reject a joint submission just because the judge would have imposed a more severe sentence. [ 8 ] I have reviewed sentencing decisions provided by counsel including R. v. Oickle , 2015 NSCA 87 ; R. v. Knickle 2009 NSCA 59 ; and R. v. Aucoin 2011 NSCA 64 . [ 9 ] Trafficking in cocaine for profit will generally receive a term of imprisonment in a federal penitentiary. This is reinforced by the aggravating factor of the presence of a weapon. [ 10 ] Mr. Burke is a young first time offender with prospects of rehabilitation.

He would be described as a petty retailer at the time of this offence. The court however, must emphasize denunciation and deterrence and send a message to the community that trafficking in a harmful drug such as cocaine will be dealt with severely by the court. As this court has stated previously, people who obtain and use these drugs become victims in our society. [ 11 ] I am satisfied, given the present circumstances, the joint recommendation on sentencing complies the purpose and principles of sentencing as set out in the Criminal Code . . [ 12 ] Mr.

Burke is sentenced to a term of two years federal penitentiary for the offence of possession of cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act . The sentence for unlawful possession of a firearm contrary to section 91(1) of the Criminal Code is 30 days concurrent. [ 13 ] In terms of ancillary orders, the following is ordered: - A firearms prohibition order pursuant to

section 109 of the Code for a period of 10 years and for life on prohibited weapons; - A secondary designated DNA collection order; - Forfeiture of offence related property pursuant to

section 16 of the CDSA - Forfeiture of the firearm pursuant to section 491(1) (

a) of the Criminal Code ; - Victim Surcharge $200, 36 months to pay. Scaravelli, J.