)) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 7208

CITATION : R. v. Browne, 2013 ONSC 7208 COURT FILE NO.: 12-90000137-0000 DATE: 20131122 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: )) HER MAJESTY THE QUEEN – and – COREY BROWNE )) )) )) )) ) ) Chris de Sa , for the Crown Robert Nuttall , for the Defendant HEARD: November 5, 2013 HAINEY j. REASONS FOR SENTENCE [ 1 ] Following a trial, I found Mr. Browne guilty of possession of cocaine for the purpose of trafficking. Circumstance of the Offence [ 2 ] On October 6, 2009, the police executed a search warrant at Mr. Browne’s mother’s apartment where he was living. They found Mr.

Browne and his friend seated on two couches in the living room of the apartment. Mr. Browne was using the living room as his bedroom. On the floor between the two couches they found a Kleenex box in which there were several plastic bags containing just over 69 grams of crack cocaine. It had a value of approximately $13,820. On the floor beside the Kleenex box was a small digital scale and some plastic wrapping. The police found another small digital scale in the living room and two larger digital scales elsewhere in the apartment. [ 3 ] I found that Mr.

Browne was in possession of the crack cocaine in the Kleenex box for the purpose of trafficking. Circumstances of the Offender [ 4 ] Mr. Browne was born in Canada although his family is from Barbados. He is 36 years old. He was 31 at the time of the commission of the offence. [ 5 ] He has a good relationship with his significant other, Ms. Hall. She is the mother of his two sons, aged 2 and 9, with whom he is also close. He has been actively involved in his sons’ lives. He has shared significant responsibility with Ms.

Hall in raising both of them. [ 6 ] He has a close relationship with his mother and younger brother with whom he has been living for the last four years. He has little contact with his father who lives in the United States. Although he used drugs in the past he does not have a drug problem or a drug addiction. [ 7 ] He completed his high school diploma a number of years ago while he was incarcerated for a previous conviction. He has been under house arrest for this offence for just over four years and has not worked. Prior to his arrest he was working in construction with his cousin’s husband’s company.

He intends to seek permanent employment as soon as he is free to do so. [ 8 ] He has been actively involved as a volunteer in the Flemington Park Community. He was highly regarded as a mentor to young persons at risk in the neighbourhood. His presence and contribution to the Flemington Park Community has been missed while he has been under house arrest. [ 9 ] Mr. Browne’s criminal record is as follows: • 1999 – possession of property obtained by crime; • 2005 – possession of cocaine for the purpose of trafficking;

• 2005 – possession of cannabis; • 2006 – possession of cocaine for the purpose of trafficking; • 2006 – obstructing a peace officer and failing to comply with a recognizance; • 2007 – obstructing a peace officer; • 2008 – failing to comply with a recognizance. [ 10 ] He has not breached any of the terms of his recognizance during the four-year period that he has been under house arrest. Positions of the Parties [ 11 ] Mr. de Sa, on behalf of the Crown, submits that a penitentiary sentence in the range of between two and a half to three years is appropriate. In support of his position he cites Mr.

Browne’s criminal record and the nature and quantity of drugs that were in his possession. He argues that the quantity of crack cocaine, the manner in which it was packaged and the different sizes of digital scales found in the apartment suggest that Mr. Browne was involved in a significant commercial operation solely for financial gain. Mr. de Sa submits that a conditional sentence would not be appropriate because of Mr. Browne’s criminal record and the nature of this offence that requires a sentence reflecting an appropriate level of denunciation and deterrence. He concedes that Mr.

Browne’s four years of house arrest is a mitigating factor that I should consider in arriving at an appropriate sentence. He maintains however, that this factor should not result in a reduction of the appropriate sentence by more than six months. [ 12 ] Mr. Nuttall, on behalf of Mr. Browne, submits that the appropriate sentence should be a one year conditional sentence of house arrest. He argues that Mr. Browne should receive a one year credit for the four years he has been under house arrest. He calculates this on the basis of one-quarter day’s credit for each day under house arrest.

He disagrees with Crown counsel that a penitentiary sentence is the starting point. He submits that a sentence in the upper reformatory range is the appropriate starting point. He points out that Mr. Browne has been under house arrest for over four years and has had no breaches of his recognizance. He argues that this makes him an excellent candidate for a conditional sentence. Mr. Nuttall submits that there is great potential for rehabilitation in Mr. Browne’s case. His last criminal conviction was five years ago. He has significant family commitments and a good track record over the last four years.

According to Mr. Nuttall, this makes a conditional sentence in the one year range appropriate. Applicable Principles of Sentencing [ 13 ] Sentencing is never an easy task for a trial judge. My discretion in determining a fit sentence is guided by the sentencing principles set out in the Criminal Code . [ 14 ] The fundamental purpose of sentencing, as set out in

section 718 of the Criminal Code , is to "contribute to respect for the law and the maintenance of a just, peaceful and safe society" by imposing sentences that have one of six objectives. The objectives include denouncing unlawful conduct, deterring the offender and others from committing crimes, separating offenders from society, where necessary, assisting in the rehabilitation of the offender, providing reparations for harm done to the victim or to the community and promoting a sense of responsibility in the offender. According to

section 718.1 of the Criminal Code any sentence imposed must be proportionate to the gravity of the offence and the responsibility of the offender. [ 15 ] Keeping in mind the fundamental purpose of sentencing, I am also required by

section 718.2 of the Criminal Code to impose a sentence taking into account the following: ▪ any relevant aggravating or mitigating circumstances relating to the offence or the offender; ▪ the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ▪ an offender should not be deprived of liberty if less restrictive sanctions are appropriate; and ▪ all available sanctions other than imprisonment that are reasonable in the circumstances must be considered. [ 16 ] At the time of the commission of this offence,

section 742.1 of the Criminal Code permitted the imposition of a conditional sentence for the offence of possession of cocaine for the purpose of trafficking, provided that the following three conditions were met: 1) The sentence of imprisonment imposed must be less than two years; 2) Service of the sentence in the community would not endanger the safety of the community; 3) Permitting the offender to serve the sentence in the community would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code . [ 17 ] There is a dispute whether an appropriate sentence would be one that is less than two years.

There is also a dispute whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. Crown counsel submits that a conditional sentence would not adequately reflect the principles of denunciation and deterrence. [ 18 ] I agree with Mr. de Sa that the paramount objectives of sentencing in this case must be the denunciation of Mr. Browne's conduct as well as general and specific deterrence because of Mr. Browne's prior convictions and the fact that he was engaged in the

drug business for financial gain. However, the rehabilitation of Mr. Browne is also important and must not be overlooked. [19] Both counsel have provided me with a number of cases in support of their respective positions as to the appropriate range ofsentence that should be imposed. They have also made persuasive submissions as to whether a conditional sentence for possession ofcocaine for the purpose of trafficking in this case is, or is not, a fit disposition. A review of the cases demonstrates that sentencing is notan exact science.

It is instead a profoundly individualized process driven by the unique facts of every case and the unique characteristicsof every offender. As Doherty J.A. noted in R. v. Hamilton, (ON CA), [2004] O.J. No. 3252, “… most attempts todescribe the proper judicial approach to sentencing are as close to the actual process as a paint by numbers landscape is to the real thing.” [20] The circumstances of any case, including this one, can be readily distinguished from any other case.

It is always necessary toconsider and apply all of the sentencing principles under the Criminal Code, having regard to the unique circumstances of the case. [21] The time spent by Mr. Browne under pre-sentence house arrest must also be taken into account as a mitigating circumstancein determining the appropriate sentence to impose. According to the Ontario Court of Appeal in R. v. Downes, (ONCA), [2006] O.J.

No. 555, although there is no rigid formula that I should apply, a lengthy period spent under pre-sentence house arrestis a relevant mitigating factor that must be given some weight in the determination of a fit sentence. Aggravating and Mitigating Factors [22] I turn now to the aggravating and mitigating factors of this case. [23] First, the aggravating factors: 1. Mr. Browne has been found guilty of possession of crack cocaine for the purpose of trafficking. Crack cocaine is a most dangerousdrug that wreaks havoc on the lives of addicts, their families and the community at large. 2.

The large quantity of crack cocaine, the manner in which it was packaged and the different sizes of digital scales in the apartmentindicate that the crack cocaine was not just being sold at the street level, but was being sold to street level dealers. 3. Mr. Browne was not a drug addict supporting his habit. He was engaged in the drug business for financial gain. He had over$13,000 worth of crack cocaine in his possession. 4. Mr. Browne has a criminal record. Most significantly, he has two previous convictions for possession of cocaine for the purpose oftrafficking in 2005 and 2006.

His last conviction was in 2008 for failing to comply with his recognizance. [24] This case also has the following mitigating factors: 1. Mr. Browne has strong family support. His mother, with whom he has been living, is most supportive of him. I was impressed withher when she testified. I believe she has a strong influence on him. He has a good relationship with Ms. Hall and they share parentingresponsibilities for their two sons. He is close to his two sons and has been intimately involved with them over the last four years.

Whilehe has been under house arrest he has been looking after his two year old son in the apartment every day while Ms. Hall has beenattending school. 2. I was provided with a letter from a close family friend, Beverley Goodman, who described Mr. Browne as a “member of myfamily”. She has known him for almost his entire life and described him as, “a respectful, courteous, trust-worthy, kind and soft-spokenyoung man”.

She indicated that: Corey has had some unfortunate circumstances occur in his life, but during the past 5 years he has turned his life around and has shown,not only maturity, but has learned from the past and is striving for a better future for himself and his children. He has made better choicesand has become more responsible and serious about personal, family and spiritual life. 3. I was also provided with a letter from Raymond Peter, a Community Recreation Programmer with the City of Toronto. He hasknown Mr. Browne for over 13 years. He described Mr.

Browne as follows: Over the years, Corey has been involved with multiple grassroots sports programs in the area and has been able to encourageparticipation from a diverse group of youth. He has championed many community endeavours with a positive attitude and a desire toinvolve many residents who will benefit from the experience. Corey is always courteous, efficient and extremely competent and has anexcellent rapport with people of all ages. … Corey has been instrumental in mentoring youth at risk in the neighbourhood by being afriend and listening to their concerns. 5. Mr.

Browne has not had any conflict with the law since being arrested on this charge just over four years ago. 6. Mr. Browne has been under house arrest for over four years. As a result he has been required to live with his mother in herapartment. He has been unable to work. His liberty has been significantly curtailed. He has complied with all of the terms of hisrecognizance. Analysis [25] In considering all of these aggravating and mitigating factors, including the time spent by Mr. Browne under house arrest, the

submissions of counsel, the applicable jurisprudence and the principles of sentencing, I have concluded that a maximum reformatory sentence of two years less one day is a fit disposition. I am satisfied that this sentence sufficiently reflects the principles of denunciation and deterrence as well as taking into account Mr. Browne’s prospects for rehabilitation which I find are significant. Having considered all of the particular circumstances of this case I am satisfied that a penitentiary term is not necessary to achieve the denunciation and deterrence required in this case.

This can be adequately achieved by a maximum reformatory sentence. [ 26 ] That leaves the issue of whether the sentence should be served in prison or in the community under strict terms. [ 27 ] I must first determine whether permitting Mr. Browne to serve his sentence in the community would endanger the safety of the community. To assess this, I am required to consider two factors: (1) the risk of Mr. Browne re-offending; and (2) the gravity of the damage that could ensue in the event that he re-offends: R. v. Proulx , [2002] 1 S.C.R. 61 at para. 69 . [ 28 ] In this regard, I must consider the fact that Mr.

Browne was convicted of breaching his recognizance in 2006 and 2008. The age of these offences must be weighed against the fact that he has been complying with his recognizance for the last four years. If Mr. Browne were to re-offend, the gravity of the harm to the community would be serious given the dangerous nature of crack cocaine and its distribution. [ 29 ] Although one can never rule out the possibility that he may re-offend, I am satisfied that permitting Mr.

Browne to serve his sentence in the community would not endanger the safety of the community given the lengthy period of time he has been on house arrest without any further criminal behaviour. [ 30 ] The remaining question is whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. As I have said, the paramount sentencing objectives in this case are to denounce this type of unlawful behaviour and to deter Mr. Browne and others from committing similar crimes. [ 31 ] There is no doubt, to quote Doherty, J.A. in R. v. Killam , [1999] O.J.

No. 4829 that, "imprisonment remains the most formidable denunciatory weapon in the sentencing arsenal." However, it is not the only means by which deterrence and denunciation can be achieved. Indeed Chief Justice McLachlin made it clear in R. v. Proulx at paragraphs 102 and 107 that conditional sentences can provide a significant degree of deterrence and denunciation when onerous conditions are imposed. The Chief Justice also stated at paragraph 103 that house arrest should be the norm in conditional sentences, rather than the exception. [ 32 ] This is a very close case.

Mr. de Sa’s position is not unreasonable in light of Mr. Browne’s criminal record and the nature and quantity of drugs involved. Two things tip the balance in favour of a conditional sentence in this case. The first is the principle of restraint, which underlies s. 742.1 . The second is the fact that Mr. Browne has demonstrated that he has started on the path to rehabilitation by remaining law abiding for the past four years.

I am impressed by the letter from Beverley Goodman that also confirms he is making efforts to turn his life around. [ 33 ] The use of conditional sentences to achieve the restorative objectives of rehabilitation, reparations, and the promotion of a sense of responsibility in an offender was recognized by Chief Justice McLachlin at paragraph 113 in Proulx , where she stated, "Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration." The ultimate interests of the community and Mr.

Browne are best served by a sentence that reduces the risk of recidivism and facilitates Mr. Browne's rehabilitation. Disposition [ 34 ] Mr. Browne, I believe that you are at a crossroads in your life. I have decided that you have demonstrated over the past four years that you are worthy of being given an opportunity to choose the road that will lead you to being a productive member of society and a positive role model for your children. This is your chance to break the cycle.

I believe that sending you to prison may interfere with the efforts you have already made to rehabilitate yourself, including the significant parenting responsibilities that you have been performing with your two sons. That would not ultimately be in society's best interest. For these reasons, I am going to permit you to serve your sentence in the community. [ 35 ] But do not make the mistake of thinking that a conditional sentence is a lenient sentence. You will be required to comply with strict conditions. Any violation of those conditions will have serious consequences for you.

You can expect to serve the balance of your sentence in prison if you breach these conditions. [ 36 ] I sentence you to two years less a day, to be served in the community, on the following conditions: (

a) you are to keep the peace and be of good behaviour; (

b) you must appear before the court when you are required to do so; (

c) you will report to your supervisor within two business days from today and thereafter when required and in the manner directed by your supervisor; (

d) you will remain within the jurisdiction of the court unless you obtain written permission to go outside the jurisdiction from the court or your supervisor; (

e) you will reside at an address approved by your supervisor, and notify the court or your supervisor in advance of any change of

your address; (

f) you will seek and maintain full-time employment unless you have permission from your supervisor to do otherwise; (

g) you will notify the court or your supervisor promptly of any change in your employment; (

h) you shall abstain from the possession and consumption of drugs except in accordance with a medical prescription; (

i) you shall not be in the company of anyone known to have a criminal record or who is facing criminal charges, except members of your family; and (

j) for the entirety of this sentence you shall be confined to your residence under house arrest twenty-four hours per day, seven days per week except for the following: (

i) being at work, including the time necessary to travel directly to and from work; (ii) attending counselling or treatment directed by your supervisor, including the time necessary to travel directly to and from the appointments; (iii) reporting to your supervisor, including the time necessary to travel directly to and from the appointments; (iv) attending medical appointments approved in advance by your supervisor, including the time necessary to travel directly to and from such appointments; (

v) dealing with a medical emergency for you or your children; and (vi) once a week, for a period not exceeding four hours including travel time, for personal or household errands, provided that the period is agreed upon in advance with your supervisor. [ 37 ] In addition, I make a DNA order pursuant to

section 487.051(2) and a weapons prohibition order for life. [ 38 ] That is my disposition. I wish to thank counsel for their helpful submissions. [ 39 ] Mr. Browne, I am giving you an opportunity to turn your life around. I hope you use it wisely. HAINEY J. Released: November 22, 2013 CITATION : R. v. Browne, 2013 ONSC 7208 COURT FILE NO.: 12-90000137-0000 DATE: 20131122 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – COREY BROWNE REASONS FOR SENTENCE HAINEY J. Released: November 22, 2013