R. v. Gillespie (J.A.), 2015 BCCA 290

• Judge: Newbury, Lowry and Frankel, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 12, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 290;(2015), 374 B.C.A.C. 205 (CA)

R. v. Gillespie (J.A.) (2015), 374 B.C.A.C. 205 (CA);

    642 W.A.C. 205

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.007

Regina (respondent) v. Joshua Adam Gillespie (appellant)

(CA42632; 2015 BCCA 290)

Indexed As: R. v. Gillespie (J.A.)

British Columbia Court of Appeal

Newbury, Lowry and Frankel, JJ.A.

June 26, 2015.

Summary:

The accused's girlfriend was involved in running a "dial-a-dope" business. On Februrary 9, 2012, the accused agreed to help her by making a delivery of cocaine to a customer who turned out to be an undercover officer. The accused was arrested. In addition to cocaine, MDNA and Ecstasy, packaged for sale, were found in his car. The police also found the girlfriend's phone. The accused and the girlfriend were both charged. The girlfriend pleaded guilty to two other trafficking offences committed in December 2011. At her sentencing hearing, the facts of the February 9, 2012 incident were cited as aggravating factors and she was sentenced to an 18 month conditional sentence. The accused pleaded guilty to one count of possession of cocaine for the purposes of trafficking and was sentenced to six months' imprisonment. The accused appealed, asserting that he should have been sentenced to a conditional sentence because (1) he was acting as a courier performing a one-time delivery as a favour and not for profit (i.e., special circumstances); (2) he should not have received a more severe sentence than his girlfriend; and (3) the sentencing judge erred by concluding that he had no choice but to impose a period of imprisonment.

The British Columbia Court of Appeal dismissed the appeal. Although it might be inferred that the accused was unlikely to engage in illegal drug trafficking again, the fact remained that he did so to assist his girlfriend and thus showed himself willing to disseminate cocaine and other drugs in the community. Illegal drugs continued to be a scourge in many British Columbia communities and denunciation and deterrence had to play a strong role in the sentencing of dial-a-dope offenders. While the sentencing judge might have erred when he stated that he "had no choice", the imposition of six months' imprisonment was within the appropriate sentencing range. The sentence was not demonstrably unfit.

Criminal Law - Topic 5720.4

Punishments (sentence) - Conditional sentence - When available or appropriate - See paragraphs 1 to 17.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - See paragraphs 1 to 17.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - See paragraphs 1 to 17.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance - Possession for the purpose of trafficking - See paragraphs 1 to 17.

Cases Noticed:

R. v. Cisneros (P.A.) (2014), 354 B.C.A.C. 82; 605 W.A.C. 82; 2014 BCCA 154, refd to. [para. 4].

R. v. Gill (H.S.) (2013), 340 B.C.A.C. 138; 579 W.A.C. 138; 2013 BCCA 320, refd to. [para. 4].

R. v. Tran (L.V.) (2008), 250 B.C.A.C. 38; 416 W.A.C. 38; 2007 BCCA 613, refd to. [para. 4].

R. v. Alves (D.S.), [2013] B.C.T.C. Uned. 2075 (S.C.), refd to. [para. 5].

R. v. Fargo (A.M.C.) (2015), 372 B.C.A.C. 47; 640 W.A.C. 47; 2015 BCCA 187, refd to. [para. 9].

R. v. Allen (W.R.) (2012), 327 B.C.A.C. 236; 556 W.A.C. 236; 2012 BCCA 377, refd to. [para. 11].

R. v. R.W.V. (2012), 323 B.C.A.C. 285; 550 W.A.C. 285; 2012 BCCA 290, refd to. [para. 11].

R. v. Visscher - see R. v. R.W.V.

R. v. Oates (K.A.L.) (2015), 373 B.C.A.C. 123; 641 W.A.C. 123; 2015 BCCA 259, refd to. [para. 13].

R. v. Franklin (J.D.), [2001] B.C.T.C. 706; 2001 BCSC 706, refd to. [para. 15].

R. v. Carrillo (O.O.) (2015), 371 B.C.A.C. 182; 636 W.A.C. 182; 2015 BCCA 192, refd to. [para. 15].

Counsel:

G.D. Simair, for the appellant;

J.N. Walker, for the respondent.

This appeal was heard at Victoria, British Columbia, on June 12, 2015, by Newbury, Lowry and Frankel, JJ.A., of the British Columbia Court of Appeal. Newbury, J.A., delivered the following judgment for the Court on June 26, 2015.