GOLDENBERG QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 478 Date: 2011 12 19 Docket: Q.B. CR. 897/2011 Judicial Centre: Estevan BETWEEN: HER MAJESTY THE QUEEN and PHILIP EDWARD MULLINS Counsel: Steven P. Dribnenki for the Crown Lori A. Dunford for the accused JUDGMENT ZARZECZNY J. December 19, 2011 INTRODUCTION [1] On December 13, 2011, the accused, Philip Edward Mullins was found guilty of three counts contained in an Amended Indictment dated December 12, 2011, charging him with the following offences: Count 1: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully possess a controlled substance included in Schedule 1 to wit: cocaine (benzoylmethylecgonine) for the purpose of trafficking, contrary to section 5(3)(a) of the Controlled Drugs and Substances Act. Count 2: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully possess a controlled substance included in Schedule I to wit: cannabis (marihuana) for the purpose of trafficking, contrary to section 5(3)(a) of the Controlled Drugs and Substances Act. Count 3: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully have in his possession property (or proceeds of property), to wit: cash of a value exceeding $5,000.00 knowing that all (or part) of the property was obtained (or derived directly or indirectly) as a result of the commission in Canada of an offence punishable by indictment contrary to section 354 and 355 (a) of the Criminal Code. [2] A sentencing hearing was subsequently held December 19, 2011 after which the court reserved its sentencing judgment now delivered. CIRCUMSTANCES OF THE OFFENCE [3] The circumstances of the offences alleged, and to which the accused has now been found guilty, took place in the City of Estevan, Saskatchewan on August 25, 2010. On that date, as result of information received, members of the Estevan Police Force, having obtained search warrant, attended residence located at 19 Coronation Street in the Estevan Trailer Court. There they found seven individuals including the accused. The accused was found in bedroom at the far end of the house trailer alone and apparently either sleeping or lying on bed in this bedroom. His head was on or immediately beside black duffle bag which was ultimately found to contain 1,312.7 grams of marihuana and 29.9 grams of cocaine. Immediately beside the bed was red suitcase which was found to contain in excess of $27,000.00, cash consisting mostly of $20.00 bills wrapped up in three bundles. After his arrest, the accused was searched and another amount, slightly in excess of $4,000.00 cash, was found on his person. He was charged with the offences which he has presently been found guilty. number of the other individuals found in this residence also possessed drugs and were charged with various drug offences. [4] The defence admitted that the quantity of marihuana and cocaine would, if the accused was found to be in possession of them, exceed quantities for personal usage and would constitute drugs in possession for the purposes of trafficking. CIRCUMSTANCES OF THE OFFENDER [5] Mr. Mullins is 34 years of age. He is not married, has no children nor was he employed at or about the date of this offence. [6] His counsel advises that he has serious addiction to marihuana and cocaine. He began drug use in his late teens. [7] Mr. Mullins weighs approximately 400 pounds and he is very large individual. He attributes his inability to find or maintain gainful employment on his excessive weight. He has only grade 12 education and has never had “career”. He claims to be interested in acquiring job skills training and is particularly interested in heavy equipment operator’s course. His parent and sibling sister live in New Brunswick and his plans include returning to that region of Canada. POSITION OF THE PARTIES The Crown’s Position [8] The Crown filed sentencing brief and it sets out the Crown’s position on sentencing. To summarize, the Crown is seeking the following sentence: a) global (for all three charges) sentence of imprisonment of five years; b) forfeiture order pursuant to s.16(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as am. (“CDSA”) and s.462.37(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), of all items seized; c) fine in lieu of forfeiture pursuant to s. 462.37(3) of the Code for all cash used for legal fees; d) mandatory weapons prohibition pursuant to s. 109 of the Code; e) an order requiring Mr. Mullins to provide bodily substances for DNA analysis pursuant to s. 487.051(3) of the Code. [9] The Crown’s position was advanced upon and supported by number of this Court’s and Saskatchewan Court of Appeal’s sentencing decisions involving offences for possession for the purposes of trafficking in marihuana and harder drugs including cocaine. The Crown takes the position that the nature and quantity of the drugs found in Mr. Mullins’ possession for the purposes of trafficking constitute an aggravating factor. The court notes that among the six persons also found in this house trailer, number of them were between 15 and 17 years of age. [10] The Crown argues that the applicable purposes, principles and objectives of sentencing to be stressed in this case include denunciation of this accused’s unlawful conduct and deterrence to him and other persons from committing serious drug offences. (See R. v. Aube, 2009 SKCA 53 (CanLII); 324 Sask.R. 303 (esp. para. 19); R. v. Dubai, 2008 SKCA 49 (CanLII), 310 Sask.R. 85 (esp. para. 5)) [11] The Crown also refers to s. 10 of the CDSA providing as it does that in cases of sentencing for drug offences rehabilitation, treatment and an acknowledgement of harm done to victims and the community are all to be considered. Subsection 10(2) outlines circumstances which the court must take into consideration in such sentencings including, in the circumstances of this case, that the drugs in question were possessed for the purposes of trafficking and that the accused was previously convicted of designated substance offence. The court notes that while young persons were present in the house trailer at the time the accused was arrested, there is no evidence that the drugs which they possessed were received from the accused. Mr. Mullins does have serious prior conviction record for drug trafficking and conspiracy to do so as well as number of drug possession charges. The Accused’s Position [12] Counsel for the accused also submitted written brief respecting Mr. Mullins’ position on sentencing. She observes at para. 17: While Mr. Mullins record is an aggravating circumstance the facts as came out in evidence do not show sophisticated commercial enterprise that would warrant an extremely lengthy period of incarceration. At para. 18, the defence urges as follows: ... The defence respectfully submits that the sentence should be in the range of years to 30 months, with long period of probation to assist Mr. Mullins in overcoming his drug addiction which has placed him in the criminal justice system ... [14] The significant issue with respect to the sentencing of this case relates to Mr. Mullins’ pre-trial detention upon these charges. He has been in custody since he was arrested upon these offences August 25, 2010. He applied for and was denied bail and as of December 19, 2011, he had been in custody for 15 months and 24 days. [15] Defence counsel has filed an affidavit from Mr. Mullins relating to his personal circumstances and the nature of his pre-trial detention. On the basis of the information contained in that affidavit and her submissions based upon the interpretation and application of ss. 719(3) and 3.1 of the “Code”, she urges the court to give Mr. Mullins one and one-half times credit for the time he has served on remand awaiting trial. [16] Counsel for Mr. Mullins stresses his personal circumstances, including his drug addictions, the apparent support he has from his family members in New Brunswick and his expressed intention to acquire employment skills so that when released he can have better employment prospects. ANALYSIS The Sentencing Provisions of the Criminal Code [17] In considering the sentencing of Mr. Mullins, have considered the provisions of the Code and s. 10 of the CDSA setting out the fundamental purposes, objectives and principles of sentencing generally and those to be applied to sentencing in drug cases. [18] The Criminal Code of Canada, and in particular s. 718 of the Code, sets out the fundamental purposes of sentencing. These include maintaining respect for the law and the just, peaceful and safe society. The objectives of sentencing are also set out in this section of the Code and they include denunciation of unlawful conduct, deterrence of an offender or other persons from committing offences, separation of offenders from society when necessary, assisting in the rehabilitation of offenders and finally the promotion of sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [19] The fundamental principle of sentencing is set out by s.718.1 of the Code. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [20] Section 718.2 of the Code mandates that sentencing court must take into consideration relevant aggravating or mitigating circumstances relating to the offence of the offender in considering whether or not sentence should be increased or reduced. This section advances the parity principle that similar sentences should be 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 in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [21] Finally, the court has considered, although it does not appear to be appropriate or applicable in this case, the provisions of s. 742.1 of the Code relating to sentences of imprisonment of less than two years and the option of community based sentencing. The court concludes, in the circumstances of this case, that it would not be appropriate to impose an overall sentence less than two years in the circumstances of this case or this offender. Aggravating Circumstances [22] The aggravating circumstances in this case include the fact that the amount of marihuana and cocaine found in the accused’s possession was admittedly for the purpose of trafficking. Cocaine is recognized as “hard drug”. It is generally recognized that it is addictive and that marihuana use can create serious dependancy. [23] Mr. Mullins, in the whole of the circumstances, cannot be considered “street level” drug possessor or trafficker. The amount of drugs which he was found to possess was not comparable to those cases that involved sophisticated drug distribution and trafficking organization dealing with the huge quantities found in van loads or bricks of cocaine. Nevertheless, the quantity Mr. Mullins was found to possess, when combined with the significant amount of cash (almost $30,000.00) which Mr. Mullins possessed, lead to no other conclusion than that he was wholesaler of the two drugs in question at least at the mid-range of the drug trafficking spectrum. [24] Nor is Mr. Mullins young man he is 34 years of age. Young persons were present in the trailer when he was arrested and that too, regard, as an aggravating circumstance. [25] Of very significant concern to and impact upon this Court in terms of sentencing is the fact that Mr. Mullins has previous drug related criminal record. This is noted as sentencing factor of particular importance in s. 10 of the CDSA. As the Crown points out in paras. and 46 of its brief, Mr. Mullins had nine prior drug convictions since 1999, two for trafficking in 2000 for which he received 12 month sentence of incarceration and in 2007, one trafficking and one conspiracy to traffic which resulted him receiving sentence of five years in the penitentiary. The court, of necessity, considered this to have significant impact upon the appropriate sentence to be imposed on Mr. Mullins for the current offences. Mitigating Circumstances [26] Simply put, there are few mitigating circumstances that the court can and should properly take into account in reaching its sentencing decision. As previously observed, Mr. Mullins is not entitled to the deference that can and perhaps should be paid to youthful offender facing his first encounter with the courts. When this offence was committed, he was in his 30's and he appears to have made very little productive contributions to society or to his own advancement. There is no evidence that he has dealt effectively or perhaps at all with his drug addictions or dependancies nor does his affidavit nor the written submissions of his counsel outline any programming that he has taken or intends to take to deal effectively with them. [27] He claims to have been discriminated against because of his size and over weight condition yet there is an absence of any evidence that an effort has been made to deal with his obesity, or that if it is result of metabolic condition he has, he has taken any steps to overcome or effectively deal with its impact on his working and social life. [28] He has no definitive plan to deal with any of these issues other than his stated intention to enhance his employment skills by taking heavy equipment operations course. Section 719 of the Criminal Code Pre-trial detention [29] come now to consider the impact and appropriate application of the provisions of s. 719(3) and (3.1) of the Code which state as follows: 719(3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence but the court shall limit any credit for that time to maximum of one day for each day spent in custody. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [30] The court received the evidence, by the affidavit of Mr. Mullins, that he has spent just short of 16 months on remand since being arrested on this offence. He deposes to the conditions he experienced while on remand. There is only one program available to remand prisoners and that is the Life Skills Program and he participated in that program. The rest of his time was, as is often referred to “dead time”. [31] He deposes that on average, prisoners on remand are in secure lock-up between 20 to 21 hours day. On seven occasions, the remand unit was on 24 hour lock-down ranging from one day to ten days. There is very little recreational opportunity. His pre-trial detention, which regard to be inordinately long, was in part the product of failed preliminary hearing date which, because of severe weather conditions, and minor accident, saw the prosecutor unable to reach Estevan. The pre-trial was re-scheduled with the resulting delays. Many of the other delays were either attributable to Mr. Mullins or jointly he and the Crown. (See para. 34 of the Crown’s Sentencing Brief). Nevertheless, Mr. Mullins could and should have been brought to trial sooner than he was. Failure to do so caused far longer period of pre-trial detention than was appropriate and this length exacerbates the negative circumstances this accused experienced while on remand. [32] I accept Mr. Mullins’ deposition that he was a compliant prisoner, had no disciplinary issues or problems while on remand and that he would have qualified, had he been in the regular prison population, for a one-third reduction in his sentence for good behaviour. [33] In the result, and for these reasons, conclude that the circumstances justify the maximum credit allowed pursuant to s.719(3.1) of the Code. I give Mr. Mullins credit of one and one-half days for each day he spent on remand to a total of 23 months, 21 days credit (see in this regard R. v. Johnson, 2011 ONCJ 77 (CanLII), [2011] O.J. No. 822 (Ont. Ct. Jt.). DECISION Sentencing Cases [34] In R. v. Aube (supra), Smith, J.A. observed at para. 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years ... [35] While not convicted of trafficking, Mr. Mullins was convicted of having in his possession quantities of cocaine and marihuana for the purposes of trafficking. [36] Both this Court and the Saskatchewan Court of Appeal have had numerous occasions to consider the sentencing of persons engaged in drug trafficking or possession of drugs for that purpose. The court accepts the range as identified by Smith J.A. in the Aube case. [37] Mr. Mullins was not, on this occasion, involved or engaged in sophisticated or organized drug transportation and trafficking organization. There is no evidence or suggestion advanced by the Crown that he was other than lone operator working for his own benefit. While his counsel argues that he is involved with the drug trade to support his own addictions, the amount of cash which the court concluded were proceeds of crime would suggest not only that that is the case but as well this is how Mr. Mullins has chosen to earn his living. [38] Prior charges, convictions and incarcerations have appeared to have little impact or effect in deterring him or in his rehabilitation. He appears to have become “professional drug dealer”. [39] Having taken the totality of his personal circumstances together with the circumstances of this offence into account, and having reviewed the cases and authorities respecting sentencing in cases of drug possession for the purposes of trafficking or trafficking as reviewed in both the defence and Crown briefs, I have concluded an appropriate sentence in this particular case is a sentence of imprisonment of 30 months. This sentence, when combined with the default provisions must impose pursuant to s. 462.37(4)(ii) of six months presents potential “global sentence” for Mr. Mullins of three years imprisonment. [40] The 30 month sentence I have imposed is before any credit is granted within the meaning of s. 719(3.3) of the Code. I grant a credit against that sentence for the time served by Mr. Mullins on remand at the rate of one and one-half days for each day spent in remand custody to a total of 23 months and 21 days. In the result, I impose a remaining sentence to be served by Mr. Mullins of 6 months, 9 days, the same to be served unless otherwise permitted at a provincial correctional centre in Saskatchewan. [41] In addition to the sentence of incarceration imposed upon Mr. Mullins, the court authorizes and directs the following further orders: 1) pursuant to s. 16(1) of the CDSA and s. 462.37(1) of the Criminal Code forfeiture of all items seized from Philip Edward Mullins incidental to his arrest August 25, 2010; 2) pursuant to s. 109 of the Criminal Code, Philip Edward Mullins in prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life; 3) pursuant to s. 487.051(3) of the Criminal Code, Philip Edward Mullins is ordered to provide and the Crown is authorized to take from him the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis; 4) pursuant to s. 462.37(3) of the Criminal Code, Philip Edward Mullins is ordered to pay a fine in lieu of forfeiture in the sum of $16,325.98 to be paid within 60 days and, in default of payment, pursuant to s. 462.37(4)(ii), a term of imprisonment of six months consecutive to the term of imprisonment imposed by this judgment is ordered. [42] The order imposed pursuant to s. 487.051(3) is authorized because of Mr. Mullins’ serious prior conviction record and the dangerous nature of the offences with which he has been and is presently convicted including the potential for violence often associated with the drug trade. The court concludes that it is in the interest of justice that such an order be made. In respect of the s.462.37(3) order, the amount involved is $16,325.98 which was transferred to Mr. Mullins’ legal counsel at his request to pay his legal fees. These funds were part of the proceeds of crime found to be in his possession when he was arrested and of which he is being found guilty. J. T.C. ZARZECZNY
The accused was found guilty of possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking contrary to s. 5(3)(a) the Controlled Drugs and Substances Act, and having in his possession cash (almost $30,000) knowing it was obtained through the commission of an offence contrary to s. 354 and 355(a) of the Criminal Code. At issue was the accused's sentence. The Crown sought a global sentence of 5 years plus a forfeiture order of items seized, a fine in lieu of forfeiture for all cash used for legal fees, a mandatory weapons prohibition and sought bodily substances for DNA analysis. As the accused had been denied bail and had pre- trial detention of 15 months and 24 days, the defence sought one and one-half times credit for time served on remand.HELD: The accused had 9 prior drug convictions since 1999, two for trafficking in 2000 for which he received a 12 month sentence of incarceration and, in 2007, one trafficking and conspiracy to traffic which resulted in his receiving a 5 year penitentiary sentence. As the accused had been a compliant prisoner on remand, the Court granted him credit for 1.5 days for each day spent on remand for a total of 23 months and 21 days credit. The Court imposed a sentence of 30 months imprisonment, and ordered a DNA sample as well as a fine in lieu of forfeiture in the sum of $16,326 (being the sum transferred to the accused's legal counsel to pay his legal fees) to be paid within 60 days and, in default of payment, a term of imprisonment of 6 months consecutive to the term of imprisonment otherwise imposed.