R. v. Harrison (C.), (2012) 548 A.R. 146 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 07, 2012
• Jurisdiction: Alberta
• Citations: (2012), 548 A.R. 146 (PC);2012 ABPC 259

R. v. Harrison (C.) (2012), 548 A.R. 146 (PC)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. SE.070

Her Majesty the Queen v. Cordelius Harrison (100777747P1-01-001-011; 110065000P1-01-001-003; 110134194P1-01-001-003; 2012 ABPC 259)

Indexed As: R. v. Harrison (C.)

Alberta Provincial Court

Semenuk, P.C.J.

September 7, 2012.

Summary:

The accused, in his early 20's and a permanent resident of Canada, pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance. The issue was a fit global sentence.

The Alberta Provincial Court sentenced the accused to a global sentence of 36 months' imprisonment. Giving credit for 19 months spent in pre-trial custody, the global sentence was reduced to 17 months' imprisonment.

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term (totality principle) - [See second Criminal Law - Topic 5849.23 ].

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See first Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - The accused, in his early 20's, pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance - The Alberta Provincial Court imposed a global sentence of 36 months' imprisonment, absent time spent in pre-trial custody - The aggravating circumstances were as follows - 1. As to trafficking cocaine, the nature of the drug was serious - 2. Two separate drug transactions on different dates - 3. The prevalence of the offence in the community (dial-a-dope commercial drug trafficking) - 4. Two statutory aggravating factors pursuant to the Controlled Drugs and Substances Act (trafficking offences took place near schools; three prior convictions for designated substance offences) - 5. Trafficking offences took place while the accused was on bail - 6. As to the conspiracy to commit a robbery/home invasion, the nature of the offence was serious - 7. The accused was to provide "muscle" in the commission of the conspiracy offence - 8. Substantial criminal record; related convictions - 9. As to possession of marijuana, one prior conviction - 10. The pre-sentence report was not positive - See paragraph 49.

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - The accused, originally from Liberia, had permanent resident status in Canada - He pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance - The Alberta Provincial Court sentenced the accused to a global sentence of 36 months' imprisonment, notwithstanding the effects of s. 64 of the Immigration and Refugee Protection Act, namely, the accused was subject to an automatic deportation order, without a right of appeal - The court concluded that any sentence of under two years' imprisonment for the two charges of trafficking cocaine in all the circumstances of the case would not be fit - See paragraphs 51 and 52.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - The accused, in his early 20's and originally from Liberia, pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance - The Alberta Provincial Court imposed a global sentence of 36 months' imprisonment, absent time spent in pre-trial custody - The mitigating circumstances were as follows - 1. Guilty pleas - 2. As to the cocaine trafficking offences, relatively small quantity and value; second offence only involved a substance "held out" to be cocaine - 3. As to the marijuana possession offence, relatively small quantity and value - 4. As to the conspiracy to commit robbery/home invasion, accused played no part in masterminding the offence - 5. Youthful offender; support of his family - 6. Unfortunate background, including the murder of his father in Liberia, and difficulties in adjusting to life in Canada - See paragraph 49.

Criminal Law - Topic 5840

Sentencing - Considerations on imposing sentence - Prospective deportation of convict - [See Criminal Law - Topic 5834.8 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The accused pled guilty to multiple offences, including two charges of trafficking cocaine - The Alberta Provincial Court considered the range of sentence for trafficking cocaine - "It is well established in Alberta that the starting-point sentence for trafficking cocaine is three (3) years' imprisonment. ... The starting-point sentence assumes the Accused is of prior good character with no prior criminal record. A lesser sentence that dips into the Conditional Sentence Order (CSO) range may be justified depending on the circumstances of the offence and the offender and the aggravating and mitigating circumstances in the case. ... The sentencing principles of denunciation and deterrence are primary considerations in the sentencing process." - See paragraph 33.

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents (incl. starting point principle and sentencing ranges) - The Alberta Provincial Court, in arriving at a fit sentence for the conspiracy to commit robbery/home invasion offence in the circumstances of this case, reviewed and considered the range of sentences imposed for a home invasion robbery - "The Court appreciates that in this case the charge is one of conspiracy to commit a robbery/home invasion", but noted that pursuant to s. 465(1)(c) of the Criminal Code, "the Accused was liable to the same punishment as that to which an Accused is guilty of the substantive offence" - Given that the starting point for the full offence was eight years' imprisonment, the court accepted the Crown's analysis that the general range of sentence in the authorities was between six to eight years - See paragraphs 36 to 40.

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - [See second Criminal Law - Topic 5846.5 ].

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - The accused, in his early 20's, pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance - The Alberta Provincial Court, as to the conspiracy to commit a robbery/home invasion, arrived at a sentence of six months' imprisonment - The nature of the offence was serious - This was a planned and deliberate offence that was to occur at night - Four individuals, including the accused, were to invade a private residence, where they expected to find $20,000 and drugs - They were "strapped" with a firearm, and wearing bullet proof vests - Although the accused was not the "mastermind", he was to provide "muscle" - At the time, the accused was on bail and bound by two recognizances including a curfew condition, a weapons prohibition and a firearms prohibition - A fit sentence would be 14 months' imprisonment - However, the court reduced the sentence to six months, having regard to the totality principle - In the end result, the court sentenced the accused to a global sentence of 36 months' imprisonment - See paragraphs 49 and 61.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The accused, in his early 20's and a permanent resident of Canada, pled guilty to multiple offences, including two charges of trafficking cocaine, possession of marijuana, two charges of breach of recognizance, conspiracy to commit a robbery/home invasion, and two more charges of breach of recognizance - The issue was a fit global sentence - The Alberta Provincial Court stated that any sentence under two years' imprisonment for the two charges of trafficking cocaine, in all the circumstances of the case, would not be fit - The fact that the accused had three related drug convictions, and had already received the benefit of a 12 month conditional sentence order for possession of cocaine for the purpose of trafficking could not be ignored - That fact was also significant insofar as the court's consideration of the immigration consequences to the accused - In the end result, the global sentence, absent time spent in pre-trial custody, was 36 months' imprisonment - See paragraphs 51 to 58.

Cases Noticed:

R. v. Maskill (1981), 29 A.R. 107 (C.A.), refd to. [para. 23].

R. v. Rahime (S.) et al. (2001), 286 A.R. 377; 253 W.A.C. 377; 2001 ABCA 203, refd to. [para. 23].

R. v. Ly (T.Q.) (2012), 533 A.R. 192; 557 W.A.C. 192; 2012 ABCA 203, refd to. [para. 23].

R. v. Pham - see R. v. Ly (T.Q.).

R. v. Taleb (J.M.) (2002), 322 A.R. 381; 2002 ABPC 130, refd to. [para. 28].

R. v. Shaw (K.G.), [2004] A.R. Uned. 814; 2004 ABPC 217, refd to. [para. 28].

R. v. Daskalov (R.D.) (2011), 303 B.C.A.C. 191; 512 W.A.C. 191; 2011 BCCA 169, refd to. [para. 28].

R. v. Marshall (M.G.) (2012), 524 A.R. 297; 545 W.A.C. 297; 2012 ABCA 160, refd to. [para. 28].

R. v. Hamilton (G.R.), [2008] A.R. Uned. 523; 2008 ABPC 159, dist. [para. 34].

R. v. Aden (A.H.), [2010] A.R. Uned. 530; 2010 ABPC 220, dist. [para. 35].

R. v. Matwiy (S.B.) and Langston (J.D.) (1996), 178 A.R. 356; 110 W.A.C. 356; 105 C.C.C.(3d) 251 (C.A.), appld. [para. 36].

R. v. Binns (E.), [2009] O.T.C. Uned. X46; 2009 CarswellOnt 8970 (Sup. Ct.), refd to. [para. 40].

R. v. Dao, 2010 CarswellOnt 5222 (Sup. Ct.), refd to. [para. 40].

R. v. Rhidar, 2010 CarswellOnt 7454 (Sup. Ct.), refd to. [para. 40].

R. v. Tran (Q.H.) et al. (2010), 264 O.A.C. 125; 2010 ONCA 471, refd to. [para. 40].

R. v. Cromarty (S.W.), [2010] Yukon Cases Uned. (TC) 113; 2010 CarswellYuk 138 (Terr. Ct.), refd to. [para. 40].

R. v. Arcand (C.B.) (2000), 199 Sask.R. 4; 232 W.A.C. 4; 2000 SKCA 60, refd to. [para. 48].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 48].

R. v. Proulx (J.K.D.) (2000), 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 140 C.C.C.(3d) 449, refd to. [para. 48].

R. v. Belenky (A.S.) (2010), 477 A.R. 354; 483 W.A.C. 354; 2010 ABCA 98, folld. [para. 52].

Counsel:

D. Spaner, Federal Crown and S. Parker, Provincial Crown;

R. Snukal and B. Harsanyi, for the accused.

This sentencing matter was heard before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following judgment, with reasons, dated at Calgary, Alberta, on September 7, 2012.