IN THE PROVINCIAL COURT OF NOVA SCOTIA
Citation: R. v. Atwell, 2007 NSPC 60
Date: 20070507
Docket: 1702318, 1702319, 1702320
Registry: Kentville
Between:
Her Majesty the Queen
v.
Dana Rodney Atwell
Judge: The Honourable Judge Alan T. Tufts
Heard: May 7, 2007, in Kentville, Nova Scotia
Charge: 7(1) CDSA
5(2) CDSA
86(3)(b) CC
Counsel: David Greener, for the Federal Crown
Darrell I. Carmichael, for the Provincial Crown
Brian Vardigans, for the defence
By the Court (orally):
[1] Dana Rodney Atwell is to be sentenced for three offences under section 7(1) and 5(2) of the CDSA and s. 86(3) of the Criminal Code.
[2] The offences under the CDSA relate to a marihuana grow operation in the basement of the home of the offender and his wife located on the Gospel Woods Road on the North Mountain here in Kings County. I understand that the home is a modest bungalow-style residence in a rural area of the county.
[3] The offence under s. 86(3) is unrelated to the drug offences. The Provincial Crown Attorney was very clear in his submissions in this regard. The guns were located in the attic and were not properly trigger locked or stored. Ordinarily, the Crown attorney submits, that this could be dealt with by the imposition of a fine and I will return to this later.
[4] The primary issue here is whether the sentence imposed for the drug offences should be a period of imprisonment in the community or in jail. The Crown argues for a period in jail of 1-2 years. The defence asks for a conditional sentence.
The Offences
[5] The offender operated a marihuana grow operation. There were approximately 40-60 plants in various stages of growth. The pictures showed approximately 20 or 30 seedlings on a “grow table”. Other photos showed a number, perhaps 10-12, or as many as 20, mature plants in a 2nd room. Finally, other photos showed a small number of “harvested plants” hanging or drying and three grocery-type bags in a fridge (3kgs.) which I understand contained “bud” or the more potent portion of the plant. In the Pre-sentence Report the offender admits that he was growing the marihuana to make “quick money” to improve his home.
[6] Apparently the offender was selling drugs in larger lots. He was not a “street dealer”. However, it is not clear whether he was selling to other “dealers” or simply to bulk users. There is no evidence that this was part of a larger organization of drug distribution. The Crown attorney indicated that the offender was not on the “police radar”. The Pre-sentence Report suggests that he was not previously known to the police.
[7] The offender was a regular user of marihuana. There were no score sheets or debt sheets or large amounts of cash found or other paraphernalia indicating a “large” operation. There were notes showing timing schedules for the lights necessary for the grow operation. Most importantly, there is no evidence of the value of drugs seized or the potential street value of the drugs in either large or small amounts. Nor is there any evidence of the value of the offender’s set up, the apparatus, if you will. I cannot conclude that this was a “sophisticated” operation as that term has been used in the authorities.
[8] It appears to me that he was most likely selling to other individuals who used the substance regularly and were buying in bulk. In any event, the operation had a “commercial” aspect to it, albeit not large. It was of course carried out in a planned and deliberate manner - this goes without saying.
The Offender
[9] The offender is 24 years of age. He is married. He and his wife have a six-year-old (hers from a previous relationship) and his wife is currently expecting a child.
[10] The offender is employed with a local company, on a seasonal basis and he is currently employed. He was described in the Pre-sentence Report by his supervisor as an “excellent worker”. His counsel says that if he is incarcerated in jail he will lose his house and be financially ruined. The Comptroller testified today, he spoke highly of the offender and confirmed his present employment and that it will continue most likely to next winter. He has been the subject of a Pre-sentence Report. In my experience as a trial judge, this is a very positive report. It appears that this offender does not associate with other known criminals. He has no criminal record. He does not live a lifestyle which otherwise brings him into conflict with the law - except of course this very serious ongoing offence, or at least it was ongoing. I have been given four letters of reference from members in the community who attest to his good standing in the community and also attest to his remorse relative to these offences.
[11] He expressed regret for the commission of the offence. He recognized the harm drugs have on society and he appears to be prepared to accept the consequences of his actions. In my opinion, he is remorseful and shows insight into the impact his criminal conduct has on society . The writer of the Pre-sentence Report, concludes by saying,
Mr. Atwell has no other previous convictions and has not been known as a matter of concern to the Police, nor is he known to associate with persons of a criminal lifestyle. The subject is known as a hard-working individual who is gainfully employed and is attempting to support a young family. Considering these things, this writer is prepared to recommend Dana Atwell as a suitable candidate for community supervision.
Law on Sentencing
[12] The purpose, objective and principles of sentencing are set out in s. 718, 718.1 and 718.2 of the Criminal Code and in s. 10 of the CDSA. None of the aggravating factors in s. 10 apply. I have on other occasions expounded on the law of sentencing: see R. v. Martinez 2007NSPC9 and R. v. Nicoll 2005NSPC15. I do not believe it is necessary to simply repeat those passages here as counsel is well aware of what those principles, objectives and purposes are.
[13] Clearly, the primary purpose of sentencing is the protection of society. The primary objective in drug offence sentencing is general deterrence and denunciation. The principles of proportionality, parity and restraint apply in all sentences. They are codified in the Criminal Code sections that I referred to above.
Proportionality
[14] This is a serious offence. Obviously this was an ongoing operation—not a “one shot deal”, if you will. It was done for profit. I cannot describe it however as “large or major or sophisticated” as these terms were used in other cases. This does not appear to be part of a larger “enterprise”. The offender does not appear as an otherwise anti-social person. He is not associated with or on the fringes of other criminal activity. He and his wife both presented as youthful and perhaps naive about the seriousness of their conduct. This is very apparent now that he has a clear insight into the seriousness of the matter.
[15] Roscoe, J. sets out some of these factors in R. v. Jones 2003 NSCA 48 at para 8 which touch on the degree of seriousness:
Sentences for possession of narcotics for the purposes of trafficking imposed by this court ov er the last 25 years have consistently been largely influenced by the quantity of drugs inv olved ad the function or position of the offender in the drug operation. Other factors considered either more or less relevant, depending on the circumstances, are the criminal record and age of the offender, whether he was on probation at the time of the offence, and the sophistication and scope of the enterprise. ...
Parity
[16] The main thrust of the Crown’s submissions is that the decisions of our Appeal Court support a period of imprisonment in jail. In this regard the Crown refers specifically to R. v. McCurdy 2002 NSCA 132, R. v. Shadlock, infra, R. v. Collette [1999] N.S.J. No. 190 and R. v. Connolly [1998] N.S.J. No. 375 specifically. Cases from other provinces were also referred to.
[17] In all these cases the Nova Scotia Court of Appeal either rejected a conditional sentence or upheld a jail sentence for marihuana trafficking or possession for the purpose of trafficking.
[18] To properly evaluate these cases and to apply the principle of parity it is necessary to examine these cases in more detail.
[19] Let me begin with R. v. Connolly, supra, a fourteen month term of imprisonment was imposed and upheld on appeal. That case involved a “large” indoor marihuana grow operation. The value of the drugs involved was estimated at $1.14M. The offender had a prior criminal record. In my opinion this case does not compare favourably with the case at bar.
[20] R. v. Collette, supra. This case involved drugs found in the trunk of the offender's car valued at approximately $200,000. The others involved were sentenced to 3 years which the Nova Scotia Court of Appeal described as an important factor in rejecting a conditional sentence. The Appeal Court emphasized the need for parity amongst the co-offenders. In that case the court imposed a period of three years in custody. In my opinion this case does not compare to the one at bar.
[21] R. v. Shadlock, 2000 NSCA 120 involved drugs valued at approximately $100,000–214 plants growing in a field. The Nova Scotia Court of Appeal showed deference to the trial judge in upholding a period of custody in jail. Again, Roscoe, J. concludes as follows:
The conclusion that incarceration was necessary to denounce the conduct of cultivating marijuana in that community and deter others from similar operations is not one with which we can interfere and substitute our opinion. [emphasis added]
The court upheld an eighteen month sentence in jail.
[22] Finally, in R. v. McCurdy, supra, another decision of our Court of Appeal a three year sentence was imposed. That case involved a marihuana grow operation at three different sites. The offender was part of a group of co-conspirators. There were 500 plants and 10 growing tables. The Nova Scotia Court of Appeal found this case analogous to Collette, Shadlock and R. v. Su [2000] B.C.J. No. 1816 (another case from the British Columbia Court of Appeal relied on by the Crown - involving drugs valued at $100,000.). Clearly this case is much more serious in my opinion than the one at bar.
[23] These cases can be distinguished from the case before the Court today – based primarily on the quantity of the drugs and the size and sophistication of the drug operations.
[24] Having said that, it is clear from these cases that the Court must give particular emphasis to general deterrence – all the authorities point to this. The issue here is simply as I put to the Crown Attorney earlier is whether a conditional sentence can provide this.
[25] It is implicit, I believe, in counsel’s submissions that the other prerequisites for the imposition of a conditional sentence have been met — that is the range of sentence is below 2 years, that is a provincial sentence is the range, there is no minimum sentence for this offence and this offender is not, in my opinion, a danger to the community. This is clear from the Pre-sentence Report and in the submissions that counsel have made today and earlier. The only issue is whether a conditional sentence could meet the fundamental purpose and principles of sentencing as required by the conditional sentence regime. In short, can the objectives of general deterrence and denunciation be met by a conditional sentence using the principles of sentencing I referred to above.
[26] In R. v. Wheatley, [1997] N.S.J. No. 173 and R. v. Frenette, 159 N.S.R. (2d) 81, the Nova Scotia Court of Appeal upheld conditional sentences for drug trafficking and possession for the purposes. I recognize that both of those decisions were prior to the amendments to the conditional sentencing provisions, however, in each case the Nova Scotia Court of Appeal recognized the need for deterrence which is repeatedly emphasized in the authorities in those cases.
[27] I need not describe the cases in detail as counsel are well aware of them. The case at bar, in my opinion could not be described as having any more aggravating features than Frenette. Notwithstanding that Frenette and Wheatley were both decided prior to the amendments they are both useful authorities in my opinion.
[28] Finally, I want to say something about conditional sentences. It is not necessary for me to repeat, at length, what I said in R. v. Nicholl, supra. It has been referred to earlier today. Conditional sentences are not lenient sentences. In R. v. Wheatley, supra, Matthews, J.A. said,
¶ 22 A conditional sentence is punitive. It is a sentence of imprisonment to be served in the community for the full term with conditions as set by a sentencing judge which significantly restrict the liberty of the offender... With respect to those who may hold a contrary opinion, it should not be considered a “soft” penalty.
[29] A conditional sentence can provide general deterrence, see R. v. Proulx [2000] S.C.J. No. 6. Even where the emphasis on denunciation and deterrence is required conditional sentences can provide that, see R. v. K.R.D. [2005] N.S.J. No. 25—this is not a drug case but a sexual assault of a child where clearly denunciation and deterrence are particularly emphasised. Those subject to conditional sentences are not free. Their liberty is substantially restricted—they can be jailed for breaching any of the conditions imposed “upon the balance of probabilities”, not the criminal standard. They are not unlike those offenders who are on parole. Those offenders like those serving conditional sentence are serving a sentence of imprisonment.
[30] The mass media describes it as “getting house arrest”. A conditional sentence order is a term of “imprisonment”—s. 742.1 says this clearly. While one of the many terms of a conditional sentences will most often include house arrest it is still is a term of imprisonment. Accordingly, it carries the commensurate level of stigma and restriction to liberty.
[31] A conditional sentence in appropriate circumstances does provide the necessary deterrence and denunciation. As Justice Matthews said in Wheatley, it is not a “soft” or lenient sentence.
[32] Accordingly, for this offender in these circumstances and given the various factors I referred to above I am satisfied that imprisonment in jail is not necessary to denounce this conduct in this “relatively small” community. I use these words because those are the same words that Chief Justice MacDonald used in R. v. K.R.D. , supra. That is, it is not necessary to impose jail to deter others from similar conduct. A conditional sentence order can achieve these same objectives.
[33] Accordingly, the sentence imposed will be a period of two years less a day and the offender will be subject to one year house arrest.
[34] With respect to the matter under s. 86(3) in my opinion this matter can be disposed of by the imposition of a fine. In my opinion the fine should be $ 350.00 together with victim surcharge of fifteen percent.
[The Court continues and sets out the particulars of the conditions included in the conditional sentence order and imposes prohibition and forfeiture orders]
____________________________
ALAN T. TUFTS, J.P.C.