R. v. Harrison
Between
Her Majesty the Queen, and
Cordelius Harrison
Cordelius Harrison
[2012] A.J. No. 939
2012 ABPC 259
Dockets: 100777747P1-01-001-011, 110065000P1-01-001-003,
110134194P1-01-001-003
Registry: Calgary
Alberta Provincial Court
T.C. Semenuk Prov. Ct. J.
September 7, 2012.
Dockets: 100777747P1-01-001-011, 110065000P1-01-001-003,
110134194P1-01-001-003
Registry: Calgary
Alberta Provincial Court
T.C. Semenuk Prov. Ct. J.
September 7, 2012.
(68 paras.)
Reasons for Sentence
T.C. SEMENUK PROV. CT. J.:--
Introduction
1 The
Accused pled guilty to multiple offences including, two charges of trafficking
cocaine, possession of cannabis marihuana, two charges of breach of
recognizance, conspiracy to commit a robbery/home invasion, and two more
charges of breach of recognizance.
2 The
matter is before the Court for disposition.
3 The
issue is a fit global sentence.
4 For
the reasons that follow, absent time spent in pre-trial custody, the Accused is
sentenced to a global sentence of 36 months' imprisonment.
Facts
5 The
Accused is charged in three separate Informations as follows:
· Information Docket Number ending with 747
Count 1:
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On or about the
8th day of June, 2010, at or near Calgary, Alberta, did unlawfully traffic in
a controlled substance, to wit: cocaine, contrary to Section 5(1) of the
Controlled Drugs and Substances Act.
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Count 4:
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On or about the
8th day of June, 2010, at or near Calgary, Alberta, being at large on his
recognizance entered into before a justice and being bound to comply with a
condition of that recognizance requiring him to 5. You will keep a curfew and
remain in your home or on its grounds between the hours of 9:00 PM and 7:00
AM seven (7) days per week, did fail without lawful excuse to comply with
that condition, contrary to Section 145(3) of the Criminal Code of Canada.
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Count 6:
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On or about the
18th day of June, 2010, at or near Calgary, Alberta, did unlawfully traffic
in a controlled substance, to wit: cocaine, contrary to Section 5(1) of the Controlled Drugs and Substances
Act.
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Count 8:
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On or about the
18th day of June, 2010, at or near Calgary, Alberta, being at large on his
recognizance entered into before a justice and being bound to comply with a
condition of that recognizance requiring him to 1. You will keep the peace
and be of good behaviour, did fail without lawful excuse, to comply with that
condition, contrary to Section 145(3) of the Criminal Code of Canada.
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Count 9:
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On or about the
28th day of June, 2010, at or near Calgary, Alberta, did unlawfully possess a
controlled substance to wit: cannabis marijuana in an amount not exceeding
thirty grams, contrary to Section 4(1) of the Controlled Drugs and Substances Act.
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· Information Docket Number ending with 000
Count 3:
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On or about the
15th day of December, 2010, at or near Calgary, Alberta, being at large on
his recognizance entered into before a justice and being bound to comply with
a condition of that recognizance requiring him to 14. You are prohibited from
buying, having in your possession, using or consuming intoxicating
substances, including alcohol and any drug not prescribed for you by a doctor
or dentist except over the counter medication, did fail without lawful
excuse, to comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.
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· Information Docket Number ending with 194
Count 1:
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On or about the
20th day of December, 2010, at or near Calgary, Alberta, did unlawfully
conspire together, each with the other and others of them, and with some
person or persons unknown to commit the indictable offence of robbery / home
invasion, contrary to Section 465(1)(c) of the Criminal Code of Canada.
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Count 2:
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On or about the
20th day of December, 2010, at or near Calgary, Alberta, being at large on
his recognizance entered into before a justice and being bound to comply with
a condition of that recognizance requiring him to 1) keep the peace and be of
good behaviour, did fail without lawful excuse, to comply with that
condition, contrary to Section 145(3) of the Criminal Code of Canada.
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Count 3:
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On or about the
20th day of December, 2010, at or near Calgary, Alberta, being at large on
his recognizance entered into before a justice and being bound to comply with
a condition of that recognizance requiring him to 5) remain in your home or
its grounds 24 hours a day 7 days a week, did fail without lawful excuse, to
comply with that condition, contrary to Section 145(3) of the Criminal Code of Canada.
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6 The
facts in this case were adduced by way of two written Agreed
Statement of Facts, marked in evidence as Exhibits 1
and 2 as follows:
· Information Docket Number ending with 747 and 000
· The following facts are admitted by the accused, Cordelius Harrison
["Harrison"], without the necessity of calling evidence, pursuant to
Section 655 of the Criminal Code.
· Information 100777747P1:
1.
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On June 8, 2010,
at approximately 11:22 p.m., Calgary Police Service ["CPS'] officer
Constable Chichak, who was acting in an undercover capacity, called a
cellular telephone number, 403-[...]-1125, and engaged in a drug related
conversation. After speaking with an unknown woman, Constable Chichak was
directed to attend at the corner of 24th Avenue and Rundlehorn Drive N.E., in
the City of Calgary, Alberta, and to meet with "a black guy".
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2.
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Constable Chichak
was driving an unmarked police vehicle. At approximately 11:26 p.m., at the
corner of 24th Avenue and Rundlehorn Drive N.E., Chichak, observed a black
man who was later identified to be Harrison.
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3.
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Harrison entered
the front seat of the vehicle being driven by Constable Chichak. Chichak and
Harrison engaged in a drug related conversation. Harrison provided Chichak
with 0.4 grams of a substance later determined to be crack cocaine for the
sum of 100 Canadian dollars.
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4.
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The interaction
on June 8, 2010, was observed by undercover members of the CPS, including
Sergeant Bossley, Constable Christie and Constable Lynch. Harrison was
positively identified in a photographic lineup by Constable Chichak on June
28, 2010.
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5.
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On June 8, 2010,
Harrison was bound by a Recognizance, bearing the identifier Number
090221359P1-01-001, which included, amongst other conditions, the following
condition:
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5.
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You will keep a
curfew and remain in your home or on its grounds between the hours of 9:00
p.m. and 7:00 a.m., seven (7) days per week.
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6.
|
On June 18, 2010,
CPS Constable Krueger, while acting in an undercover capacity called a
cellular telephone number, namely (403) xxx-1125, and spoke to an unknown
male about purchasing $100.00 worth of crack cocaine. She was directed to the
intersection of Rundlehorn Drive and 26th Avenue N.E., in the City of
Calgary, to meet for purposes of obtaining the crack cocaine.
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7.
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At approximately
3:55 p.m., on June 18, 2010, Constable Krueger arrived at the meet location
in a taxi. She called the (403) xxx-1125 number and was told the male would
arrive in a few minutes. At approximately 3:59 p.m., Harrison arrived at the
meet location.
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8.
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Harrison and
Krueger engaged in a drug related conversation and then Harrison provided
Krueger with a substance he held out to be crack cocaine for the sum of $100
Canadian dollars.
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9.
|
Following the
transaction, Krueger, examined the substance and determined that it was not
crack cocaine and in fact, believed to be soap.
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10.
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The interaction
on June 18, 2010, was observed by undercover members of the CPS including
Constable Chichak, Constable Christie and Constable Lynch. Harrison, was
positively identified in a photographic lineup by Constable Krueger on June
28, 2010.
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11.
|
On June 18, 2010,
Harrison was bound by a Recognizance, bearing the Identifier Number
090221359P1-01-001, which included, amongst other conditions, the following
condition:
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1.
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You will keep the
peace and be of good behaviour.
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12.
|
On June 28, 2010,
at approximately 3:54 p.m, members of CPS, acting in an undercover capacity,
were surveilling at a residence located at [...] Rundlehorn Drive N.E., in
the City of Calgary, Alberta. Constable Christie observed Harrison leave the
residence and enter a green 2005 Hyundai Elentra vehicle bearing the licence
plate number [...] 941. Because Harrison was wanted for the drug trafficking
offences that had occurred on June 8, 2010, and June 18, 2010, the vehicle
was followed.
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13.
|
At 4:38 p.m.,
Constable Christie directed uniformed officers, Constable Cumming and
Constable Kennedy to stop the Hyundai vehicle and arrest Harrison for the
drug trafficking offences.
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14.
|
A search of
Harrison, incident to his arrest produced 1.8 grams of marijuana and a
cellular telephone located on the passenger seat in a male shoulder bag.
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15.
|
On June 28, 2010,
Harrison was bound by a Recognizance, bearing the identifier number
090221359P1-01-001, which included, amongst other conditions, the following
condition:
|
5.
|
You will keep a
curfew and remain in your home or on its grounds between the hours of 9:00
p.m. and 7:00 a.m., seven (7) days per week.
|
· Information 110065000P1:
16.
|
On December 15,
2010, at approximately 0:47 a.m., Constable Adaikin observed a red Acura
Integra vehicle with the licence plate [...] 642 enter a parking lot at the
area around 10th Avenue and 4th Street S.W. Calgary, Alberta. The Acura had a
burnt out front head light.
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17.
|
As Constable
Adaikan approached the vehicle, he detected a strong smell of burnt
marijuana. He observed a marijuana cigarette in the front seat middle
console. He arrested the occupants of the vehicle which included Harrison,
who was a passenger in the vehicle. Harrison was noted to smell of alcohol.
Harrison was noted to have an unsteady gait when asked to exit the vehicle.
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18.
|
On December 15,
2010, Harrison was bound by two Recognizances, bearing the Identifier Numbers
090221359P1-01-001, and 100777747P1, which included, amongst other
conditions, the following condition:
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8.
|
You are
prohibited from buying, having in your possession, using or consuming
alcohol, intoxicating or any drug not prescribed for you by a doctor or a
dentist.
|
· Information Docket Number Ending with: 194
· FOR THE PURPOSE of dispensing with the need to call evidence in a
trial or at this sentencing, the Accused and Crown admit to the following facts
to support the guilty plea and for The Honourable Court to pass an appropriated
and just sentence:
1.
|
On October 28th,
2010, the Honourable Justice M.C. Erb, authorized the lawful interception of
Murtaza Mohammad's communications for murder and for conspiracy to robbery
and break and enter. The Authorization expired on December 26th, 2010.
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2.
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On December 19th,
2010, at approximately 22:50:29 MST hours, the Calgary Police Service
intercepted a private communication between Murtazza Mohammad (using cellular
telephone (403) xxx-8261) and Maung Zaw [AKA 'Tizle' or 'Tizo'] and Cordelius
Harrison [AKA "T.J."], using (403) xxx-2368. The following is a
summary of the pertinent portions of the conversation:
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a.
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Mohammad said
that the 'Big Black Guy' [referring to Anthony Merah] has a house for them to
do in the next few days;
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b.
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Harrison said
that he is in and that he will bring some tools. Harrison added that it will
be him, Mohammad, Tizle [Zaw] and Tony [Merah].
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c.
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Harrison said,
everybody's gonna bring a strap, everybody's gonna be strapped ... and he
will make sure everybody has a bullet proof vest just in case.
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d.
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Mohammad said
that there was $20,000 inside the house.
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3.
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"Strap'
means firearm and "strapped" means carrying a firearm.
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4.
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On December 20th,
2010, at approximately 1937 hours, the Calgary Police Service intercepted a
private communication between Murtaza Mohammad using (403) xxx-8261 and
Anthony Merah [AKA "Tony"]. The following is a summary of the
pertinent portions of the conversation:
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a.
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Merah told
Mohammad he would show him the house he was talking about after Mohammad got
off work;
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b.
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Mohammad said
that they will go tonight along with Tizle and TJ. T.J. was trying to look
for some more 'pieces' so they could all go in strapped and bullet proof
vests;
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c.
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Merah said that
four was enough and so no other people were needed.
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5.
|
On December 20,
2010, at approximately 2030 hours the Calgary Police Service intercepted a
private communication between Murtaza Mohamad using (403) xxx-8261 and Maung
Zaw [AKA "Tizle"]. The following is a summary of the pertinent
portions of the conversation:
|
a.
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Mohammad told Zaw
there is a house with $20,000 and shit inside and that is why he needs to get
a hold of T.J. [Harrison], and the four doing the house tonight;
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b.
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Mohammad said he
will get his gun from his car at home and Zaw said, you bring yours, and we
will bring ours just in case.
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6.
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On December 20th,
2010, at approximately 2043 hours, the Calgary Police Service intercepted a
private communication between Murtaza Mohammad using (403) xxx-8261 and Maung
Zaw. The following is a summary of the pertinent portions of the
conversation:
|
a.
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Mohammad told Zaw
the house is in the Northwest and that there might be people inside. Mohammad
further states that they will send T.J. [Harrison] and Tony [Merah] in the
house, but that Mohammad and Zaw will get the money. After further
discussion, they stick to the original plan of all going in, but that if
somebody fucks around he [Zaw] will pull the trigger and Mohammad agreed.
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7.
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On December 20th,
2010, at approximately 2210 hours, Calgary Police watched Murtaza Mohammad
leave his job at the Shell Gas Station and drive in a Honda Odyssey van to
Mike's Billiards on 32nd Ave. N.E., Calgary, AB.
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8.
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At 2240 hours on
the same date (30 minutes later), a red Integra arrived in the parking lot
with a large black male and three unknown males.
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9.
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At 2252, Murtaza
Mohammad got into the back seat of the red Integra. A minute later, Calgary
Police watch the red Integra leave the parking lot and drive in tandem with
the Honda Odyssey van.
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10.
|
Calgary Police
followed the two vehicles until members of the TAC team stopped both vehicles
at 2301 hours at Beddington Trail and Deerfoot Trail N.E. Police believed the
direction would be consistent with the route to be taken to arrive at the
home of Murtaza Mohammad. The vehicles were driving in tandem throughout the
police surveillance to the time of the traffic stop.
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11.
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Driving the Honda
Odyssey van was Murtaza Mohammad and Anthony Merah [Tony] was in the front
passenger seat. Merah was described as a large black male.
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12.
|
Driving the red
Integra, and stopped right in front of the Honda Odyssey van, was Maung Zaw
[Tizle], and in the passenger seat was Cordelius Harrison.
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13.
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Found in the
vehicle was directions to a house in the Northwest of Calgary and two black
and white bandanas.
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14.
|
Harrison was
searched incidental to detention and an air hand gun that looks the same as a
Glock semi-automatic handgun used by the Calgary Police Service was found in
the front of his jacket he wore. Also found on Harrison was a folding knife,
red bandanas and cell phone.
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15.
|
Cordelius
Harrison was bound by two Recognizances at the time of his arrest, under
docket numbers 090221359P1 and 100777747P1. The Recognizances had multiple
conditions that included a curfew condition and prohibition for having a
weapon and firearms prohibitions.
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16.
|
On January 19th,
2011, Anthony Merah was interviewed by Calgary Police Service and gave a full
account of what he and his co-conspirators were intending to do that evening,
which was to break and enter into a home and steal $20,000 and drugs.
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17.
|
Cordelius
Harrison has a criminal record, which is attached, that shows a robbery under
344(b), causing a disturbance and assault in 2007 as a youth, and fourteen
breaches under 145(3) between then and July 12th, 2011.
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7 Sentencing
in this case started with the Court being told that it was being presented with
a joint submission by Crown Counsel and Defence Counsel at the time, P. Flynn.
8 The
joint submission put before the Court was as follows:
· Information Docket Number ending with 747
Count 1 -
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Trafficking
Cocaine
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30 months'
imprisonment
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Count 4 -
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Breach of
Recognizance
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15 days'
imprisonment
|
Count 6 -
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Trafficking
Cocaine
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20 months'
imprisonment
|
Count 8 -
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Breach of
Recognizance
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15 days'
imprisonment
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Count 9 -
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Possession of
Cannabis Marijuana
|
||
30 days'
imprisonment
|
9 The
sentence for each offence to run concurrently, but consecutive to any other
sentence.
· Information Docket Number ending with 000
Count 3 -
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Breach of
Recognizance
|
||
30 days'
imprisonment
|
10 The
sentence imposed is to run concurrently to any other sentence.
· Information Docket Number ending with 194
Count 1 -
|
Conspiracy to
commit robbery / home invasion 6 months' imprisonment
|
Count 2 -
|
Breach of
Recognizance
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||
6 months'
imprisonment
|
Count 3 -
|
Breach of
Recognizance
|
||
6 months'
imprisonment
|
11 The
sentence imposed for each offence to run concurrently, but consecutive to any
other sentence.
12 The
global sentence in this case, absent time spent in pre-trial custody, was to be
36 months' imprisonment.
13 During
the course of submissions made by Defence Counsel, P. Flynn, the Court inquired
if the Accused was a Canadian citizen. The Court was told by Defence Counsel
that the Accused was a permanent resident, originally from Liberia. The Court
then advised Defence Counsel that if the joint submission for a global sentence
of 36 months' imprisonment, absent time spent in pre-trial custody, was
accepted, as a factor in sentencing, the Court may consider that the Accused
would be subject to an automatic deportation order, without a right of appeal,
pursuant to Section 64 of the Immigration and Refugee
Protection Act.
14 In
the subsequent exchange between the Court and Defence Counsel, it became
apparent that Defence Counsel was under the mistaken understanding that it was
the actual sentence resulting,
after time in custody was credited to the Accused, that governed the
application of Section 64 of the Act, and not the effective sentence, absent time spent in pre-trial custody.
15 After
an adjournment was granted so Defence Counsel could consider his position in
law, the Court was asked by Defence Counsel to order a Pre-Sentence Report (PSR),
and adjourn the sentence hearing.
16 During
the course of the adjournment, and prior to the preparation of the PSR, Defence
Counsel tried, unsuccessfully, to have the global sentencing for Provincial and
Federal matters split by other members of this Court.
17 When
the matter was next before this Court, Defence Counsel made the same
application to have the matters split for sentencing purposes. That application
was refused, and the Court was alerted by Defence Counsel that he may be making
a submission, after the preparation of the PSR, that was contrary to the joint
submission already put to the Court.
18 When
the matter was spoken to next, Defence Counsel, P. Flynn, made an application
to withdraw as Counsel of record for the Accused. That application was granted,
and Ms. Przepiorka, appeared as agent for Defence Counsel, R. Snukal, to have
her now come on as Counsel of record for the Accused.
19 When
the matter was spoken to next, Defence Counsel, R. Snukal appeared as Counsel
for the Accused. She advised the Court that the Accused may need the wisdom and
experience of an Immigration lawyer in the circumstances of this case and that
she had communicated with B. Harsanyi, to possibly come on the record as
Counsel for the Accused. She also alerted the Court to the possibility of an
application being made to withdraw the guilty pleas, and the case was
adjourned.
20 When
the case was spoken to next, Defence Counsel, R. Snukal, advised the Court that
both she and B. Harsanyi would appear as co-counsel for the Accused, and there
would be no application made to withdraw the guilty pleas. Rather, the sentence
hearing would resume with Defence Counsel backing away from the joint
submission already made, and reliance placed on the PSR, marked in evidence as
Exhibit 4.
21 The
Court then asked both Crown Counsel, Ms. Spaner and Mr. Parker, if their
position on the guilty pleas on the charges before the Court, and the sentence
to be imposed would change, absent the joint submission. The Court was told
that, despite the backing away from the joint submission by new Defence
Counsel, the Crown's position on the guilty pleas on the charges before the
Court and the suggested global sentence of 36 months', absent time spent in
pre-trial custody, would not change.
Issue
22 There
being no joint submission in this case, the issue is a fit global sentence.
Law and Analysis
Position of the Crown
23 The
Court was referred to the following authorities by Crown Counsel: R. v. Maskill, 1981 A.J. No. 907; R. v. Rahime, 2001 ABCA 203; and R. v. Pham, 2012 ABCA 203.
24 Crown
Counsel submit, that a fit global sentence for all offences, absent time spent
in pre-trial custody, is 36 months' imprisonment.
25 Crown
Counsel submits, that the automatic deportation order, without a right of
appeal, pursuant to Section 64 of the Act, is an intended consequence of sentencing the Accused in this case.
26 Ms.
Spaner, for the Federal Crown, submits that on Counts 1, 4, 6, 8, and 9,
contained in Information Docket Number ending 747, and on Count 3 in
Information Docket Number ending 000, a global sentence under 30 months'
imprisonment, absent time spent in pre-trial custody, would be unfit
considering the circumstances of the offences and the offender in this case.
27 Mr.
Parker, for the Provincial Crown, submits that a fit global sentence on Counts
1, 2, and 3, contained in Information Docket Number ending 194, absent time
spent in pre-trial custody, is six (6) months' imprisonment, consecutive to any
other sentence, having regard to the totality principle.
Position of the Defence
28 Defence
Counsel referred the Court to the following authorities: Rahime, supra ; R. v. Taleb, 2002
ABPC 130; R. v. Shaw 2004 ABPC
217; R. v. Daskalov, 2011 BCCA
169; and R. v. Marshall , 2012
ABCA 160.
29 Defence
Counsel submits, that a fit global sentence on Counts 1, 4, 6, 8, and 9,
contained in Information Docket Number ending 747 and Count 3 in Information
Docket Number ending 000, absent time spent in pre-trial custody, is two (2)
years' less one (1) day imprisonment.
30 Defence
Counsel submit that a fit global sentence on Counts 1, 2, and 3, contained in
Information Docket number ending 194, absent time spent in pre-trial custody,
is between six (6) and fourteen (14) months' imprisonment. Mr. Harsanyi submits
that a sentence of twelve (12) months' in the circumstances of this case would
be fit.
31 The
global sentence for all offences, absent time spent in pre-trial custody, to
run consecutively.
32 Mr.
Harsanyi, on behalf of the Accused, submits that it is at least arguable that
so long as it is clear on the record that if the effective global sentence for the charges contained in each Information does
not exceed two years', the Accused would not lose his right to appeal any
deportation order made pursuant to Section 64 of the Act, despite the fact that the effective global sentence for all offences, absent time spent in pre-trial
custody, would be three (3) years' less one (1) day imprisonment.
Range of Sentence for Trafficking Cocaine
33 It
is well established in Alberta that the starting-point sentence for trafficking
cocaine is three (3) years' imprisonment. See: Maskell and Rahime, supra. The starting-point sentence assumes
the Accused is of prior good character with no prior criminal record. A lesser
sentence that dips into the Conditional Sentence Order (CSO) range may be
justified depending on the circumstances of the offence and the offender and
the aggravating and mitigating circumstances in the case. See: Taleb, Shaw, and Marshall, supra. The sentencing principles of denunciation and deterrence are primary considerations in the sentencing process.
34 I
would note in passing that this Court in R. v.
Hamilton, 2008 ABPC 159, imposed a sentence of 15
months' imprisonment on a youthful, drug addicted Accused on one charge of
possession of cocaine for the purpose of trafficking. The Accused in that case
had a dismal PSR, and a substantial criminal record, including three prior drug
related convictions, two of those involving crack cocaine.
35 I
would also note in passing that this Court in R. v.
Aden 2010 ABPC 220, granted a two years' less one day
CSO to a youthful, first offender, on two charges of trafficking cocaine, the
second charge being a " holding out" scenario, where the Accused
admitted that he honestly believed the substance he held out to the undercover
officer was crack cocaine. He was not just trying to perpetrate a fraud and the
offence was not treated in a far less serious way for sentencing purposes.
· Range of Sentence for Conspiracy to Commit Robbery / Home Invation
36 This
Court is alive to the Decision of the Alberta Court of Appeal, in R. v. Matwiy, (1996) 105 CCC (3d) 251,
wherein the Court at pp. 263 - 264 stated as follows:
· We consider the following features to be the basic, essential
features of a "home invasion" robbery to which this guideline
applies. A mature individual with no prior record,
(a)
|
plans to commit a
home invasion robbery (although the plan may be unsophisticated), and targets
a dwelling with intent to steal money or property, which he or she expects is
to be found in that dwelling or in some other location under the control of
the occupants or any of them;
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(b)
|
arms himself or
herself with an offensive weapon;
|
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(c)
|
enters a
dwelling, which he or she knows or would reasonably expect is occupied,
either by breaking into the dwelling or by otherwise forcing his or her way
into the dwelling;
|
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(d)
|
confines the
occupant or occupants of the dwelling, even for short periods of time;
|
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(e)
|
while armed with
an offensive weapon, threatens the occupants with death or bodily harm; and
|
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(f)
|
steals or
attempts to steal money or other valuable property.
|
The starting-point for sentences for a home
invasion
robbery as we have defined it, should be eight years.
· The use of actual force against the occupants, the causing of
injuries to any of them, a prolonged detention, terrorization, the discharge of
firearms, gang activity or acting in concert with others, prior record for
violent offences, the theft of substantial sums of money or valuable property,
are all considered to be aggravating factors.
· Some examples of mitigating factors might include the youthfulness,
or other circumstances of the offender, a lack of planning, or an early guilty
plea.
· As other cases where this court has established starting-points for
sentences, we have reached this conclusion after considering the increasing
frequency of this type of offence in this community, the need to deter the
accused and others from committing such offences, and the importance of the
denunciation of the offence by the society and the court. Of course, in
deciding on the sentence to be imposed, the sentencing judge will consider not
only the starting-point, but also any aggravating or mitigating circumstances
specific to that case.
37 The
Court appreciates that in this case the charge is one of conspiracy to commit a
robbery/home invasion, but it is to be noted that pursuant to Section 465
(1)(c) of the Criminal Code, the
Accused is liable to the same punishment as that to which an Accused is guilty
of the substantive offence.
38 That
being said, in sentencing for conspiracy to commit robbery/home invasion, Crown
Counsel, Mr. Parker, submitted that given the starting-point for the full
offence is eight (8) years' imprisonment, the general range of sentence in the
authorities has been somewhere between six to eight (6-8) years'. He submitted
that given the full offence was not committed, the sentence for conspiracy to
commit the offence, can be reduced to somewhere between three to four (3-4)
years' imprisonment. Being mindful of the parity
principle, he then drew the Court's attention to a few
recent unreported cases in Alberta, where on a joint submission, the sentences
ranged between fourteen (14) months' and four and half (4 1/2) years'
imprisonment, depending on the role played by the Accused in the conspiracy,
and the other aggravating and mitigating circumstances in the case. He
submitted that in the circumstances of this case, a fit sentence for the
Accused would be fourteen (14) months' imprisonment, however, if that sentence
is to run consecutive to any other sentence imposed for other offences in this
case, it should be reduced to six (6) months' imprisonment, having regard to
the totality principle.
39 I
accept Mr. Parker's analysis in arriving at a fit sentence for the conspiracy
to commit robbery/home invasion offence in the circumstances of this case.
40 I
am fortified in that conclusion by my review and consideration of the range of
sentences imposed for conspiracy to commit robbery/home invasion in the
following authorities not cited by Counsel: R. v.
Binns, 2009 Carswell Ont 8970 (OSCJ); R. v. Dao, 2010 Carswell Ont 5222 (ONCJ); R. v. Rhidar, 2010 Carswell Ont 7454 (ONCJ);
R. v. Tran, 2010 ONCA 471; and R. v. Cromarty, 2010 Carswell Yukon 138
(YKTC).
Immigration Consequences
41 In
Pham, supra, McDonald, J.,
delivering the majority Judgment at paras. 16 - 26, stated as follows:
[16]
|
Parliament has
enacted the Immigration and Refugee Protection Act. That legislation
provides, inter alia, at Section 64 as follows:
|
· 64(1) No appeal for inadmissibility
· No appeal may be made to the Immigration Appeal Division by a foreign
national or their sponsor or by a permanent resident if the foreign national or
permanent resident has been found to be inadmissible on grounds of security,
violating human or international rights, serious criminally or organized
criminality.
· 64(2) Serious criminality
· For the purpose of subsection (1), serious criminality must be with
respect to a crime that was punished in Canada by a term of imprisonment of at
least two years.
[17]
|
As this Court
stated in R. v.
Belenky, 2010
ABCA 98, 477 AR 354 at para 20:
|
· The factor of the collateral consequence of deportation can be given
at most very limited weight. It cannot by itself remove a sentence from what
would otherwise be the appropriate range. At most it can serve to move the
sentence a small amount, nothing more.
[18]
|
In Belenky, this Court allowed the Crown
appeal and increased the sentence to two and one-half years on each count to
be served concurrently, notwithstanding the effects of Section 64 of the
Immigration and Refugee Protection Act upon the appellant.
|
|||
[19]
|
Reference should
also be made to the British Columbia Court of Appeal Decision R.v. Kanthasamy, a 2005 BCCA 135, 210 BCAC 54. In
that case the appellant (who was a permanent resident of Canada but a citizen
of Sri Lanka) had been convicted of a sexual assault and lawful confinement.
He had been sentenced to three months concurrent imprisonment on each count,
which after receiving double credit for the ten and one-half months he had
spent in pre-trial custody, resulted in an effective sentence of two years.
|
|||
[20]
|
On appeal, the
British Columbia Court of Appeal allowed his appeal and substituted for the
sentence of two years that had been imposed, a sentence of two years less a
day, stating that such a variation "... does no violence to the sentence
imposed by the trial judge and avoids an unintended consequence of great
significance" (at para 23).
|
|||
[21]
|
With respect, the
plain and unequivocal language of a statute passed by the Parliament of
Canada cannot amount of "an unintended consequence of great
significance."
|
|||
[22]
|
As the Supreme
court of Canada stated in Medovarski v Canada (Minister of Citizenship and
Immigration),
2005 SCC 51, [2005] 2 SCR 539 at para 46:
|
· The most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in Canada:
Chiarelli v Canada (Minister of Employment and Immigration), [1992] 1 S.C.R.
711, at p.733. Thus the deportation of a non-citizen in itself cannot implicate
the liberty and security interests protected by s. 7 of the Canadian Charter
Rights and Freedoms.
[23]
|
Furthermore, it
would be a strange and unfortunate legal system wherein a non-citizen could
expect to receive a lesser sentence than a citizen for the same crime. No
such distinction should be countenanced.
|
|||
[24]
|
The appellant
abused the hospitality that has been afforded to him by Canada, particularly
in light of the fact that he learned nothing from his prior encounter with
the criminal justice system. It would not be appropriate to fly in the face
of a proper and acceptable joint submission regarding sentence under the
circumstances of this case in order to undermine the provisions of the
Immigration Refugee Protection Act.
|
|||
[25]
|
Given the
appellant's prior convictions, the provisions of the Immigration Refugee
Protection Act cannot amount to "an unintended consequence of great
significance" such as to warrant even the seemingly minor variation to
sentence that the Crown was prepared to concede in this case relating to
these convictions.
|
|||
[26]
|
This Court in R. v. Duhra, 2011 ABCA 165, 505 AR 248 and R. v. Barkza, 2011 ABCA 273, 513 AR 333,
allowed appeals whereby a sentence of two years was reduced to two years less
a day due to the ramifications of the Immigration and Refugee Protection Act.
It is noteworthy to point out, however, that in neither case had the appellant
a prior criminal record. Accordingly, these decisions have no applicability
to the case at bar.
|
Circumstances of the Accused
42 The
Accused's background is fully documented in the PSR. He is now 23 years of age.
At the time of the commission of the offences in this case, he was 20-21 years
of age. He was born in the Republic of Liberia, and has four siblings. As a
result of civil unrest and war in Liberia, his mother brought him and his
siblings to Canada when he was 10 years of age. When he was 16 years of age,
his mother revealed to him that his father had been murdered in Liberia. At the
present time, the Accused has permanent resident status in Canada.
43 After
moving to Canada, the Accused and his siblings were raised by his mother. The
family struggled financially. When the Accused was 13 years of age, he and his
youngest sister were apprehended by Child and Family Services, and he has not
seen her since.
44 The
Accused left home when he was 18 years of age to reside with a friend. At 21
years of age, the Accused moved back to live with his mother.
45 The
Accused has a girlfriend, and they have a four year old daughter together. When
he is not in custody, he supported his girlfriend and his daughter financially.
He has not seen his daughter since being detained in custody. He is still
committed to his relationship with his girlfriend and daughter. Despite his
involvement in the criminal justice system, his mother remains supportive of
him, and she was present in Court throughout the sentence hearing. He also has
a positive relationship with his two older brothers and sister. The Accused
also has the support of Bishop Curtis Daine of the Church of Jesus Christ of
Latter Day Saints, who visited him in custody once every two months.
46 The
Accused has completed grade 10 and some of grade 11. He wants to complete his
high school education, and go on to university for a Bachelors degree in
Business Administration. He has worked in the service industry as shipper
receiver. He has not maintained any steady employment since he was 21 years of
age and detained in custody.
47 The
Accused felt it difficult to adjust to living in Canada. He experienced racism
and was bullied as a youth. He found it difficult to cope without a father and
his youngest sister. At age 15, he began associating with a negative peer group
and skipping school. He also began experimenting with drugs. He first used
marihuana at age 15. At age 18, he started to use cocaine, crack cocaine,
oxycontin and ecstasy. He became addicted to cocaine and oxycontin. He hid his
addiction from his family. He became fixated on obtaining the drugs which
contributed to his criminal behaviour. The Accused comes before the Court with
a substantial criminal record marked in evidence as Exhibit 3 as follows:
Sentencing Principles
48 As
in all sentencing cases, the ultimate disposition for an offender must reflect
on the fundamental purpose and all the principles of sentencing provided for in
Section 718 of the Criminal Code,
and in this case, Section 10(1) of the Controlled Drugs
and Substances Act (CDSA). The sentence must be in
accordance with the fundamental principle of proportionality found in Section
718.1 of the Code. See: R. v. Arcand, 2010 ABCA 263. As well, the
sentence, in accordance with Section 718.2 of the Code, and in this case, Section 10(2) of the CDSA, must account for any relevant aggravating and mitigating
circumstances tailored to fit the individual before the Court.
"Individualized" sentencing, as opposed to "tariff"
sentencing, has been endorsed by the Supreme Court of Canada, in R. v. McDonnell, (1997) 1 SCR 948 and R. v. Proulx, (2000) 140 CCC (3d) 449.
Finally, in accordance with Section 718.2(b), (c), (d) and (e) of the Code, there should be parity in sentencing
similar offenders for similar offences; a global sentence should not be
excessive; the least restrictive sentence should be imposed; and all available
sanctions other than imprisonment that are reasonable in the circumstances,
should be considered.
49 That
being said, the aggravating and mitigating circumstances in this case are as
follows:
· Aggravating Circumstances
As to the charges of
trafficking cocaine, the nature of the drug involved in this case is serious.
Crack cocaine is a very dangerous and highly addictive hard drug. It is
responsible for much derivative property and violent crime in the
community.
The fact of there being
2 separate drug transactions on different dates is aggravating.
The prevalence of this
type of offence in the community, particularly involving the ease of use at
street level dial-a-dope commercial drug trafficking, is aggravating. Although
there is some suggestion in the PSR, and the submissions of Defence Counsel,
that the Accused was addicted to crack cocaine at the time of the offences; I
am not satisfied on all the material presented to the Court during the sentence
hearing that was the case. He was in it for profit.
Pursuant to Sections
10(2)(a)(iii) and 10(2)(b) of the CDSA, there are two statutory aggravating factors in this case. The
Court was told by Crown Counsel that both trafficking offences took place near
Rundlehorn Dr. and 50th Ave., N.E., where three schools are located in the
immediate area. As well, the fact that the Accused comes before the Court with
three prior convictions for designated substance offences, two of them
involving Schedule I substances, and one of those being possession for the
purpose of trafficking cocaine.
Both trafficking
offences took place while the Accused was on bail, bound by two Recognizances
with a curfew condition and condition to keep the peace and be of good
behaviour.
As to the conspiracy to
commit a robbery/home invasion, the nature of the offence is serious. According
to the facts admitted, this was a planned and deliberate offence that was to
occur at night on the date in question. Four individuals, including the Accused,
were to invade a private residence in northwest Calgary, where they expected to
find $20,000 and drugs. Although they did not know for sure if the residence
would be occupied at the time, they were all to be "strapped" with a
firearm, and wearing bullet proof vests.
Although the Accused
was not the "mastermind" behind the offence, he was to provide
"muscle" in the commission of the offence. According to the facts
admitted, when the vehicle occupied by the Accused was intercepted by police on
the way to the residence, the Accused was found to be in possession of an air
handgun that looks the same as a Glock semi-automatic handgun used by the CPS,
as well as a folding knife, red bandana, and cell phone. At the time, the
Accused was on bail and bound by two Recognizances including a curfew
condition, and prohibition from having a weapon, and a firearms prohibition.
The Accused comes
before the Court with a substantial criminal record including related
convictions for robbery, assault, theft and breaching Court Orders.
As to the charge of
possession of cannabis marihuana, I note that the Accused has one prior
conviction for possession of a Schedule II substance in 2010, that being
cannabis marihuana.
The PSR adduced in
evidence in this case is not positive. The Accused has demonstrated by his
record for breaching Court Orders, and committing other substantive offences
while on bail, that he is not a suitable candidate for community
supervision.
· Mitigating Circumstances
As to all charges, the
Accused has entered guilty pleas to the offences.
As to the two cocaine
trafficking offences, I take into account the relatively small quantity and
value of the substance sold. I also take into account the fact that the second
offence only involved a substance "held out" to be cocaine, and that
the undercover officer, following the transaction, examined the substance and
readily determined that it was not crack cocaine and believed it to be
soap.
As to the cannabis
marihuana possession offence, I take into account the relatively small quantity
and value of the substance.
As to the conspiracy to
commit robbery/home invasion, I take into account that the Accused played no
part in masterminding the offence.
I accept the fact that
despite his substantial criminal record, the Accused is still a youthful
offender, and that he has the continued support of his family.
I take into account the
Accused's unfortunate background outlined in the PSR, with his family's escape
from the civil unrest and war torn Republic of Liberia, the murder of his
father in Liberia, and the permanent loss of his youngest sister, after she was
apprehended by Child and Family Services in Calgary. I also take into account
his difficulties in adjusting to life in Canada, and the financial and other
struggles his mother had to endure in trying to care of herself, and her four
children, alone in a strange country.
Pre-trial Custody
50 As
a factor in sentencing, I also take into account the time the Accused has spent
in pre-trial custody. As at the date of sentencing, the Accused has a pre-trial
custody credit of approximately 19 months.
Disposition
51 As
to the two charges of trafficking cocaine, the Court has given much thought and
serious consideration to the submissions of Crown and Defence Counsel both in
terms of the fitness of sentence for these offences, as well as the immigration
consequences that may flow as a result of the Court accepting the Crown
submission.
52 I
have come to the conclusion that any sentence under two (2) years' imprisonment
for those offences in all the circumstances of this case would not be fit
essentially for the same reasons stated by the Alberta Court of Appeal in R. v. Belenky, 2010 ABCA 98.
53 My
Decision in Hamilton, supra, is distinguishable from this case for
four reasons. Firstly, the
Accused in that case pled guilty to a single charge of possession of cocaine
for the purpose of trafficking. Secondly, although the Accused in that case also had three prior drug
convictions, his prior conviction for trafficking, unlike the Accused in this
case, involved a Schedule II substance, cannabis marihuana, not crack cocaine. Thirdly, the Accused in that case was
addicted to crack cocaine at the time of the commission of the offence. Fourthly, the Accused in this case has a more
substantial criminal record.
54 My
Decision in Aden, supra, is also distinguishable from this case
on the basis that the Accused had no prior criminal record.
55 Indeed,
when looking at those cases decided in Rahime, supra, where a
sentence of less than two years' imprisonment was imposed, the individual
Accused had no criminal record, an unrelated Youth Court record, or an
unrelated criminal record.
56 The
fact that the Accused in this case has three related drug convictions, and that
he had already received the benefit of a 12 month CSO for possession of cocaine
for the purpose of trafficking, simply cannot be ignored.
57 This
fact is also significant in so far as this Court's consideration of the
immigration consequences to the Accused.
58 This
case has much in common with the Decision of the Alberta Court of Appeal in Belenky, supra, where the Court found error in the imposition of a sentence of two
(2) years less one (1) day imprisonment and eighteen (18) months' probation on
two charges of trafficking cocaine to avoid the immigration consequences of
Section 64 of the Act. The Accused
had a prior related conviction for trafficking cocaine. The Court increased the
sentence to two and a half (2 1/2) years' imprisonment, because the trial judge
erred in principle by ignoring or giving insufficient weight to the importance
of specific deterrence in the case, and by giving more than nominal weight to
the collateral consequence of deportation that would result from a penitentiary
sentence.
59 Accordingly,
considering the circumstances of the offences and the offender, the fundamental
purpose and all the principles of sentencing, the aggravating and mitigating
circumstances in the case, the Accused is sentenced as follows:
· Information Docket Number ending with 747
Count 1 -
|
Trafficking
Cocaine
|
||
30 months'
imprisonment
|
Count 4 -
|
Breach of
Recognizance
|
||
15 days'
imprisonment
|
Count 6 -
|
Trafficking
Cocaine
|
||
20 months'
imprisonment
|
Count 8 -
|
Breach of
Recognizance
|
||
15 days'
imprisonment
|
Count 9 -
|
Possession of
Cannabis Marihuana
|
||
30 days'
imprisonment
|
60 The
sentence imposed for each offence to run concurrently, but consecutive to any
other sentence.
· Information Docket Number ending with 000
Count 3 -
|
Breach of
Recognizance
|
||
30 days'
imprisonment
|
61 The
sentence imposed for this offence is to run concurrently to any other sentence.
· Information Docket Number ending with 194
Count 1 -
|
Conspiracy to
commit robbery / home invastion 6 months' imprisonment
|
Count 2 -
|
Breach of
Recognizance
|
||
6 months'
imprisonment
|
Count 3 -
|
Breach of
Recognizance
|
||
6 months'
imprisonment
|
62 The
sentence imposed for each offence to run concurrently, but consecutive to any
other sentence.
63 The
global sentence in this case, absent time spent in pre-trial custody, is
thirty-six (36) months' imprisonment.
64 Giving
the Accused credit for 19 months spent in pre-trial custody, the global
sentence is reduced to seventeen (17) months' imprisonment.
65 Pursuant
to Section 109 of the Criminal Code, there will be a Firearms Prohibition Order for life.
66 Pursuant
to Section 487.053(1) of the Criminal Code, a DNA sample will be taken from the Accused prior to his release
from custody.
67 Pursuant
to Section 490 of the Criminal Code, there will be an Order that all offence related items be forfeited
to Her Majesty the Queen.
68 Finally,
there will be no Victim Fine Surcharge in this case.
T.C. SEMENUK PROV. CT. J.
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