IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Bacon,

 

2012 BCSC 983

Date: 20120504

Docket: 25227

Registry: Vancouver

Regina

v.

Jarrod Bacon and Wayne Scott

Before: Associate Chief Justice Cullen

Oral Reasons for Sentence

(Re Accused: Jarrod Bacon)

Counsel for the Crown:

P. LaPrairie
M. Loda

Counsel for the Accused, Bacon:

J. Ray

Place of and Date of Hearing:

Vancouver, B.C.

April 27, 2012

 

 

Place and Date of Judgment:

Vancouver, B.C.

May 4, 2012

 

 


[1]             THE COURT:   The offender, Jarrod Bacon, has been found guilty of conspiracy to traffic in cocaine between February 20, 2009 and August 28, 2009. It is a serious offence which carries a maximum penalty of life imprisonment.

[2]             The conspiracy was evidenced by a police investigation which featured a police agent, who himself had a significant history in the drug trade, who interested the offender in the prospect of purchasing drugs from him. In fact, there were no such drugs and much of the evidence consisted of the police agent's dealings with the offender's co-accused, Wayne Scott, through whom he connected with the offender, and the offender himself in negotiations over the prospective but counterfeit transaction.

[3]             The transaction revolved around the purported importation of 100 kilograms of high quality cocaine from Mexico which the police agent represented to be part of a stable, ongoing source of supply to him. In the result, an agreement was reached between the police agent and the offender and the offender's funders to purchase the cocaine for $30,000 a kilogram. The identity of the funders, although hinted at in the evidence, was never firmly established, although according to the offender they or he had a $3 million dollar float and a ready distribution system.

[4]             It was anticipated by the offender Bacon and his funders that the cocaine would be sold for $38,000, and $5,000 would be split between the offender Bacon and his partner or funder, and $3,000 would be paid to the co-accused Wayne Scott. The total value of 100 kilograms of cocaine was between $3 million and $4.2 million, depending on how, and in what quantities, it was sold.

[5]             The object of the conspiracy was not the notional transaction involving the police agent to acquire the cocaine. Rather, it was the agreement reached between Bacon, Scott, and others unknown, that is the funder or funders, to traffic the cocaine once acquired, in lots of 10 kilograms, and to finance and maintain the enterprise on an ongoing basis until all the cocaine was trafficked.

[6]             The profit to the conspirators was to come from the profits generated by the trafficking. The negotiations between Bacon and G.L., that is the police agent, directly and through Scott, was evidence in furtherance of the conspiracy which centred on an agreement to traffic the drugs once acquired, not on the acquisition of the drugs itself.

[7]             Bacon's role in the conspiracy to traffic was to negotiate with G.L., partly through Scott, to acquire the drugs and to arrange through his funder or funders to finance the acquisition and to distribute the drugs, once acquired, on an ongoing basis until all the drugs were disposed of.

[8]             The offender Bacon is 29 years old. He is unmarried but has a child by the daughter of his co-accused Wayne Scott. I was not informed of any history of employment. In his evidence at trial, in which he claimed to be surreptitiously planning to rob G.L. of 10 kilograms of the drugs on his own, the offender Bacon described himself as a criminal. In intercepted discussions with G.L., he described himself as an enforcer. When arrested he was wearing a bulletproof vest. In his intercepted communications, he appeared knowledgeable and experienced in the cocaine trade.

[9]             He has a criminal record consisting of the following convictions and sentence: 

-        May 31, 2002, fail to comply with recognizance, $300 fine and probation for six months;

-        October 1, 2002, unauthorized possession of a restricted/prohibited weapon, $500 and an order under s. 109 of the Criminal Code barring him from possession of any weapons;

-        April 21, 2004, flight while pursued by a peace officer, for which he received six months and was prohibited from driving for three years;

-        August 18, 2006, another conviction for flight while pursued by a peace officer, for which he received two months and probation for 18 months. He was also convicted at the same time of driving while disqualified and production of a scheduled substance for which he received six months; and

-        On December 14, 2007, he was convicted of driving while disqualified and failing to comply with a probation order, was given two months and credit for 120 days of pretrial custody.

[10]         At the time of this offence, the offender was on bail arising from charges of possession of restricted, prohibited weapons. He was ultimately acquitted of those charges.

[11]         The offender's family context does not appear to be a positive force in his life. One brother, Jonathan, was killed in a shooting in August 2011, and another brother is in custody awaiting trial on serious charges. There is some evidence that his parents were aware of his involvement in the matter before the Court as it was transpiring, although the offender denies that. At any rate, the circumstances of his life and experience to this point do not permit much optimism for his rehabilitation or inclination towards leading a law-abiding life. He appears committed to a criminal lifestyle.

[12]         It is the Crown's submission and position that the appropriate sentence for the offender Bacon for this offence is a term of imprisonment for 20 to 21 years. The Crown concedes that he is entitled to credit for time served of four years and ten months, based on a two-for-one credit for the two years, and five months he has been in custody awaiting trial and sentencing on this case.

[13]         The Crown also seeks a mandatory firearms prohibition order for life under s. 109 of the Criminal Code. The Crown also seeks an order under s. 487.017 of the Criminal Code for the taking of bodily substances for the purpose of DNA analysis. The Crown also seeks an order pursuant to s. 743.6 of the Criminal Code that the offender Bacon must serve one-half of his sentence, or 10 years, whichever is less, before he is eligible for parole.

[14]         Counsel for the offender takes the position that the appropriate range of sentence in the case at bar is six to ten years, and that in the circumstances of the present case, an appropriate sentence is eight years which, after factoring in "dead time" would lead to an additional sentence of three years and two months. The offender resists the Crown's application for an order under s. 743.6.

[15]         Both Crown and defence agree that the fact that the offender was on bail at the time of the offence is an aggravating factor, as is the ongoing nature of the conspiracy to traffic in significant quantities of a very dangerous drug.

[16]         The parties also agree that the offender's conduct at trial in giving evidence, which I rejected as untrue, is not an aggravating factor justifying a higher sentence. However, it is something which can be taken into account in assessing issues of mitigation, such as the presence or absence of remorse, the attitude of the offender, his prospect for rehabilitation, and his acceptance of responsibility for the offence.

[17]         A number of things divide the Crown and the defence leading to their different submissions on sentence. It is the Crown's position that, although this was a reverse-sting operation, where there is no actual prospect of the trafficking operation contemplated by the conspiracy, it is not a factor to consider. The defence view of it is that it is a factor, that it is not a mitigating factor in the sense of reducing the offender's moral complicity or culpability for the offence, but that it does reduce the gravity of the offence, a fact which ought to condition the sentence being imposed.

[18]         The Crown's range of sentence is based on a series of cases which the defence argues are distinguishable from the present case. The offender submits that the Crown bases its position on cases of conspiracy to import large quantities of drugs which the law treats as inherently more serious than conspiracy to traffic in drugs. The offender puts forward a range of cases based on conspiracy to traffic, which in his submission justify a considerably lower range than those relied on by the Crown. The offender also points to some distinctions between himself and offenders in the cases relied upon by the Crown to submit the sentences should be different.

[19]         The principles and purposes of sentencing are codified and, insofar as relevant to this case, read as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender . . .

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[20]         The provisions of s. 743.6, which are engaged by the Crown's submissions in relation to the offender Bacon, read as follows:

743.6 (1)  Notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

[21]         I am in general agreement with Mr. Ray's submission that, at least in relation to Schedule I - Drugs, the offence of importing (and, by extension, conspiracy to import) is an offence of greater gravity than trafficking (or, by extension, conspiracy to traffic). That point was made in R. v. Sandhu, 2003 BCSC 2033, at para. 18, where Williams J. held, in part, as follows:

The courts recognize importing as an offence of greater gravity than trafficking in the substance. That point was articulated by Mr. Justice Seaton in R. v. Saulnier [[1987] B.C.J. No. 2497 (BCCA)]:

The additional element of introducing drugs into Canada is a valid reason for thinking that importing is a more serious offence than trafficking. As a new scale of sentences for importing evolves it will indicate higher sentences than are found in trafficking cases.

Numerous other decisions affirm this proposition.

[22]         Similarly, in R. v. Hein, [2008] B.C.J. No. 978 (BCCA), the Court held, in part, at para. 28:

It is true that the courts treat importing of cocaine more [seriously] than trafficking: see, for example, R. v. Saulnier [citation omitted].

[23]         In R. v. Eshghabadi, [2009] B.C.J., Madam Justice Wedge noted:

Clearly, as Saulnier states, importation is more serious than trafficking . . .

[24]         In R. v. Ma, 2005 BCSC 493, relied on by the Crown, Madam Justice Holmes acknowledged that courts "have described importing as more serious than possession for the purposes of trafficking...[but] any binding authority has done so in the context of Schedule I - Drugs". Cocaine is, of course, a Schedule I drug.

[25]         Thus, I accept as a general proposition that the importation of large quantities of cocaine into Canada is regarded by the law as a more serious offence or, to use the words of s. 718.1, an offence of more gravity than the offence of trafficking. Accordingly, offences of importing or conspiracy to import attract a higher range of sentences than offences of trafficking or conspiracy to traffic.

[26]         The introduction of a drug not otherwise available into Canada is a foundational step in the process by which its toxic effects spread throughout the community. Treating importation more severely than trafficking is logically conducive to abating the great social harm inflicted by those drugs.

[27]         For that reason, the sentences imposed for importation or conspiracy to import, as in the cases relied on by the Crown in the present case, are conspicuously higher than those imposed for trafficking or conspiracy to traffic.

[28]         As to the question whether a "reverse sting", that is a conspiracy to traffic based on a police-induced false belief in the existence of drugs, is concerned, I do not think a general proposition can be stated as to its impact on the gravity of the offence. Clearly the law contemplates conspiracy offences that are committed at the instigation of the police who will completely control the impact of the offence. In my view, whether, and to what extent, an offence which could not be committed conditions its gravity is something to be determined on a case-by-case basis.

[29]         As pointed out in United States of America v. Dynar, [1997] 2 S.C.R. 462, the offence of conspiracy has its own unique features that implicate its gravity as an offence. The Court in Dynar described the crime of conspiracy as having "a long and malevolent history", noting that:

The very fact that several persons in combination agree to do something has for many years been considered to constitute “a menace to society” . . .

[30]         The Court explained that the crime is sustained even in the face of impossibility:

Those who conspire to do something that turns out to be impossible betray by their actions a propensity and aptitude to commit criminal acts; and there is no reason to believe that schemers who are thwarted on one occasion will not be successful on the next.

[31]         The Court also noted:

 . . . it is clearly in society’s best interests to make it possible for law enforcement officials to intervene before the harm occurs that would be occasioned by a successful conspiracy or, if the conspiracy is incapable of completion, by a subsequent and more successful conspiracy to commit a similar offence.

[32]         Thus, to a great extent, the gravity of the offence of conspiracy lies in the willingness of people to combine together and in the propensity and attitude it betrays, rather than in the actual harm that it is capable of achieving. Thus, I do not think it could be said that the impossibility of achieving the substantive offence necessarily detracts from or reduces the gravity of a conspiracy to commit it in all cases.

[33]         In the circumstances at bar, where the evidence of the conspiracy also revealed the offender Bacon's propensity for and facility with the object of the conspiracy, the fact that it was impossible to commit has, in my view, less impact on the gravity of his offending than it would in a case involving a person without such a propensity or facility.

[34]         As I mentioned, all of the cases relied on by the Crown relate to offences of importation and/or conspiracy to import cocaine, which are treated more severely. In R. v. Epp, 2006 BCCA 570, it dealt with 126 kilograms of cocaine imported from the U.S. in a tanker truck by a person hired for the one occasion. A 14 year sentence at trial was reduced to 10 years.

[35]         In R. v. Frost, 2011 ONSC 6448, the accused was convicted of conspiracy to import 1,360 kilograms of cocaine worth about $54 million to $340 million dollars, and was sentenced to 16 and one-half years. He was regarded as a key player in the conspiracy. The conspiracy involved real cocaine.

[36]         In R. v. Joubert, the accused was convicted of conspiracy to import 51 kilograms of cocaine in an elaborate scheme resulting in the importation of the drug from South America. He was sentenced to 20 years. He was described as the "key figure" and "directing mind...behind [the] importing scheme", and it had been used a number of times before and involved a significant number of people.

[37]         In R. v. LePage and Oliynyk, 2010 BCCA 249, Oliynyk received 18 years and LePage 12 years for a conspiracy to import and conspiracy to traffic in 32 kilograms of cocaine worth up to $2.7 million. It was regarded as part of an ongoing venture, and the accused Oliynyk had been previously convicted of possession of cocaine with intent to distribute in the United States and given a sentence of 10 years. He was regarded as "undeterred".

[38]         In R. v. Malanca, 2007 ONCA 859, the accused was convicted of conspiracy to import and importing 270 kilograms of cocaine. At trial, he was given a life sentence which was reduced on appeal to 19 years. He was regarded as "the boss" of the organization.

[39]         In R. v. Sandhu, 2003 BCSC 2033, the accused received a nine year sentence based on conspiracy to import about 100 pounds of cocaine.

[40]         In R. v. Sibrian, 2011 BCSC 1516, the accused was sentenced to eight years for importation of 65 kilograms as a truck driver. In other words, he was in the position of a courier.

[41]         The offender's authorities are conspiracy to traffic or trafficking cases which generally reflect a lower range of sentences than the importing or conspiracy to import cases relied on by the Crown. It is important to note that what the accused was charged with and convicted of in this case is conspiracy to traffic, not to import. It would therefore not be appropriate to use the importing cases as a measure of the range of sentences applicable to the case at bar.

[42]         The defence cases include R. v. Lising and Pires, 2001 BCSC 1891, a conspiracy to traffic cocaine brought a sentence of four and one-half years for what was described as a busy wholesale commercial business, ongoing over a period of several months.

[43]         In R. v. Camara, 2006 BCCA 308, the offender's sentence of five years was upheld. In R. v. Fehr and Pugliese, sentences of eight and nine years were imposed for conspiracy to traffic in 69 kilograms of cocaine and other drugs.

[44]         In R. v. Newson, 2008 BCCA 28, a sentence of six years was upheld for a sophisticated dial-a-dope operation.

[45]         In R. v. Terezakis, seven and a half years was imposed for conspiracy to traffic in cocaine and heroin and two related trafficking counts.

[46]         Although not cited by either counsel, the case of R. v. Battista, [2011] O.J. No. 4867, is helpful in establishing a range of sentences "for drug trafficking primarily at the multi-kilo level". In that case, the trial judge, Parfett J., concluded:

...the range of sentenc[ing] for trafficking in cocaine at the multikilogram level would appear to be 5 to 13 years.

[47]         In R. v. Powell, [2001] O.J. No. 5933, a sentence of 13 years was imposed. On appeal, the sentence was upheld by the Ontario Court of Appeal at [2005] O.J. No. 2975, which described the sentence as "at the very high end of the range", noting that:

The [accused] was engaged in a vast conspiracy extending over a year during which he trafficked in at least 22 kilograms of cocaine and . . . discussed needing to launder money at the rate of $100,000/day.

A significant aggravating factor in that case was that he "was on bail pending appeal for a drug trafficking offence while he committed these offences."

[48]         All the cases emphasize, and I accept, that deterrence and denunciation are the primary principles under consideration.

[49]         I conclude, having regard for the circumstances of this case, including the fact that there was no actual seizure of cocaine being spread throughout the community as a result of this particular conspiracy, the fact that the offender Bacon was on bail at the time of the offence, albeit for offences that he was ultimately acquitted of, the notional size of the trafficking operation under consideration and its ongoing nature, the offender's lack of remorse and apparent commitment to a criminal lifestyle, and the presence of his criminal record all combines to warrant a sentence of 12 years' incarceration.

[50]         Such a sentence is at the high end of the range of sentences for trafficking, for conspiracy to traffic. It is slightly less than the sentence in R. v. Powell, as I am satisfied that Powell is an exceptional case where an accused, who had been convicted of trafficking and was on bail pending appeal, was involved in a conspiracy to traffic, but where the cocaine actually made its way into the community and caused the harm which the law seeks to repudiate.

[51]         Here, there are similar but not the same circumstances. As I noted, the offender Bacon was on bail at the time of this offence, but not for something for which he was convicted. The quantity of cocaine under consideration in this conspiracy was very considerable, and it was anticipated to be an ongoing operation. The offender's record and apparent lack of remorse reduces the likelihood of his rehabilitation, and the circumstances taken as a whole warrant a sentence that firmly repudiates the evil of people acting in combination and for motives of greed to inflict the broad social and personal harm that drug trafficking entails.

[52]         As to the Crown's submissions for an order under s. 743.6, I do not consider it necessary in the circumstances. The rationale for the exercise of the Court's power under s. 743.6 was summarized in R. v. Zinck, 2003 SCC 6, at para. 33 which reads as follows:

As mentioned above, courts must perform a double weighing exercise. First, they must evaluate the facts of the case, in light of the factors set out in s. 718 of the Code, in order to impose an appropriate sentence. Then, they must review the same facts primarily in the perspective of the requirements of deterrence and denunciation, which are given priority at this stage, under s. 743.6(2). The decision to delay parole remains out of the ordinary, but may and should be taken if, after the proper weighing of all factors, it appears to be required in order to impose a form of punishment which is completely appropriate in [all] the circumstances of the case. This decision may be made, for example, if, after [the] consideration of all the relevant facts, principles and factors at the first stage, it appears at the second stage that the length of the [prison] term would not satisfy the imperatives of denunciation and deterrence.

[53]         Here, I have imposed a sentence at the high end of the range, based largely on considerations of deterrence and denunciation, and in light of the offender's personal characteristics, which include his lack of remorse. This is not a case where the offence is one of unusual violence, brutality, or degradation which requires a strong expression of denunciation above and beyond what a fit sentence will provide.

[54]         So far as the offender's personal characteristics are concerned, I am satisfied that an assessment of his potential for rehabilitation and parole is a matter best left to the parole authorities who, of course, will have the benefit of his past record and attitudes, as well as the ability to assess him in the future.

[55]         Accordingly, I sentence the offender Bacon to 12 years in custody. He is, as agreed by counsel, entitled to four years and 10 months for pretrial custody, leaving him a sentence of seven years and two months to serve.

[56]         I will also make the ancillary orders sought by the Crown; however, I will waive the victim fine surcharge.

“A.F. Cullen A.C.J.”

_________________________

Associate Chief Justice Cullen