Jul 13, 2020

Summary of R v Hamilton

R v Hamilton, 2020 SKPC 19 (CanLII)
Criminal Law – Sentencing – Aboriginal Offender
Criminal Law – Sentencing – Possession for the Purpose of Trafficking
Criminal Law – Sentencing – Pre-Sentence Custody Credit
Criminal Law – Sentencing – Pre-Sentence Report
Criminal Law – Sentencing – Principles of Sentencing
Criminal Law – Sentencing – Proceeds of Crime

When the accused was arrested for assault, police located $5,260 in cash on his person. A search of his apartment resulted in finding 30 bags of methamphetamine with approximately one ounce in each bag. The total weight of the methamphetamine was 846 grams. The accused pled guilty to proceeds of crime contrary to s. 354(1)(a) for the cash located on him and to possession for the purpose of trafficking methamphetamine contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA). The accused was on statutory release at the time of his arrest. Because of the arrest, his statutory release was revoked. The accused was arrested on June 4, 2019. He continued to be remanded to the Saskatchewan Penitentiary even after his two-year sentence expired on September 24, 2019. The accused agreed with the essential circumstances as presented by the prosecutor and he agreed to the content of the Expert Report as well as to a copy of the criminal record. One of the three phones located at the search revealed that the accused had at least two other people working for him to sell methamphetamine. The accused confirmed that he had purchased a kilogram of methamphetamine to sell. All of the drug money located on the accused was from drug sales. The accused did not have any prior trafficking convictions but did have a prior criminal record. His motive for selling drugs was profit, not to feed an addiction. The accused was 42 years old at sentencing. He was Metis and grew up with his mother until he was 15 when he moved to live with his father. After living with his father for two months, his father left and he had to fend for himself, which he did. The accused was abused by his stepfather and he observed his stepfather abusing his mother. He witnessed drug use in the home and by the age of 15 was smoking marijuana and using a variety of hard drugs. The accused finished high school and had a solid employment record.
HELD: The accused was very forthright in his submissions and gave considerable information to the court about his involvement in these offences. The court found the accused’s candor to be a clear indicator that he was fully accepting responsibility for the offences. The court accepted that the accused had only sold drugs for the couple of months before his arrest and that he got into trafficking because acquaintances from his time in custody presented him with the opportunity. The court found that there were Gladue factors present that resulted in some mitigation being factored into the decision. The appropriate sentence was found to be one in excess of two years. The court discussed how reduced moral culpability could still be factored into a penitentiary sentence. The accused’s moral culpability was somewhat reduced. The aggravating factors were: the large quantity of methamphetamine; the impact that illegal drugs have on the community; that the accused was a “mid-level” trafficker; the accused’s prior criminal record; that the accused had a prohibited weapon, bear spray; that the accused was still serving a sentence when arrested; and the accused’s high level of moral culpability for the offences, though tempered by relevant factors in s. 718.2(e). The mitigating factors were: guilty pleas and acceptance of responsibility; the accused’s background and personal circumstances; and the applicable Gladue factors. The court discussed the need to ensure the sentence is proportional to the gravity of the offence and the degree of responsibility of the offender. When discussing parity, the court agreed with the Crown that there was no established standard range of sentence for trafficking, or possession for the purpose of trafficking, of methamphetamine. Cases demonstrated that lengthy terms of imprisonment are common for CDSA offences involving methamphetamine. Also, the cases confirmed that the accused was in possession of a very large amount. Denunciation and deterrence are the predominant factors for the trafficking in methamphetamine offence. The court also considered rehabilitation as a subordinate factor. The appropriate sentence was found to be imprisonment for 56 months for the trafficking offence. The appropriate sentence for the possession of proceeds of crime was 12 months’ imprisonment, concurrent. The accused was given credit of 1.5 times for the period of time he was in custody after September 24, 2019. If the accused had not been charged with these offences, he would have been released on August 17, 2019. He argued that he should also be given credit at 1.5 times for the period from August 17 to September 24. He was given credit of one and a half months for that period. The total pre-sentence custody was 12 months. The remaining time to be served was 44 months. Forfeiture orders and ancillary orders were also made.