R. v. Yakimishyn (B.M.), (2009) 470 A.R. 140 (QB)

• Judge: Hillier, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 13, 2009
• Citations: (2009), 470 A.R. 140 (QB);2009 ABQB 162

R. v. Yakimishyn (B.M.) (2009), 470 A.R. 140 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. AP.111

Her Majesty The Queen v. Beau Michael Yakimishyn (071521769Q1; 2009 ABQB 162)

Indexed As: R. v. Yakimishyn (B.M.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Hillier, J.

March 13, 2009.

Summary:

The 27 year old accused pleaded guilty to trafficking in cocaine. He was a high level distributor in a wholesale commercial trafficking operation.

The Alberta Court of Queen's Bench sentenced the accused to 10.5 years' imprisonment, less 32 months' credit for pretrial custody, leaving a net sentence of seven years and 10 months.

Criminal Law - Topic 5830.8

Sentencing - Considerations on imposing sentence - Drug and narcotic offences - [See Criminal Law - Topic 5850 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - An accused being sentenced for trafficking in cocaine sought, in addition to credit for pre-trial custody (which was given), credit for the approximate 12 months spent on judicial interim release subject to, inter alia, a reporting requirement (varied from three times to once a week) and a 10:00 p.m. curfew - The Alberta Court of Queen's Bench declined to give the accused further credit - The reporting requirement and curfew "do not begin to amount to a constraint on liberty of the type that may attract partial credit towards time served in prison. There was no evidence of hardship" and "no special circumstances as would warrant credit for any portion of this period" - See paragraph 55.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - The 27 year old accused pleaded guilty to trafficking in cocaine - He was a member of a wholesale commercial trafficking operation - He was a high level distributor, high enough in the hierarchy that he had knowledge of when large quantities of cocaine were available in Alberta and the financial means to purchase, on short notice, multiple kilos for resale to lower level dealers - He held himself out in intercepted communications to be able to fund purchases of up to 10 kilos of cocaine - The accused lived off the proceeds and had accumulated significant wealth - His house and an $80,000 customized vehicle were seized and forfeited - The accused had no prior criminal record - The Alberta Court of Queen's Bench held that given the context and nature of the operation, the accused's role as a sophisticated high level trafficker, his moral culpability was high - Deterrence was the paramount sentencing consideration - The starting point sentence for wholesale commercial trafficking was 4.5 years' imprisonment - The court sentenced the accused to 10.5 years' imprisonment, less 32 months' credit for pretrial custody, leaving a net sentence of seven years and 10 months - See paragraphs 1 to 54.

Cases Noticed:

R. v. Lam (T.K.) (2005), 389 A.R. 334; 2005 ABQB 886, refd to. [para. 24].

R. v. Nguyen (K.H.) (2007), 404 A.R. 281; 394 W.A.C. 281; 2007 ABCA 138, refd to. [para. 24].

R. v. Chung (K.P.) et al. (1999), 232 A.R. 193; 195 W.A.C. 193 (C.A.), refd to. [para. 24].

R. v. Sheppe, [1980] 2 S.C.R. 22; 31 N.R. 437, refd to. [para. 28].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 28].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 2004 ABCA 408, refd to. [para. 30].

R. v. Ostertag (T.K.) (2000), 266 A.R. 57; 228 W.A.C. 57; 2000 ABCA 232, refd to. [para. 33].

R. v. Lecapoy (1974), 18 C.C.C.(2d) 496 (Alta. C.A.), refd to. [para. 33].

R. v. Thompson (1989), 98 A.R. 348 (C.A.), refd to. [para. 34].

R. v. Grant (I.M.) (2007), 216 Man.R.(2d) 219 (Q.B.), affd. (2009), 236 Man.R.(2d) 54; 448 W.A.C. 54; 2009 MBCA 9, refd to. [para. 35].

R. v. Doherty (1972), 9 C.C.C.(2d) 115 (Ont. C.A.), refd to. [para. 36].

R. v. Gilchrist (R.) (2004), 184 Man.R.(2d) 23; 318 W.A.C. 23; 2004 MBCA 21, refd to. [para. 36].

R. v. Hill (W.) (2007), 243 B.C.A.C. 90; 401 W.A.C. 90; 221 C.C.C.(3d) 472 (C.A.), refd to. [para. 36].

R. v. Ma (H.) (2003), 330 A.R. 142; 299 W.A.C. 142; 2003 ABCA 220, refd to. [para. 37].

R. v. Trinh (C.G.) (2000), 266 A.R. 180; 228 W.A.C. 180; 2000 ABCA 231, refd to. [para. 37].

R. v. Chan (D.K.F.) (2005), 377 A.R. 394; 2005 ABQB 274, refd to. [para. 37].

R. v. Matthiessen (C.B.) (1995), 188 A.R. 321 (Q.B.), refd to. [para. 37].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 2004 ABCA 408, refd to. [para. 40].

R. v. Honish and Lafrance (1989), 100 A.R. 79 (C.A.), refd to. [para. 40].

R. v. Jenner (J.P.) (2005), 192 Man.R.(2d) 184; 340 W.A.C. 184; 2005 MBCA 44, refd to. [para. 45].

R. v. Paris (N.) (2006), 208 O.A.C. 385 (C.A.), refd to. [para. 45].

R. v. Maskell (1981), 29 A.R. 107 (C.A.), refd to. [para. 46].

R. v. Ijam (G.) (2007), 228 O.A.C. 296; 2007 ONCA 597, refd to. [para. 55].

Counsel:

Gregory A. Rice (Public Prosecution Service of Canada), for the Crown;

Kevin P. Gubbins (Fleming Depoe Banks Gubbins), for the accused.

This matter was heard on March 2-6, 2009, before Hillier, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 13, 2009.