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PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Pitts, 2011 NSPC 60
Date: 20110906 Docket: 2245450 Registry: Sydney Between:
Her Majesty the Queen
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Shawn Joseph Pitts
DECISION
Judge: The Honourable Judge Jean M. Whalen, J.P.C.
Heard: September 6, 2011
Charge: Section 5(2), Controlled Drugs and Substances Act
Counsel: David Iannetti, for the Crown Alan Nicholson, for the Defence |
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[1.] This is the sentencing decision for Shawn Joseph Pitts. The facts are as follows. As a result of a police investigation into the drug trade, Mr. Pitts and his home were put under surveillance. Subsequently, the police obtained a search warrant. People were seen coming and going from his home. Mr. Pitts left the house with a male in a car and this car was stopped.
[2.] As well, the search warrant was executed at the residence. Police seized a scale, safe, bag with cocaine money and 40 grams of cocaine. Mr. Pitts was searched incident to arrest, he was then taken to hospital and then to lock up. Mr. Pitts had $540.00 in twenty dollar bills on him and these tested positive for cocaine.
[3.] Mr. Pitts said he had 98 grams earlier in the day but sold a number for approximately $240.00. He also said he was selling to get money to go to Ontario. I note that the pre-sentence report says he was motivated to get money for Christmas.
[4.] The Crown said he was selling for a year; however, Mr. Pitts disputed that saying three or four weeks. The Crown did not call any evidence to prove otherwise and therefore I accept Mr. Pitts’ version of that fact.
[5.] With respect to aggravating factors, the amount of drugs (it was 40 grams of cocaine), the type of drug (cocaine), his previous unrelated record. Mr. Pitts admitted to selling drugs. Mr. Pitts had sold some earlier in the day. These drugs were seized from his residence where his wife and two children live. I would describe Mr. Pitts as a low to mid level petty retailer because of the amount. Mitigating factors are a change of plea and no evidence that the defendant had ever been involved in selling drugs before.
[6.] The pre-sentence report states Mr. Pitts is 31 years of age. He has been in a relationship with Ms. Haggett for 12 years and they have two children. It is her opinion that Mr. Pitts was influenced by a third party and motivated by a chance to make money for Christmas.
[7.] Mr. Pitts’ counsel states this as well, that his motivation was to get money for Christmas, although I indicated earlier that in his statement to police he said he was doing it to get money to go to Ontario.
[8.] Mr. Pitts quit school in grade ten. He has some history of gainful employment; however, he is currently unemployed due to a disability, particularly diabetes.
[9.] Dr. Ignacio describes Mr. Pitts as a brittle diabetic and says he also suffers from high cholesterol. There was an early history of alcohol and drug abuse. I would note that some of the ambulance reports supplied to the Court indicate that Mr. Pitts was intoxicated upon their call to the home. Dr. Zwicker indicates that Mr. Pitts does not appear to have insight into his condition and does not do well at recognizing patterns that affect his diabetes. He appears to lack judgment in the management of his own health. The probation officer writes that all sources contacted confirmed that the offender’s health issues are concerning.
[10.] The defendant has a record; 2005 for mischief; 2001, a 334(b); in 2001, a breach of probation; and in 2000, a 264.1(1)(a), a s. 88 and a 348(1)(b) and a 733, as well as an outdated Youth Criminal Justice Act record.
[11.] The Crown is seeking a two year federal sentence and cites R. v. Knickle opining that Mr. Pitts’ diabetes is not an exceptional circumstance to consider. Ms. O’Leary supplied me with correspondence from Correctional Services of Canada outlining what medical services would be available to the defendant. In particular:
“Dear Theresa M. O’Leary,
Correctional Services Canada provides Health Services to many Diabetic offenders. There is a physician on site twice per week and on call sixteen hours per day. There are Registered Nurses on staff sixteen hours a day and offenders are checked by Correctional staff (who are trained in First Aid), hourly during the eight hours there are not medical staff on site. We also have a dietician who visits weekly. Insulin dependent diabetics come to Health Services to receive their insulin. If you have any further questions or concerns please don’t hesitate to call me.”
[12.] Mr. Nicholson argues that Mr. Pitts’ illness is an exceptional circumstance. He is unable to work because of his diabetes. During the first interview for the pre-sentence report, it had to be stopped because his blood sugar had dropped and he became confused. Mr. Pitts’ spouse works outside the home and indicates that he is the sole caregiver of the children. His wife is disappointed and surprised, but is supportive of Mr. Pitts. Mr. Nicholson says Mr. Pitts has no outstanding matters, no breaches of his release order and he is no danger to the public.
[13.] The Court received eight invoices for Emergency Health Service (EHS) between May 1, 2009 and September 22, 2010. Mr. Pitts says his refusal to go with the paramedics is because of the added cost of being transported hospital which his family cannot afford. There was also one invoice from 2003, two from 2005 and one from 2002, one from 2009, and three from 2010. There were 16 patient care reports that had been prepared by the EHS. I would note that on a number of occasions the defendant was drinking and refusing to take his insulin or not eating.
[14.] What is an appropriate sentence for this defendant?
[15.] It is a basic theory of punishment that the sentence imposed bear a direct relationship to the offence committed. It must be a fit sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender deserves the punishment received and feel confidence and fairness in the rationality of the system. To be just, the sentence imposed must also be commensurate with the moral blameworthiness of the offender. A sentence that is not just and appropriate produces only disrespect for the law. These common-law principles have been codified in sections 718, 718.1 and 718.2 of the Criminal Code.
[16.] Parliament has codified a number of other important values to help sentencing judges give effect to the fundamental principles of proportionality. The articulated principles however, are general in form, and moreover they provide no mechanism for resolving the inevitable conflicts that arise between these various principles in individual cases. Sentencing judges are simply told to weigh and balance the competing principles and fashion an appropriate sentence.
[17.] In crafting the appropriate sentence the Court must have regard to the factors set out in the Code as well as the nature of the offence committed and the personal circumstances of the offender. According to the Supreme Court of Canada, the appropriate sentence will also depend on the circumstances of the community in which the offence took place.
“It must be remembered that in many offences there are varying degrees of guilt and it remains the function of the sentencing process to adjust the punishment of each individual offender accordingly.
The appropriate sentence for the specific offender and offence is therefore determined, having regard to the compendium of aggravating and mitigating factors present in the case. It is the weight attached to the aggravating and mitigating factors which shape and determine the sentence imposed and this is an individual process. In each case the court must impose a fit sentence for this offence in this community.
The nature and gravity of the offence is properly the central factor in sentencing. It is and must be the first rule that prompts the court. The concern behind this consideration is that there should be a just proportion between the offence committed and the sentence imposed. Our basic notion of fairness demands that every sentence be primarily and essentially appropriate to the offence committed having regard to the nature of the crime and the particular circumstances in which it was committed.”
[18.] Other common law principles of sentencing must also be appropriately applied. In the end, the punishment must be proportionate to the moral blame-worthiness of the offender. The public must be satisfied that the offender deserved the punishment received and must feel a confidence and fairness and rationality of the sentence. This principle of proportionality is fundamentally connected to the general principle of criminal liability which holds that the criminal sanction may be imposed only on those who possess a moral culpable state of mind. The cardinal principle is that the punishment shall fit the crime.
[19.] The Crown wants two years federal custody. The Defendant argues that Mr. Pitts should receive two years less a day and serve that sentence in the community under a conditional sentence order, followed by probation. I note this is not a joint recommendation.
[20.] The first part of the test is whether or not jail is an appropriate sentence in the circumstances, and if so, should it be two years less a day, which would make Mr. Pitts eligible for a conditional sentence order. There is no minimum term requirement.
[21.] The second part of the test is that the Court must be satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in the Code.
[22.] The essence of a conditional sentence is that the offender who otherwise would serve up to two years in prison may instead remain in the community for the entire duration of the sentence, provided that he or she abides by the conditions of a conditional sentence order.
[23.] The safety of the community is primary and only if the Court is satisfied that the safety of the community would not be endangered by a conditional sentence order are the other fundamental purposes and principles of sentencing to be considered.
[24.] The issue of safety is confined to concerns that are specific to the offender and general deterrence must not be considered as a factor in determining safety.
[25.] In order to determine whether the safety of the community will be placed at risk by a conditional sentence, the judge must consider both the risk that bound by conditions and given supervision, the offender will re-offend; and the amount of harm both physical or psychological and economic that is likely to occur if the risk accrues. If the judge determines there is a real risk of re-offending, then a conditional sentence cannot be imposed. Even when the risk of recidivism is minimal, a small risk of a very harmful offence will preclude a conditional sentence.
[26.] Is jail appropriate? If yes, what is the range for this type of offence ? If it is two years less a day, than I can go on to consider the second test and whether or not there are any exceptional circumstances of Mr. Pitts.
[27.] The court must consider the case in R. v. Knickle. At paragraph 16, the first step of the analysis is a consideration of the appropriate range of the sentence for the offence. At paragraph 17, the Court of Appeal states:
This court has consistently categorized drug traffickers based on the type and amount of drug involved and the level of involvement in the drug business to assist in placing him within the range.
[28.] At para. 18 of Knickle, supra, the Court of Appeal states:
Numerous other sentencing decisions from this court repeatedly and consistently emphasize that persons involved in trafficking in cocaine will be subject to sentences of incarceration. This has been absolutely clear since the very first case heard by this court involving trafficking in cocaine. This court has never approved or endorsed a conditional sentence on charges of possession for the purpose of trafficking or trafficking in cocaine.
…
The importance of deterrence in sentencing cocaine traffickers must again be endorsed and reiterated as indicated by this court recently in Steeves:
This court has been steadfast in emphasizing that deterrance is a primary consideration in sentencing for drug offences.
[29.] Chief Justice Clarke went on to say:
The position of this court, repeated in many of our decisions since Byers, is that there are no exceptional circumstances where cocaine is involved. We are persuaded that general deterrence must be prominently addressed if the public is to be protected from the nefarious trade that has developed in this drug that is so crippling to our society.
[30.] At para. 19:
Trafficking in cocaine, or its possession for the purpose of trafficking, has traditionally attracted a federal term of incarceration. In R. v. Dawe, [2002] N.SJ. No. 504, this court confirmed that a penitentiary sentence is the norm in Nova Scotia in cases involving trafficking cocaine. There the appellant had been sentenced to 15 months incarceration on charges of possession of four grams of cocaine, 200 grams of hashish and 225 grams of marijuana for the purpose of trafficking, to be served concurrently. Hamilton J.A. for the court, at 6 wrote:
The appellant has not satisfied us that the sentence is demonstratively unfit. To the contrary, the sentence is, if anything, unduly lenient. Possession of cocaine for the purpose of trafficking typically results in sentences of two years or more, as the judge pointed out.
[31.] As noted above, this court has never wavered in expressing these principles in cocaine trafficking cases. Another example is found in McCurdy at paras. 15 and 16:
This Court has indicated several times that in cases of drug trafficking, deterrence will be the primary consideration.
Although it is not necessary that the length of sentence be precisely proportionate to the quantity of drugs involved, commercial distributors and growers require “materially larger” sentences than the petty retailer, as stated in R. v. Fifield (1978), 25 N.S.R. (2d) 407 at para.8. There was no question in this case that the respondent was motivated by financial gain and that the operation was a well established, sophisticated, large-scale commercial venture. These are all aggravating factors.
[32.] At paragraph 28 in R. v. Knickle, the Court of Appeal states:
In this case the sentencing judge erred in principle by imposing a conditional sentence to be served in the community. The range of sentencing for a higher level retailer of cocaine starts at two years in penitentiary. It does not include two years less a day or any other sentence that is available to be served in the community. The judge erred in excluding the penitentiary term in the first stage and it was not necessary to consider the second stage of the Proulx analysis. There are no extraordinary or exceptional circumstances in this case that deserve any consideration of the possibility of deviation from the normal range of sentence. The sentence is excessively lenient and demonstrably unfit. It was, as mentioned above, also an illegal sentence because conditional sentences are only available for sentences of less than two years.
[33.] At paragraph 29, the Court of Appeal goes on to say:
The jurisprudence reviewed above, including Carvery, Steeves, Sparks, Jones, Dann and McCurdy, dictates that the principle of deterrence must be emphasized. In order to give effect to the principle of proportionality, and taking into account the seriousness of the offence, given the large amount of cocaine involved, and other aggravating circumstances such as the presence of improperly stored weapons in the residence where teenage children were living, it is necessary to impose a sentence of incarceration at least in the middle of the range.
[34.] Defence counsel supplied the Court with several cases wherein the courts imposed a conditional sentence order. In R. v. Haley, 2008 (NBQB) 58, the Defendant pled guilty to possession pursuant to section 4(1) of the Controlled Drugs and Substances Act. It was oxycontin. He had sixty 40 mg pills. He was a first time offender with a permanent disability of chronic pain and mental health issues. There was a joint submission for a disposition of 12 months conditional sentence order and $1,000 fine.
[35.] The Court found no evidence in that case that the Defendant was a drug abuser, and there was no evidence he was a drug trafficker. They accepted that he was manipulated by a friend to sell.
[36.] With respect to R. v. Haley, I would distinguish the case at bar by saying Mr. Pitts is charged with section 5(2) which is possession for the purpose of trafficking. He admitted to selling cocaine earlier in the day. The amount that he had left and was seized is 40 grams and of cocaine. This is not a joint submission.
[37.] In R. v. Nguyen (2990) BCSC 1727: The defendant was convicted of cocaine trafficking. An undercover police officer asked the accused if he had cocaine or crack cocaine available and he supplied him with the object that he obtained from a person nearby. The accused was 56 years of age and had immigrated to Canada from Vietnam in 1989. He had health problems including HIV, a heart condition, diabetes and hypothyroidism. He was unemployed and had no family. He had a criminal record that went back to 1991 which included convictions for drug offences. The Crown suggested a nine month sentence but the court stated no one would benefit from such sentence. The Court found he would not be deterred by that sentence, and even a conditional sentence would be inappropriate because he would not adhere to it. He received a suspended sentence of two years. He was also subject to a lifetime weapons prohibition and a DNA order was imposed.
[38.] At paragraph 1 the court stated it found the submissions of neither counsel to be persuasive.
[39.] At paragraph 9, the court said:
The law recognizes that there may be a distinction between trafficking in an actual commodity which is proved to be a controlled substance and trafficking in something which is represented or held out to be a controlled substance.
[40.] And at paras. 23 to 27, Pitfield, J. states:
23 This case, to my mind, reflects the futility and waste associated with the pursuit of low level street traffickers such as Mr. Nguyen. This is an individual who had no drug or anything he could represent as a drug on his person at the time he was first approached by police. He left to approach somebody on the street curb who he must have known and who possessed the substance or something that could be represented to be the substance. Nguyen had no cash, no drug paraphernalia, and nothing to indicate any connection with the drug trade on his person when he was actually arrested. Four or five officers were involved in the operation.
24 The supply and sale of controlled substances continues unabated in the Downtown Eastside and will undoubtedly continue as long as there are illegal products for which there is a market, or for which, because of the substantial profit, suppliers will create a market if none exists. Costly law enforcement appears to have been totally ineffective at forestalling the trafficking of narcotics in the Downtown Eastside. One is left to wonder whether, as is sometimes and more frequently suggested, legalization and regulation of narcotics would provide a better means of control.
25 I am not persuaded that Nguyen is going to benefit in any way, shape, or form from a custodial sentence in the range of 9 months as the Crown suggests. Nor, in his circumstances, is that term going to deter him in the future. He will gain little in the way of skills in the period of time he will actually be incarcerated. He is already a drain on the public purse. I am left to ponder whether there is anything that is going to assist this individual in terms of rehabilitation or anything that will encourage him to pursue a reasonable and responsible lifestyle in the future.
26 I am likewise persuaded that the imposition of a conditional sentence order would be equally futile. I have no confidence whatsoever that Mr. Nguyen will be bound by the terms of a conditional sentence order. I fully expect that given his record in the past and his life circumstances, it is only a matter of time before he would be back before the court facing an allegation that he had breached a condition.
27 Mr. Nguyen's offence cannot be excused given the current state of the law, but it is a situation which, in my judgment, is well-suited to a suspended sentence. The purpose of suspending sentence is to let the accused know that no sentence has been passed and, in the event that he breaches any of the conditions that I am about to impose, he will be called back before the court likely to be sentenced to a period of incarceration, whether conditionally or otherwise remains to be seen.
[41.] I would distinguish the Nguyen case from the case at bar. In that particular case it was one rock of “cocaine” valued at $10.00. The charge was trafficking in a substance held out to be cocaine.
[42.] Lastly, in the case of R. v. Carter, 248 NFLD & PEIR 191, the court imposed a conditional sentence of two years less a day, probation for two years and a firearms prohibition. Paraphrasing from the headnote of Carter supra: The reasons for sentence following the accused’s conviction for conspiracy to traffic in cocaine. The accused supplied two individuals with quantities of cocaine having a street value of less than $4,000. There were intercepted communications suggesting that he was attempting to collect drug monies from earlier transactions. This 37 year old accused did not have a prior related record; he admitted his guilt and appeared willing to undergo rehabilitative steps. The Crown sought a sentence of imprisonment of three years. The defence sought a conditional sentence. The court was satisfied that the accused’s continued presence in the community would not endanger the community given the length of sentence and the stringent conditions imposed.
[43.] The court considered the following relevant factors in imposing that sentence:
1) Guilty plea;
2) No prior related record;
3) Post offence rehabilitative efforts were good. He had a medical
condition (kidney disease) but appeared motivated to make the
necessary life changes;
4) it was not commercial trafficking; and
5) it was committed for a monetary reward.
[44.] Further, at pars. 51 and 52, Goulding, J. states:
51 Considering the circumstances of Joseph Carter and the offence for which he has committed, I am satisfied that the offender's continued presence in the community would not endanger its safety. Mr. Carter has been on judicial interim release for over three and a half years and there is no suggestion that he breached any of the conditions of his release. He is a good candidate for rehabilitation considering his pre-offence and post-offence rehabilitative efforts. The probation officer referred to his positive attitude, his cooperation, his future plans, family and community support, his remorse and willingness to participate in programs, all of which may impact on and lower his risk to reoffend. He was deemed by the probation officer to be a suitable candidate for a conditional sentence order and for a community service order. With professional intervention and the threat that any breach may result in the balance of his sentence being served in a correctional institution, he is very likely to abide by the terms of a conditional sentence order.
52 The principles of sentencing including protection and safety of the public, individual deterrence, promoting accountability and responsibility in the offender, and rehabilitation can be adequately addressed by a conditional sentence order in this particular case. The issue of concern to the court was whether in the circumstances of this offence and this offender, the conditional sentence would achieve the sentencing objective of deterring other persons from engaging in a conspiracy to traffic in cocaine.
[45.] I would distinguish that case from the case at bar by saying that Mr. Pitts has a history of alcohol and drug abuse. The defendant has a lack of insight into his condition and will continue to have problems if he does not take steps to manage his health. Mr. Pitts says his health is why he cannot work, yet the EHS report state Mr. Pitts was drinking on numerous occasions prior to his episodes. And he can sell drugs from his home, or at least leave it to do so.
[46.] In conclusion, given the facts, the Defendant’s record and personal his circumstances, I conclude that a jail sentence is appropriate. Taking into consideration R. v. Knickle, by which I am bound, the range of sentence must be two years or greater. I do not find that there are any exceptional circumstances that would enable me to consider a sentence of less than two years. Therefore, Mr. Pitts is not eligible to be considered for a conditional sentence.
[47.] I am also satisfied that Mr. Pitts can receive appropriate medical care for his diabetes.
[48.] The purpose and objectives of sentencing and the principles to be considered are set out in the Code under sections 718, 718.1 and 718.2. The principle of deterrence must be emphasized.
[49.] R. v. Carter, 248 Nfld & PEIR 191, at para. 16 Marshall, J. states:
“Trafficking in cocaine in itself is grave as it preys upon the addictions of others for profit leaving in its wake inestimable individual and social damage and desolation.”
[50.] Later at para. 18, Marshall J states:
“It is imperative and particularly today, that the courts be resolute in their effort to discourage the committed and those contemplating the illegal drug trade.”
[51.] Taking into consideration the principal of proportionality, the seriousness of the offence, the amount of cocaine and other aggravating circumstances (the 40 grams were found in his residence where his wife and small children reside), he has no prior related record, and as well, taking into consideration all of the circumstances and the background of Mr. Pitts, I impose the following sentence.
[52.] There will be a weapons prohibition pursuant to Section 109 of the Code. There will be a DNA Order, and a Forfeiture Order for all items seized. I sentence you to two years in a federal penitentiary.
The Honourable Judge Jean M. Whalen, J.P.C.