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SENTENCING - Controlled drugs and substances - Particular sanctions - Seriousness of offence

Monday, July 27, 2020 @ 9:14 AM  

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Appeal by the Crown from an intermittent sentence of 90 days’ imprisonment and three years’ probation for possession of cocaine, marihuana and cannabis resin for the purpose of trafficking. The respondent pleaded guilty. Police found eight kilograms of cultivated and packaged cannabis marihuana, 144.5 grams of cocaine and 56.6 grams of cannabis resin in the respondent’s home and seized almost $6,000 in cash. At the time of his arrest, police also seized a scoresheet, a digital scale and a money counter. The respondent was gainfully employed, earning a significant annual income. The respondent, 28, had no prior record. The judge referred to the respondent as nothing more than a petty retailer. The Crown argued the trial judge’s analysis was fundamentally flawed by his failure to properly characterize the seriousness of the respondent’s crimes and his role in their commission. 

HELD: Appeal allowed. Sentence was increased to two years’ imprisonment. Due to the crisis, lethality and uncertainty surrounding the COVID-19 pandemic, the sentence was stayed. The judge misapprehended the nature and extent of the respondent’s illegal enterprise. Rather than properly reflecting upon the danger, type and quantity of drugs seized from the respondent in categorizing the offences, and then comparing those very serious circumstances to binding and comparable decisions of this court, the trial judge instead began his analysis by citing his own decisions which were subsequently overturned by this court. Compounding the judge’s failure to properly situate the respondent’s offences in the hierarchy of drug trafficking crimes was his failure to consider any number of leading cases in Nova Scotia involving offenders whose trafficking crimes went beyond petty retailing and fell within the larger retailer or small wholesaler category. The quantity of the drugs indicated a mid-to-high level drug retailing operation. The evidence established that the respondent was actively involved in trafficking on a commercial scale. The judge also erred by apparently considering the absence of weaponry as a significant mitigating factor. The various errors in the judge’s analysis combined to mischaracterize the respondent as a petty retailer and to diminish the gravity of his offences. This led directly to the disproportionately lenient sentence imposed. The judge’s perception of the frequency of drug trafficking offences and the extent of resulting harm in the particular community in which he presided could not justify altering or ignoring the established sentencing range. The respondent deliberately engaged in a business which led to destroyed lives. The discrepancy between his sentence and those imposed on similar offenders for similar offences was too large to ignore. A proper application of the paramount principles and objectives of sentencing required a federal penitentiary sentence. A sentence of two years’ imprisonment, while at the lowest end of the range of sentences based on the level of the respondent’s trafficking operations, would remain proportionate to the gravity of his crimes and his high degree of moral culpability in their commission. Sentence: Two years’ imprisonment; three years’ probation.

R. v. Kleykens, [2020] N.S.J. No. 221, Nova Scotia Court of Appeal, D.P.S. Farrar, J.W.S. Saunders and C.A. Bourgeois JJ.A., June 24, 2020. Digest No. TLD-July272020001