J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 53 Date: 20090416 Between: Docket: 1605 Her Majesty the Queen and Daniel Aube, Jason Pederson and Dale Kaye Respondents Coram: Cameron, Smith and Hunter JJ.A. Counsel: Douglas G. Curliss for the Crown Dwayne Z. Braun for the Respondents Appeal: From: Provincial Court Heard: April 16, 2009 Disposition: Appeal Allowed (Orally) Written Reasons: May 7, 2009 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Hunter Smith J.A. [1] The three respondents pled guilty to three offences: trafficking in cocaine for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code; conspiring together and with others to traffick in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code; and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and substances Act. [2] On the last two counts, each was sentenced to one year less a day to be served in the community on each count, to be served concurrently, plus a 10 year fire arms prohibition. On the first count, each was sentenced to serve one year, in the community, consecutive to the sentences for the other counts. They were also made subjects to DNA orders and there was an order of forfeiture of a vehicle belonging to a third party. [3] The Crown appealed these sentences on the grounds that the sentencing judge failed to give proper effect to the gravity of these offences, particularly in light of the volume of trafficking and lengthy period of time over which it had taken place, the highly dangerous nature of the substances sold, which included crack cocaine, the fact that they were working for a criminal organization and the fact that their motivation was financial gain. [4] The panel allowed the appeal from the bench, substituting more lengthy period of incarceration for the conditional sentences originally imposed, with more extensive reasons to follow. These are those reasons. [5] The three respondents all worked as street-level cocaine dealers, selling crack cocaine in gram, gram, and gram (8-ball) amounts for criminal gang based in Edmonton known as the “Crazy Dragons.” The Crazy Dragons expanded into Saskatoon in 2005 to set up business in the crack cocaine trade. The respondents were involved in this activity for at least months, from November 15, 2005 to August 2, 2006, when they were arrested. During the last 60 days of that period the police recorded on wiretap in excess of 600 drug deals made by the respondents. This would have involved minimum of 300 grams and maximum of 2.1 kilograms of cocaine for proceeds of between $36,000 and $180,000. During this period the respondents worked 12 hours day and rotated their shifts so that the “deal” phone and delivery car were being operated twenty four hours per day, seven days per week. [6] The respondents were trained in their techniques by the criminal organization. The noted high volume of sales was made possible by practices defined by the organization and established to ensure that they worked as an efficient team to ensure delivery of cocaine on 24 hour day basis while reducing the risk of discovery. They used code names to conceal their identities and code words to conceal their activities; when shipment of cocaine would arrive in Saskatoon from Edmonton, all would meet at “stash house” in Langham or rent hotel room in Saskatoon to cut up the cocaine into packages for resale, then stash the cocaine packages; the stashes of cocaine were located throughout the city, behind bushes in parks, in back alleys, in cemeteries, and in ditches on the outskirts of town in an effort to avoid detection by police and to reduce their liability should they be arrested; and they carried only small amounts of cocaine at any given time and were directed to secrete the baggies of cocaine in their mouths while in transit. In the event they were stopped by the police, they could simply swallow the baggies and avoid detection. [7] During the time of their involvement in this activity, none of the respondents was employed. Their only source of income was from selling crack cocaine. [8] The circumstances of these offences are very serious and would, in normal circumstances, call for penalty substantially above the bottom of the range of sentences imposed in relation to drug trafficking. say this in light of the length of time the respondents were involved in selling drugs and the high volume of drugs sold, the nature of the drugs sold, the sophistication of the enterprise, and the fact that their motivation was clearly profit. [9] Despite this history, the personal circumstances and conduct of each of these respondents, particularly during the in excess of two year period between his arrest and the sentencing for these offences, is impressive and significantly mitigating. All are relatively young. Both Daniel Aube and Jason Pederson had just turned 18 when they became involved with the Crazy Dragons and are now 21 years old. Dale Kaye, who is now 23 years old, was not yet 20 in the fall of 2005. Neither Mr. Kaye nor Mr. Pederson has prior criminal record. Mr. Aube’s record consisted of two convictions for failing to comply with the conditions of his release in relation to these charges: one for breach of curfew and the other for failing to carry his recognizance with him when outside his residence. All have very strong personal and community support and, after few stumbles, each has performed well under the strict conditions under which he was released, particularly in terms of establishing strong employment record. Each has explicit plans and strong prospects for the future. All expressed remorse and the sentencing judge was persuaded that each had made significant changes in his life and was by all appearances rehabilitated. [10] Dale Kaye grew up in foster home due to his mother’s drug dependency. He is of mixed race (an Aboriginal mother and black father) and has been diagnosed as suffering from fetal alcohol effects. As youth, he had used both marihuana and cocaine, and prior to the offending conduct, had never been gainfully employed. [11] He became involved with the Crazy Dragons in November, 2005. He came to Saskatoon and was homeless and had no means of support. He met gang member at party and was offered place to stay, friendship, food and bit of money if he would work for them. [12] Early in the release period Mr. Kaye violated his release conditions by being unaccounted for in the community, but subsequently was compliant and expressed regret for his criminal activity. He was consistently employed during his release period and at the time of sentencing had been working for construction company for three months. His employer spoke movingly on his behalf at the sentencing hearing and Mr. Kaye himself spoke of his joy in this job. [13] Daniel Aube came from broken home and due to family difficulties left home at the age of 17 without finishing high school. He got involved with the gang with childhood friend. When the charges in this matter were laid, Mr. Aube had left Saskatoon and returned to Edmonton. When he heard of the charges, he turned himself in. His friend, by contrast, fled, and remained at large, still working in the drug trade, for over year, when he was stabbed and killed. This incident has had significant impact on Mr. Aube. [14] Since his release Mr. Aube has been employed in several jobs. Most recently, he started working at restaurant as line cook and rapidly assumed additional responsibility, managing the restaurant in the evenings. His employer provided strong letter of support. He has girl friend who is law student at the University of Alberta. He had explicit plans to obtain his GED and then enter the Northern Alberta Institute of Technology to train as chef. At the sentencing hearing he expressed deep remorse and regret for his involvement and belief that he had changed during the release period. [15] Jason Pederson enjoys very strong family support. In younger years he was an honour student, excelled in sports and had won citizen award. But he seemed to go off the rails in high school, dropping out before completing grade 12. He also got involved with the gang with friend. [16] At the time of arrest he was also charged with obstruction for giving false name to the police. In the early days of his release he was charged with some violations of conditions of his release, including failing to keep the peace and failure to attend the court. Since that time, however, he has committed to completing his GED and to his employment with Home Depot, with whom he expects to have career. He has had girl friend for two years who is supportive of him, as is his family. He has sought counselling to deal with his remorse and shame in relation to his criminal conduct. [17] The sentencing judge was clearly moved by these circumstances. While we agree that they are mitigating, and would justify a sentence at the low end of the range, it is our view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. In the result, the one year sentence for the trafficking offence, to be served in the community, is in our view demonstrably unfit given the range of sentences established in other cases of trafficking offences. [18] As the Crown has pointed out, the gravity of these offences is demonstrated by the maximum sentences set out in the Criminal Code: life imprisonment for trafficking in cocaine and conspiring to traffick in cocaine and 14 years imprisonment, consecutive, for committing those offences for criminal organization. [19] This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is an error in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors. See. R. v. Patryluk, 2002 SKCA 33 (CanLII), and especially paragraphs 21-23. This decision, in particular, where the circumstances were much less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), 1992 CanLII 8299 (SK CA), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56 (CanLII); R. v. Dubai, 2008 SKCA 49 (CanLII); and R. v. McCallum, 2007 SKCA 139 (CanLII). [20] Considerations of parity alone would have warranted sentence of years on the trafficking charge alone in the circumstances of this case. In our view, the sentence of one year was demonstrably unfit, in light of the seriousness of these offences, even after taking into account the mitigating personal circumstances of these offenders. [21] We are also of the view that the total sentence imposed in this case failed to give due weight to the aggravating factor that these offences were carried on in furtherance of criminal organization. Section 467.14 of the Criminal Code requires that the sentence imposed for this offence be consecutive to any other sentence imposed for the predicate offence. It is clear that if the sentence imposed for the predicate offence is reduced to take into account the mandatory consecutive penalty for the aggravating offence, the effect is to frustrate the will of parliament through the failure to recognize and impose the mandatory consecutive penalty required by law for the separate, distinct and serious nature of the aggravating offence. See R. v. Brewer (1999), 1999 CanLII 18938 (NL CA), 141 C.C.C. (3d) 290 (Nfld. C.A.) and R. v. St. Amand (1982), 1982 CanLII 3772 (ON CA), 67 C.C.C. (2d) 130 (Ont. C.A.). [22] Accordingly, the sentences imposed in these cases must be set aside. In each case, an appropriate sentence for each of the respondents, taking into account the seriousness of the offences, the personal circumstances of the respondents, and the aggravating nature of the offences pursuant to s. 467.12, would be 18 months, concurrent, for each of the last two counts, and one year consecutive for the criminal organization offence, for a total of 30 months imprisonment. [23] In this case, each of the respondents has already served five months of the conditional sentence imposed by the sentencing judge, for which they should be given credit. Accordingly, the total sentence in each case is 30 months, 5 months having already been served.
The three respondents pled guilty to three offences: trafficking in cocaine for the benefit of, or at the direction of, or in association with a criminal organization contrary to s. 467.12 of the Criminal Code; conspiring together and with others to traffic in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act and s. 465(1)(c) of the Criminal Code; and trafficking in cocaine contrary to s. 5(1) of the Controlled Drugs and Substances Act. On the last two counts, each was sentenced to 1 year less a day to be served in the community on each count, to be served concurrently, plus a 10 year fire arms prohibition. On the first count, each was sentenced to serve 1 year, in the community, consecutive to the sentences for the other counts. They were also subjected to DNA orders and there was an order of forfeiture of a vehicle belonging to a third party. The Crown appealed these sentences on the grounds that the sentencing judge failed to give proper effect to the gravity of these offences. The Court weighed all the evidence and circumstances of the accused, and found the sentencing judge was clearly moved by the personal circumstances of the accused and while they are mitigating and would normally justify a sentence at the low end of the range, it was the Court's view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. The Court further stated the 1 year sentence for the trafficking offence, to be served in the community, was demonstrably unfit given the range of sentences established in other cases of trafficking offences, even after taking into account the mitigating personal circumstances of these offenders. The Court found the sentences must be set aside. The Court found that an appropriate sentence for each of the respondents, taking into account the seriousness of the offences, the personal circumstances of the respondents, and the aggravating nature of the offences pursuant to s. 467.12, would be 18 months, concurrent, for each of the last two counts, and 1 year consecutive for the criminal organization offence, for a total of 30 months imprisonment. HELD: The total sentence in each case is 30 months, 5 months having already been served.