R. v. Payne (K.J.) et al., (2012) 325 Nfld. & P.E.I.R. 119 (NLTD(G))

• Judge: Goodridge, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: June 11, 2012
• Jurisdiction: Newfoundland and Labrador
• Citations: (2012), 325 Nfld. & P.E.I.R. 119 (NLTD(G))

R. v. Payne (K.J.) (2012), 325 Nfld. & P.E.I.R. 119 (NLTD(G));

    1009 A.P.R. 119

MLB headnote and full text

Temp. Cite: [2012] Nfld. & P.E.I.R. TBEd. JL.036

Her Majesty the Queen v. Kelly Joseph Payne and Pauline Flora Nellie Colbourne (201004G0472; 201004G0474; 201004G0475; 2001004G0478; 201004G0479; 201004G0484)

Her Majesty the Queen v. Kelly Joseph Payne

(201004G0485; (2012 NLTD(G) 106)

Indexed As: R. v. Payne (K.J.) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Goodridge, J.

July 19, 2012.

Summary:

Payne and Colbourne pleaded guilty to conspiracy to traffic in cocaine, possession for the purpose of trafficking in Oxycodone, possession for the purpose of trafficking in marijuana, possession for the purpose of trafficking ecstasy, possession of canabis resin, conspiracy to traffic marijuana, conspiracy to traffic in ecstasy, and failure to comply with an undertaking to abstain from the possession or use of non-prescription drugs. Payne also pleaded guilty to unsafe storage of firearms and breach of an undertaking to turn over any firearms to the RCMP.

The Newfoundland and Labrador Supreme Court, Trial Division (General), sentenced Payne to a total of five years and seven months' imprisonment, less credit for time served, for a net sentence of five years and four months. The court sentenced Colbourne to a total of two years and three months' imprisonment, less credit for time served, for a net sentence of two years, two months and 20 days. The court also imposed on each accused a 10 year firearms prohibition, and $100 victim fine surcharge.

Criminal Law - Topic 5729.4

Punishments (sentence) - Conditional sentence - When available or appropriate - Payne and Colbourne were common law spouses - They entered late guilty pleas to a conspiracy to traffic in cocaine, possession for the purpose of trafficking in Oxycodone, possession for the purpose of trafficking in marijuana, possession for the purpose of trafficking ecstasy, possession of canabis resin, conspiracy to traffic marijuana, conspiracy to traffic in ecstasy, and failure to comply with an undertaking to abstain from possessing or using non-prescription drugs - Payne also pleaded guilty to unsafe storage of firearms and breach of an undertaking to turn over any firearms to the RCMP - In 2009 they travelled to Toronto where they purchased drugs having a street value of $645,000 - They mailed the drugs to contacts in Newfoundland - The drugs were to be returned to Payne for street level sales - They were released on an undertaking which required that they abstain from possessing or using non-prescription drugs and turn over any firearms to the RCMP - In 2010, a search of their residence resulted in discovery of a modest supply of non-prescription drugs and drug paraphernalia - A rifle stored in an unsafe manner was also found - The Newfoundland and Labrador Supreme Court, Trial Division (General), refused to impose conditional sentences - It was not appropriate for the accused to return to the community where they had carried on a drug business in 2009 and where they were found in possession of more drugs in 2010 - The circumstances warranted a sentence greater than two years - See paragraphs 28 to 30.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - Payne, aged 39, entered late guilty pleas to multiple charges arising from his involvement in an illegal drug business - In 2009 he and his common law spouse travelled to Toronto where they purchased drugs having a street value of $645,000 - They mailed the drugs to contacts in Newfoundland - The drugs were to be returned to Payne for street level sales - He was released on an undertaking which required that he abstain from possessing or using non-prescription drugs and turn over any firearms to the RCMP - In 2010, a search of his residence resulted in the discovery of a modest supply of non-prescription drugs and drug paraphernalia - A rifle stored in an unsafe manner was also found - Payne was the architect and key player behind the drug business - He had a positive presentence report - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that an appropriate sentence range was 2.5-5 years' imprisonment - The sentences for the 2009 offences should be concurrent to each other where they arose out of a single criminal adventure (the same applied to the 2010 drug offences), but consecutive to the sentences for the 2010 drug offences - The breaches of undertakings and the unsafe storage should be separate and consecutive - Applying that process, the court sentenced Payne to four years' imprisonment for conspiracy to traffic in cocaine (a 2009 offence); one year for possession for the purpose of trafficking in Oxycodone (2010); one year for possession for the purpose of trafficking in marijuana (2010); one year for possession for the purpose of trafficking ecstasy (2010); one year for possession of canabis resin (2010); two years for conspiracy to traffic in less than three kilograms of marijuana (2009); four years for conspiracy to traffic in ecstasy (2009); three months for failing to comply with an undertaking to abstain from the possession or use of non-prescription drugs (2010); two months for unsafe storage of firearms (2010); and two months for breaching an undertaking to turn over any firearms to the RCMP (2010) - The court gave the Payne three months credit for 38 days of pretrial custody where double credit was available when he committed the crimes - This resulted in a net sentence of five years and four months' imprisonment.

Criminal Law - Topic 5802

Sentencing - General - Concurrent sentences - Colbourne, aged 31, and her common law spouse (Payne) entered late guilty pleas to multiple charges arising from their involvement in an illegal drug business - In 2009 they travelled to Toronto where they purchased drugs having a street value of $645,000 - They mailed the drugs to contacts in Newfoundland - The drugs were to be returned to Payne for street level sales - Colbourne was released on an undertaking which required that she abstain from possessing or using non-prescription drugs - In 2010, a search of her residence resulted in the discovery of a modest supply of non-prescription drugs and drug paraphernalia - Her role in the drug business was that of a helper - She had a positive presentence report - She was the mother of two school aged children - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that an appropriate sentence range was 2.5-5 years' imprisonment - The sentences for the 2009 offences should be concurrent to each other where they arose out of a single criminal adventure (the same applied to the 2010 drug offences), but consecutive to the sentences for the 2010 drug offences - The breach of undertaking should be consecutive - However, the resulting sentence would be unduly harsh given Colbourne's minor role and her circumstances - To achieve proper totality, the court made the sentences for the 2010 drug related charges concurrent with the sentences for the 2009 charges - Applying that process, the court sentenced Colbourne to two years' imprisonment for conspiracy to traffic in cocaine (a 2009 offence); one year for possession for the purpose of trafficking in Oxycodone (2010); one year for possession for the purpose of trafficking in marijuana (2010); one year for possession for the purpose of trafficking ecstasy (2010); one year for possession of canabis resin (2010); two years for conspiracy to traffic in less than three kilograms of marijuana (2009); two years for conspiracy to traffic in ecstasy (2009); and three months for failing to comply with the undertaking (2010) - The court gave Colbourne 10 days' credit for five days of pretrial custody where double credit was available when she committed the crimes - This resulted in a net sentence of two years, two months and 20 days' imprisonment.

Criminal Law - Topic 5803

Sentencing - General - Consecutive sentences - [See both Criminal Law - Topic 5802 ].

Criminal Law - Topic 5804

Sentencing - General - Consecutive sentences - Reduced total term - [See second Criminal Law - Topic 5802 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - [See both Criminal Law - Topic 5802 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substances (incl. possession for the purpose of trafficking) - [See both Criminal Law - Topic 5802 ].

Criminal Law - Topic 5853

Sentence - Trafficking in hashish or marijuana (incl. possession for the purposes of trafficking) - [See both Criminal Law - Topic 5802 ].

Criminal Law - Topic 5877.1

Sentence - Dangerous or careless use of firearm - [See first Criminal Law - Topic 5802 ].

Criminal Law - Topic 5892

Sentence - Breach of restraining order, recognizance or undertaking - [See both Criminal Law - Topic 5802 ].

Cases Noticed:

R. v. Nasogaluak (L.M.) (2010), 398 N.R. 107; 474 A.R. 88; 479 W.A.C. 88; 315 D.L.R.(4th) 193; 2010 SCC 6, refd to. [para. 12].

R. v. Kang-Brown (G.), [2008] 1 S.C.R. 456; 373 N.R. 67; 432 A.R. 1; 424 W.A.C. 1; 2008 SCC 18, refd to. [para. 16, footnote 2].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 29].

R. v. Conway (M.F.) (2009), 282 N.S.R.(2d) 154; 895 A.P.R. 154; 2009 NSCA 95, refd to. [para. 30].

R. v. Carvery (1991), 108 N.S.R.(2d) 284; 294 A.P.R. 284 (C.A.), refd to. [para. 32].

R. v. Steeves (M.W.) (2007), 261 N.S.R.(2d) 76; 835 A.P.R. 76; 2007 NSCA 130, refd to. [para. 33].

R. v. Sparks (C.A.) (1993), 126 N.S.R.(2d) 215; 352 A.P.R. 215 (C.A.), refd to. [para. 34].

R. v. Byrne (M.E.) (2009), 281 Nfld. & P.E.I.R. 353; 863 A.P.R. 353; 2009 NLCA 3, refd to. [para. 35].

R. v. Lavers (S.J.) (2010), 303 Nfld. & P.E.I.R. 153; 941 A.P.R. 153; 2010 NLCA 73, refd to. [para. 36].

R. v. Ling, 2012 ONSC 654, refd to. [para. 37].

R. v. Oates (K.) (1992), 100 Nfld. & P.E.I.R. 289; 318 A.P.R. 289 ( Nfld. C.A.), refd to. [para. 38].

R. v. Pynn (F.T.) (2009), 286 Nfld. & P.E.I.R. 333; 883 A.P.R. 333 (N.L. Prov. Ct.), refd to. [para. 39].

R. v. Reid (D.R.) (2008), 266 N.S.R.(2d) 295; 851 A.P.R. 295 (Prov. Ct.), refd to. [para. 40].

R. v. Doe, 2000 YTTC 64, refd to. [para. 41].

R. v. Miller (M.A.) (2000), 269 A.R. 376; 2000 ABPC 122, refd to. [para. 42].

R. v. Snow (F.J.) (2006), 252 Nfld. & P.E.I.R. 351; 756 A.P.R. 351; 2006 NLTD 3, refd to. [para. 43].

R. v. Yetman (E.S.), [2009] Nfld. & P.E.I.R. Uned. 9; 2009 NLTD 26, refd to. [para. 44].

R. v. Crocker (B.J.) (1991), 93 Nfld. & P.E.I.R. 222; 292 A.P.R. 222 (Nfld. C.A.), refd to. [para. 45].

R. v. Murphy (D.) (2011), 304 Nfld. & P.E.I.R. 266; 944 A.P.R. 266; 2011 NLCA 16, refd to. [para. 47].

R. v. Hennebury (P.) (1996), 138 Nfld. & P.E.I.R. 56; 431 A.P.R. 56 (Nfld. C.A.), refd to. [para. 47].

R. v. Hutchings (R.) (2012), 316 Nfld. & P.E.I.R. 211; 982 A.P.R. 211; 2012 NLCA 2, refd to. [para. 48].

Counsel:

David Mills, Q.C., for the Federal Crown;

Michael Fox, for the Provincial Crown;

Tony St. Croix, for Kelly Joseph Payne;

James Goudie, for Pauline Flora Nellie Colbourne.

This matter was heard at Corner Brook, N.L., on June 11, 2012, by Goodridge, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following judgment on July 19, 2012.