COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	R. v. Newson,
	2008 BCCA 28

Date: 20080123

Docket: CA034735

Between:

Regina

Respondent

And

John Wayne Newson

Appellant

Before:	The Honourable Mr. Justice Hall
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Tysoe

 

H. Patey	Counsel for the Appellant
W.P. Riley	Counsel for the Respondent
Place and Date of Hearing:	Vancouver, British Columbia
December 6, 2007
Place and Date of Judgment:	Vancouver, British Columbia
January 23, 2008

 

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Hall The Honourable Mr. Justice Tysoe

Reasons for Judgment of the Honourable Madam Justice Saunders:

[1]                Mr. Newson seeks leave to appeal and, if leave is granted, appeals from a sentence of six years incarceration for conspiracy to traffic in cocaine.  He was convicted on a guilty plea after a preliminary hearing and sentenced on November 16, 2006 by Associate Chief Justice Dohm.  The reasons for sentence are not indexed.

[2]                Mr. Newson has also applied to adduce fresh evidence in the form of an affidavit from his step-father concerning the circumstances of Mr. Newson’s daughter since Mr. Newson was sentenced.  In the affidavit Mr. Newson’s step-father sets out his concerns that the quality of care the child receives from her mother is deficient and expresses his anxiety as to the child’s well-being.

[3]                Mr. Newson was one of four persons before the Associate Chief Justice on the occasion of his sentencing.  All four were involved in what is commonly referred to as a “dial-a-dope” operation.  The Associate Chief Justice found that the criminal activity was organized, saying it was “to a large degree, sophisticated”.  He found there “was some planning and deliberation on the part of the participants to the point where business cards were ordered and no doubt circulated, on which are phone numbers to lead persons who are desirous of purchasing cocaine to these persons . . . or persons acting on their behalf”.  Associate Chief Justice Dohm found that the operation occurred in five areas of the Lower Mainland: Abbotsford, Langley, Cloverdale, Surrey and White Rock. 

[4]                One of the accused, Mr. Montgomery, took the position that he led the organization.  He received a sentence of eight years incarceration.  In addition to Mr. Montgomery and Mr. Newson, there were two other accused, Mr. Zopf and Ms. Mikelsons.  At the sentencing hearing Crown counsel suggested that Mr. Zopf was in a different position than Mr. Newson but that the two men should receive the same sentence, and agreed that Ms. Mikelson was at a third level for sentencing purposes.  Mr. Newson disputed his equivalency with Mr. Zopf.  Associate Chief Justice Dohm found that Mr. Zopf and Mr. Newson had different functions, but said “from my analysis, they are in the same category”.  He sentenced Mr. Zopf and Mr. Newson to the same sentence, six years incarceration, and Ms. Mikelsons to a sentence of four years incarceration. 

[5]                As to Mr. Newson he held:

[7]        Overall, there is no doubt on the evidence that Mr. Newson had the ability to bring about a great many sales and was the knowledgeable person, generally, about the necessity for the use of the telephone and the various lines that were required in order to carry on this business.  The term “dial-a-dope” operation really says it all and I need not really go further other than to say that.  [. . .]  Along with the business cards that I referred to, there were ledgers kept by Ms. Mikelsons, for one, Montgomery by the other and so also with Mr. Zopf.  No ledger was found associated with Mr. Newson.

[. . . ]

[9]        One other comment I would like to make is that until the final curtain dropped on this operation, one or more of the accused were arrested.  My recollection is, that it was Ms. Mikelsons and Mr. Newson and the indication is, that after those arrests, the accused were released.  Whether they were released on some undertaking or bail or whatever, it matters not.  The fact is that whatever their reason for the release it seemed not to deter the accused from continuing in their former ways.  That is to say, they went right back at the very jobs that they were doing prior to the temporary interruption.  That, in my view, is a factor that the court ought to consider in dealing with the matter of sentence.

[6]                Associate Chief Justice Dohm found that the operation lasted for at least six to eight months.  He held that “this is not a loose-knit operation.  This is not an unsophisticated one.  This is not one that was hatched overnight.  It required a good deal of planning and deliberation for its continued success and it is in that light that I intend to sentence the four accused”.

[7]                In imposing sentence the Associate Chief Justice recognized that the amount of cocaine involved at the time of the arrest was less than in other cases, and that Mr. Newson did not have a criminal record that affected the sentencing.  He referred to the letters filed in support of each accused and then he imposed sentence on each of the four offenders before him. 

[8]                Crown counsel says, in amplification of the reasons of the Associate Chief Justice, that it is undisputed that the enterprise had a wholesale distribution component in addition to the retail “dial-a-dope” aspect, and that Mr. Newson was a central figure in both parts of the business.  It is apparent from the appeal record that Mr. Newson worked on three different routes during the course of the investigation, and that he was central to the dispersal of a large volume of drugs.  When he was arrested he was found in possession of 45 flaps of cocaine, methamphetamine and $2,000 in cash.  His role and his knowledge of the workings of the enterprise are illustrated in a conversation with an undercover police officer in which he said the operation had 20 employees and that they made $5,000 a day in Langley alone as well as other monies on other routes, and in another conversation with an undercover police officer in which he said that when he was working on the Langley route, the group was making $110,000 per month.  After Mr. Newson’s arrest, the police searched his residence and found 400 printed business cards with different phone numbers on them, some with the numbers “24/7”.

[9]                The evidence of the wholesale operation came largely from Mr. Newson’s dealings with an undercover police officer, in the course of which, over a seven-month period, he negotiated 12 separate sales of cocaine in quantities beyond retail sale.

[10]            At the time of his sentencing, Mr. Newson was 43 years old.  He had a dated prior criminal record with convictions for drunk driving and possession of stolen property.

[11]            Mr. Newson has one child, a daughter seven years old at the time of sentencing.  At the sentencing hearing Mr. Newson’s counsel advised the court that Mr. Newson was involved in raising the child, taking her to school and recreational activities, and acting as a primary caregiver at least some of the time.  That submission was repeated to this Court.  The child now resides with her mother who has a substance addiction.  The fresh evidence sought to be adduced concerns the circumstances of this child and Mr. Newson’s parents’ concern on her behalf.

[12]            Mr. Newson’s counsel advised the court at the sentencing hearing, and again in the hearing before this Court, that Mr. Newson first became involved in the drug world after he became addicted to a drug prescribed for pain for injuries arising from an accident and, unable to sustain employment, started to work as a driver in the “dial-a-dope” business on a part-time basis to augment his disability income.  Mr. Newson, it is said, himself became addicted to cocaine, and became involved on a full time basis working in this criminal enterprise. 

[13]            Mr. Patey, on behalf of Mr. Newson, contends that Associate Chief Justice Dohm erred in his characterization of the position of Mr. Newson in the organization, and in failing to give sufficient reasons explaining his conclusion that Mr. Newson should be sentenced as if he held a comparable position to Mr. Zopf.  He says that Mr. Newson was “labour rather than management.”  He refers to the parity principle, says that the sentences imposed in respect to the scheme should reflect differences in rank, and submits that Mr. Newson therefore should receive a lesser sentence than Mr. Zopf.  Further, he contends that Mr. Newson’s personal circumstances were not accorded sufficient consideration.  He notes that Mr. Newson was addicted to cocaine, refers to his parental responsibility and argues that Mr. Newson did not become wealthy from the scheme but rather worked in this drug enterprise to earn income to augment his disability benefits. 

[14]            In reviewing the reasons for sentence, it is important to bear in mind that sentence was imposed on the same day as submissions, that they dealt with a conspiracy involving four persons, and that the essential facts were not in dispute.  Of course, it is the reasons for sentence that we must scrutinize to determine if there is error demonstrated, but they must be read in the context of the entire sentencing proceedings.  Mr. Newson contends that the Associate Chief Justice erred in finding that he was at an equivalent level of the organization as Mr. Zopf.  This is a dispute as to an inference drawn by the sentencing judge.  This Court, of course, may not interfere lightly with the inference of a trial judge as the drawing of inferences is a matter particularly within the purview of the trier of fact. 

[15]            In this case, Associate Chief Justice Dohm demonstrated his awareness of the difference in the roles played by the two men.  He acknowledged that the Crown considered that Mr. Zopf and Mr. Newson were in different positions, to some extent, but concluded that they should be sentenced at the same level.  Contrary to submissions, however, this is not a finding that Mr. Newson was at a second in command level.  Rather it is a conclusion that the degree of involvement and culpability in the overall enterprise is roughly equivalent.  On a review of the record, this is a conclusion that was open to the sentencing judge to make.  A significant portion of Mr. Newson’s submissions on sentencing were directed to that issue and Associate Chief Justice Dohm simply rejected Mr. Newson’s minimization of his importance to the scheme.  I cannot say he erred in his conclusion. 

[16]            Nor, in my view, is the brevity of the reasons for sentence, in relation to Mr. Newson, a basis on which to interfere.  They are sufficient to permit appellate review and to inform Mr. Newson why he attracted the sentence imposed.  The record, including the submissions made by Crown counsel and the four defence counsel, amply demonstrates the significance of the enterprise in which Mr. Newson was engaged, and the importance of his participation.  It is undisputed that he accounted for a disproportionately large share of the drug sales, and he was involved in sales in the nature of warehouse sales.  I do not consider the absence of extended reasons, in this case, an error in principle entitling this Court to substitute a sentence for the one imposed. 

[17]            The real issue is whether the sentence is demonstrably unfit.  It is to this issue that the submissions as to Mr. Newson’s character, lack of relevant prior criminal record, and potential for rehabilitation are relevant. 

[18]            In making this submission Mr. Newson sought to rely upon the fresh evidence.  Notwithstanding the earnest submissions made on his behalf, I do not consider that the new evidence meets the test for admissibility.  Although addressed to the plight of Mr. Newson’s daughter since he was sentenced, the fresh evidence focuses upon the mother’s substance addiction and weaknesses as a custodial parent, both matters known to the sentencing judge.  To this extent the evidence is not really new, but rather more of the same concern that was addressed at the sentencing hearing.  Further, the fresh evidence would not make a difference in the sentence imposed.  It is often the case that a parent’s criminal offending creates hardship for members of the family.  That children are often deprived of parental guidance and care when a parent is incarcerated is inevitable in cases of serious offending by a parent.  Here, even upon his counsel’s submissions, Mr. Newson faces a significant period of incarceration.  Separation from his daughter is one of the hard realities of the situation Mr. Newson has created, and not one that may be cured in the circumstances before us.  I would note, further, that it is not inevitable that Mr. Newson’s daughter must reside in an inappropriate situation, if that be the case, as other avenues for assistance are available.  For these reasons, I would not allow the application to adduce fresh evidence.

[19]            I turn then to the fitness of sentence on the record before us.  Here it is said that Associate Chief Justice Dohm did not have due regard to Mr. Newson’s addiction, contrition, and potential for rehabilitation, with the result that the sentence imposed is demonstrably unfit. 

[20]            Associate Chief Justice Dohm took a stern view of Mr. Newson’s role in the enterprise.  I agree with that view, and with his conclusion that the most significant principles of sentencing in the circumstances are denunciation and general deterrence.  The offence was part of a sophisticated, extensive, and long-lasting enterprise, involved the widespread trafficking of highly addictive drugs, and demonstrated a high degree of criminal organization.  Mr. Newson was a key person in that enterprise at the street level and in selling greater quantities in what may be termed wholesale sales. 

[21]            Nor do I consider the absence of evident wealth arising from the enterprise significant.  As I understand Mr. Newson’s submission, it is that he became involved in the scheme because he had a debt incurred to support an addiction to cocaine, and because his disability pension was not sufficient to support his family, not to become wealthy. His counsel refers us to R. v. Iverson, 2007 BCCA 3 in which this Court reduced a sentence for two counts of possession of methamphetamine and ecstasy for the purpose of trafficking and two counts of production of the drugs, from six years to four years.  In Iverson the Court said “The appellant’s addiction to heroin, while not his primary motivation, obviously contributed to his financial and social disintegration and distinguishes this case from those involving non-addicts who are solely motivated by greed”. 

[22]            But this case is not Iverson.   This case concerns a relatively long lasting and sophisticated operation in which Mr. Newson was a central figure in the distribution of drugs, and his sales were prolific.  These facts and the convictions of all four offenders, establish that Mr. Newson was part of a criminal organization.  In my view, any role that Mr. Newson’s addiction played in his offending is overtaken by the seriousness of the offence, his role in it, and the collective feature of the offence.  I conclude that the fact of addiction does not justify a reduction of sentence by this Court and does not make this sentence unfit. 

[23]            While Mr. Newson was not at the top of the organization as was Mr. Montgomery, and therefore not to the level of the offender in R. v. Pham, 2002 BCCA 560, 176 B.C.A.C. 318 who attracted an eight-year sentence in addition to pre-trial custody, in my opinion the sentence of six years is not a marked departure from sentences customarily imposed for such offences in like circumstances (R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327) and thus not demonstrably unfit. 

[24]            For these reasons I would give leave to appeal sentence, and dismiss the appeal.  I would, as well, dismiss the application to adduce new evidence.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Hall”

I AGREE:

“The Honourable Mr. Justice Tysoe”