NOVA SCOTIA COURT OF APPEAL
Citation: R. v. Butt, 2010 NSCA 56
Date: 20100622
Docket: CAC 321080
Registry: Halifax
Between:
Her Majesty the Queen
Appellant
v.
Robert James Butt
Respondent
Judges: Bateman, Saunders and Beveridge, JJ.A.
Appeal Heard: June 8, 2010, in Halifax, Nova Scotia
Held: Leave to appeal granted and appeal allowed per reasons for judgment of Bateman, J.A.; Saunders and Beveridge, JJ.A. concurring.
Counsel: Timothy A. McLaughlin and Scott Millar, Articled Clerk, for the appellant
Peter Mancini, for the respondent
Reasons for judgment:
[1] Robert James Butt entered a guilty plea to one count of possession of cocaine for the purpose of trafficking contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, as amended (“CDSA”). He was sentenced to serve a prison term of 3.5 years. The Crown says the sentence is inordinately low and seeks leave to appeal. The judge’s reasons on sentencing are reported at 2009 NSSC 350.
[2] In September of 2007 the authorities intercepted a package originating in British Columbia and destined for Mr. Butt’s home address. It contained two one-kilogram bricks of cocaine of significant purity. A search warrant executed at Mr. Butt’s home located an additional 196 grams of powdered cocaine and two similar empty parcels from British Columbia as well as packaging and a safe. The bulk value of the cocaine was between $70,000 and $100,000 with a street value of twice that amount. He was charged with two counts of possession for the purpose of trafficking (s. 5(2) CDSA) and one count of conspiracy to possess for the purpose of trafficking (s. 465(1)(c) Criminal Code).
[3] Mr. Butt was not represented by counsel at the sentencing but was assisted by a sentencing brief prepared by his former lawyer. He told the judge he was simply a middle-man providing an address for shipment of the cocaine but not otherwise involved in the distribution. He said he was paid for his services in drugs for his personal use. According to information he provided for the pre-sentence report he had a 20 year history of substance abuse, progressing from soft drugs to a full-blown cocaine habit. He had been treated for non-Hodgkin’s lymphoma in 2000 and was still monitored annually. He told the report writer that his physical health was good.
[4] Mr. Butt told the judge that he had “changed his life drastically” in the two years awaiting trial on these charges. He said he had become and stayed drug free and was receiving counselling for issues in his life. It was his plan to upgrade his education and take a marine course in Cape Breton - if the conditional sentence he was seeking was granted.
[5] Although in the sentencing brief presented to the trial judge the Crown had suggested a range of 4 to 5 years incarceration, at the hearing the Crown attorney revised that recommendation to 5 to 6 years, taking into account Mr. Butt’s circumstances. The Crown emphasized the following factors:
• Mr. Butt, 35 years old at the time of the offence, was not a youthful offender;
• There was a substantial amount of cocaine involved;
• That the quantity of drug evidenced that he was a trusted associate of those operating at the higher levels of the drug trade;
• Mr. Butt’s record showed that he has been continuously involved in criminal activity with convictions running from 1990 through to 2009, for which he had received both custodial and non-custodial sentences;
• He had a prior drug conviction in 2001 for which he had received a conditional sentence, possibly due to his health situation at that time;
• Denunciation and deterrence are paramount features in drug sentencing for anyone involved in drug distribution.
[6] The judge imposed sentence after a short adjournment. His oral reasons are brief. He observed that, while Mr. Butt was a trusted cog in the supply chain, he was not directly involved in the retail distribution. Significantly, he said: “I believe everything that Mr. Butt said to me today.” The judge apparently accepted that Mr. Butt had turned his life around, was regularly employed, had practical plans to advance his education and was drug free. None of these assertions was seriously challenged by the Crown.
[7] It appears from his sentencing remarks that the judge believed Mr. Butt continued to receive chemotherapy for the non-Hodgkin’s lymphoma. Clearly that is a mistake. The diagnosis was in 2000 and the only reference to treatment was the monitoring by annual blood tests. In the pre-sentence report Mr. Butt said that his health was good.
[8] No information was provided by Mr. Butt about how he had achieved sobriety after so many years of addiction. While he professed an intention to take a course in the “marine industry in Cape Breton”, there were no details.
[9] In light of the inconsistent range of sentence proposed by the Crown in its written and oral submissions, there appears to have been confusion in the judge’s mind about the Crown’s sentencing recommendation, as is evident from the reasons reproduced below.
[10] Mr. Butt’s medical situation and his assertion that he had changed his life were clearly central to the sentence imposed. These features coupled with the judge’s understanding of the range suggested by the Crown obviously resulted in the 3.5 year sentence. The judge said:
[13] Mr. Butt's health and his efforts toward rehabilitation might, in some circumstances, go toward a sentence under two years, but not in these circumstances. The criminal record, the quantity of drugs, and the position held by Mr. Butt in the middle of the cocaine business call for a much more serious penalty.
[14] I see good grounds for imposing a four to five year sentence as submitted by the Crown. Mr. Butt's illnesses and his turn‑around under the duress of the charges against him incline the court toward a slightly shorter sentence that might see Mr. Butt's return more quickly to employment, containing his addiction or his tendency to it, and getting into the marine field or some other more productive line of work.
(Emphasis Added)
[11] This Court requested an update on Mr. Butt’s circumstances since his sentencing on November 17, 2009. Apparently on May 27, 2010 Mr. Butt was sentenced for a number of offences committed after he was charged with the within drug offence:
• Offence date: June 14, 2008 ‑ s. 145(3) failure to comply with condition ‑ 15 days consecutive;
• Offence date: June 14, 2008 - s 245(5) refusal - $1000 fine or 15 days concurrent;
• Offence date: December 7, 2008 s.129(a) resisting/obstructing a police officer - 90 days consecutive;
• Offence date: December 7, 2008 - s.270(1)(a) assaulting a police officer - 90 days concurrent;
• Offence date: October 10, 2009 - s. 267(b) assault causing bodily harm - 90 days consecutive;
• Offence date: October 10, 2009 - s. 145(3) failure to comply with conditions - 45 days concurrent.
[12] These pending charges were not raised by the Crown at the time of sentencing because convictions had not yet been entered. The judge was unaware of their existence. However, Mr. Butt clearly knew he was facing additional charges having committed new offences since being charged with the possession of cocaine for the purpose of trafficking. His representation to the judge that he had turned his life around was simply not true. He continued to offend up to the month before sentencing.
[13] I would agree with the Crown that cocaine has consistently been recognized by this Court as a deadly and devastating drug that ravages lives. Involvement in the cocaine trade, at any level, attracts substantial penalties (see, for example, R. v. Conway, 2009 NSCA 95; R. v. Knickle, 2009 NSCA 59;R. v. Steeves, 2007 NSCA 130; R. v. Dawe, 2002 NSCA 147; R. v. Robins, [1993] N.S.J. No. 152 (Q.L.)(C.A.); R. v. Huskins, [1990] N.S.J. No. 46 (Q.L.)(C.A.); and R. v. Smith, [1990] N.S.J. No. 30 (Q.L.)(C.A.)). It is significant that the CDSA classifies cocaine as one of the drugs for which trafficking can attract a life sentence.
[14] Appellate courts afford a high level of deference to sentencing decisions (R. v. C.A.M., [1996] 1 S.C.R. 500). However, with respect, I am satisfied that three factors here drove the judge to impose a sentence that was manifestly below the appropriate range for an offender operating at this level of the drug trade: (1) not knowing of the additional offences, the judge believed Mr. Butt’s assertion that he had reformed over the two years since being charged with the possession for the purpose offence; (2) the judge was mistaken about Mr. Butt’s health situation; and (3) he understood the Crown to be suggesting a sentence in the 4 to 5 year range.
[15] I would therefore set aside the sentence imposed. Taking into account, in particular, the fact that the drug involved is cocaine; the substantial amount of the drug; Mr. Butt’s lengthy prior record which includes a drug conviction; and the need for deterrence both general and specific, I would impose a sentence of five years incarceration, as suggested by the Crown on appeal. The lifetime firearms prohibition and order for a DNA sample were not appealed and shall remain as ordered by the sentencing judge.
Bateman, J.A.
Concurred in:
Saunders, J.A.
Beveridge, J.A.