R. v. Patton, 2016 NSSC 222

SUPREME COURT OF Nova Scotia Citation: R. v. Patton , 2016 NSSC 222 Date: 2016-08-25 Docket: Pictou , No. 446792 Registry: Pictou Between: HER MAJESTY THE QUEEN v. HAROLD NEWMAN PATTON Judge: The Honourable Justice N. M. Scaravelli Decision: August 25 th , 2016 Pictou, Nova Scotia Counsel: Bronwyn Duffy, for the Federal Crown William Gorman, for the Provincial Crown Douglas Lloy, Q.C., for the Defendant Orally By the Court: [ 1 ] Mr.

Patton appears for sentencing having entered guilty pleas to a four count indictment namely: that on or about the 15 th day of July, A.D., 2015, at or near West River Station, Pictou County, he did: 1. Unlawfully produce cannabis marihuana, contrary to section 7(1) of the Controlled Drugs and Substances Act, (CDSA); 2. Possession of cannabis marihuana for the purpose of trafficking contrary to section 5(2) of the CDSA . 3. Fraudulently use electricity, property of Nova Scotia Power, exceeding $5,000 in value, contrary to

section 334 (

a) of the Criminal Code (CC); 4. Possession of a cross-bow while prohibited, contrary to

section 117.01(1) ( CC ). [ 2 ] Acting on a search warrant, the police entered a residence occupied by Mr. Patton and discovered a marihuana grow operation consisting of approximately 500 marihuana plants. Electricity was obtained illegally by way of an electrical bi-pass installed in a 200 amp fused switch. [ 3 ] Mr. Patton cooperated with police by giving a statement admitting to the charges.

He entered an early guilty plea to all charges. [ 4 ] Federal crown, Provincial crown and defence counsel have submitted a joint recommendation on sentencing of a global term of imprisonment, two years, less one day. [ 5 ] A pre-sentence report was prepared for the court. Mr. Patton is 38 years of age, is single and unemployed. He completed grade 10 level of education. According to Mr. Patton he committed the offence to pay off a debt.

[ 6 ] It is mitigating that Mr. Patton accepted responsibility and entered an early guilty plea. [ 7 ] It is an aggravating factor that Mr. Patton has a related criminal record including one prior conviction for production of marihuana in 2011. He was sentenced to 18 months conditional sentence order which he successfully completed. That conviction would have triggered section 5(3)(a)(i)(

D) CDSA which provides for a mandatory minimum sentence of one year imprisonment due to the previous conviction within a 10 year period. However, the Supreme Court of Canada in R. v. Lloyd 2016 SCC 13 , ruled this provision unconstitutional. [ 8 ] Pursuant to section 7(1)(

b) CDSA the maximum term of imprisonment is 14 years and a mandatory minimum of one year is applicable if the number of plants is between 200 and 501. This minimum is increased where subsection 3 factors apply. The crown has not sought to prove any of these factors and has not provided notice. [ 9 ] The applicable principles of sentencing are set out in the Criminal Code and CDSA . Denunciation and deterrence, both specific and general are key sentencing objectives in this case. Unlike

Schedule I offences which generally attract Federal periods of incarceration, the range of sentence for production and trafficking of cannabis marihuana (Schedule II) vary widely depending on the circumstances. [ 10 ] I have reviewed the authorities provided by counsel including R. v. MacIvor, 2003 NSCA 60 ; R. v. Simpson, 2008 NSSC 57 ; R. v. Nguyen , 2007 NSPC 9 and R. v. MacDonald, 2013 NSSC 255 . [ 11 ] As stated by our Court of Appeal in R. v.

Cromwell, 2005 NSCA 137 , joint recommendations are generally accepted by the sentencing court unless the sentence is not in an acceptable range; is contrary to public interest or would bring the administration of justice into disrepute. A sentencing judge does not object to a joint submission just because the judge may have imposed a more severe sentence. [ 12 ] Crown counsel has confirmed in her brief that the global sentence of two years less one day is a true joint recommendation as contemplated by R. v.

Knockwood , 2009 NSCA 87 . [ 13 ] I am satisfied the joint recommendation of a global sentence of two years less one day is appropriate under the circumstances. The sentence is as follows: 1. Section 7(1) CDSA 18 months imprisonment 2. Section 5(2) CDSA 12 months concurrent

Section 334(

a) CC 6 months less one day consecutive, which I determine to be 180 days. 4.

Section 117.01(1) CC 3 months concurrent Total - 2 years less one day [ 14 ] In terms of ancillary orders: a. Section 7(1) and 5(2) CDSA involve a mandatory

section 109 firearm prohibition for life; b. There shall be a forfeiture order pursuant to

section 16 of CDSA for the offence related property; further order a

section 491 forfeiture order with respect to the

section 117.01(1) CC related to the cross-bow; c. There will be a secondary DNA order pursuant to

section 487.04 of the Code; d. There will also be a minimum victim surcharge of $200 on each of the four counts charge totalling $800. The court will allow 36 months to pay. ______________________________ Scaravelli, J