IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Goesen pled guilty to a number of drug offences.  The Crown argues that a fit and appropriate sentence is imprisonment for four years; broken down as sentences of, 22 months and 28 months to be served consecutively.  Whereas, counsel for Mr. Goesen, encourages the court to impose a sentence of two years less a day followed by a substantial period of probation.

[2]           In considering an appropriate sentence, this Court has had the benefit of a Pre-Sentence Report, a Psychological Assessment, sentencing authorities, various materials and submissions of counsel.

[3]           As will become clear, Mr. Goesen’s mental health and his drug addiction present significant sentencing challenges.

[4]           On May 2, 2017, the police saw Mr. Goesen huddled in the alcove of a downtown eastside business.  The police approached Mr. Goesen and they noticed a small plastic bag in his hand.  At some point, Mr. Goesen detected the police and he responded by trying to conceal the bag.  Believing the bag contained narcotics the police arrested Mr. Goesen and searched him.

[5]           In Mr. Goesen’s possession, the police located: approximately $1,110 in cash, a cellular telephone, a flip-knife and a quantity of drugs.  With respect to the drugs, the police located four zip lock bags containing:

[6]           Mr. Goesen was released on a PTA, and on May 20, 2017, he was arrested for possessing a controlled substance.  Mr. Goesen consented to remain in custody until June 13, 2017, at which time he was released on a recognizance.

[7]           On July 6, 2017, the police saw Mr. Goesen, who was still bound by his PTA, and an unidentified male standing face to face at the entry to a laneway.  The police observed them conduct a hand to hand transaction.  Believing that a drug offence had occurred, the police detained Mr. Goesen for a drug investigation.  During the detention, Mr. Goesen stated he was not selling; rather, he had given heroin to the male.

[8]           Mr. Goesen’s comments resulted in him being arrested.  When the police searched Mr. Goesen they located the following:

[9]           After his arrest, Mr. Goesen remained in custody until September 12, 2017, at which point he was released on a recognizance.

[10]        Mr. Goesen is thirty-one years old.  When he was young, Mr. Goesen’s mother was diagnosed with a mental illness, this prevented her from providing proper parenting, as such, Mr. Goesen was placed into foster care.  Upon reaching the age of majority, Mr. Goesen had been in thirty foster homes.

[11]        Despite being in many placements, Mr. Goesen was well treated and there is no information to suggest that he was abused.  Between the ages of 9 and 17, he played baseball but stopped due to his increasing drug use.

[12]        Mr. Goesen’s poor school attendance was driven by his drug use and resulted in him being expelled when he was in grade nine.  Thereafter, Mr. Goesen went to alternative schools, but he failed to achieve sufficient marks.  Mr. Goesen advised Cheryl Redding, the writer of the Pre-Sentence Report, that school was hard because he suffered from a learning disability.

[13]        Until the age of twenty-three, Mr. Goesen worked in a variety of labour-type positions.  In this regard, he primarily worked in the restaurant industry and for various landscaping companies.  Currently, Mr. Goesen is unable to work and he has been on disability since 2011.

[14]        Sadly, Mr. Goesen has a long history of mental health issues which are complicated by his extensive drug use.  As for his mental health issues, when he was a youth, Mr. Goesen was diagnosed with attention deficit hyperactivity disorder and he was placed on Ritalin until the age of seventeen. 

[15]        In 2006, Mr. Goesen was diagnosed with anxiety.  In 2013, he was hospitalized with a drug-induced psychosis.  Thereafter, and over the years, Mr. Goesen has had a number of psychiatric admissions, all of which have resulted in various diagnoses. 

[16]        In 2014, psychologist Dr. Strangeland wrote:

[17]        Personality testing was done and Dr. Stangeland observed that drug abuse has been a prominent source of Mr. Goesen’s difficulties.  He endorsed a finding that Mr. Goesen had prominent narcissistic, compulsive and avoidant personality features and he offered a diagnosis of schizoaffective disorder complicated by polysubstance abuse including crystal methamphetamine, cocaine and marihuana.

[18]        In 2015, Forensic Psychiatric Services felt that Mr. Goesen warranted a diagnosis of “Schizoaffective disorder, bi-polar type and anti-social personality disorder.”  In 2016 and 2017, Mr. Goesen attended scheduled appointments with a mental health team and he received bi-weekly injections.  His treatment team described Mr. Goesen as being cooperative.

[19]        When not taking his medication or when abusing drugs, Mr. Goesen becomes paranoid, and as noted by Ms. Redding, this becomes concerning as Mr. Goesen will then carry weapons for protection.

[20]        In April of 2018, Dr. Kerr prepared a psychiatric assessment where he stated at page nine:

[21]        Dr. Kerr also observed that Mr. Goesen’s risk for future offending is moderate to high.  He recommended that when Mr. Goesen is released that he should be referred for psychiatric follow-up with a local forensic clinic.

[22]        As for drug use, Mr. Goesen started using marihuana at 15 years of age, crack cocaine at approximately 19, and crystal methamphetamine at age 27.  Mr. Goesen has had periods where he has abstained from using cocaine, and crystal methamphetamine.  As for marihuana, Mr. Goesen uses it frequently and at one point he had a licence to obtain medicinal cannabis.

[23]        Mr. Goesen has been to a number of recovery homes and in some instances he has been a repeat resident.  Mr. Goesen’s residency typically ranges from two days to three months with his marihuana use being the primary reason for his discharge.

[24]        Between September 2017 and December 2017, Mr. Goesen was on bail and living at a residence operated by VisionQuest Recovery Society.  Prior to his discharge, Mr. Goesen had completed an anger management program, participated in life skills training, Narcotics Anonymous sessions and church group.  He was recognized as a positive role model and he was given the position of Cabin Monitor. 

[25]        Mr. Goesen stopped living at VisionQuest Recovery Society after he was admitted to hospital.  The admission was the result of Mr. Goesen becoming paranoid and self-reporting to staff that he was hearing voices.

[26]        Mr. Goesen’s stay in the hospital was not prolonged.  It was discovered he had accessed street drugs which resulted in leaving the hospital.  As such, a warrant was issued for failing to comply with his recognizance.  On January 6, 2018, Mr. Goesen was arrested on the warrant and has been in custody since that time.

[27]        While in custody Mr. Goesen completed the following life skills modules: orientation, substance abuse 1, substance abuse unit 1, substance abuse module 1, substance abuse module 2, substance abuse unit 2, healthy relationships unit 1, substance abuse unit 3, healthy relationships unit 3, communication skills, and money management.

[28]        Mr. Goesen’s criminal history started when he was a youth; thereafter, he has convictions for: assaulting a police officer, theft, uttering threats, possession of a weapon for a dangerous purpose, breach of probation, possession for the purpose of trafficking, and possession of a controlled substance.  The sentence imposed for the offence of possession for the purpose of trafficking was 103 days plus probation.

[29]        When one reviews Mr. Goesen’s offending dates, it becomes clear that there are some gaps in his substantive offending.  Specifically, January 2008 to December 2013, December 2013 to November 2015, and January 2016 to April 2017.  Although these gaps are somewhat brief, for an individual in Mr. Goesen’s circumstances they are noteworthy and speak to the benefits that he derives from community based psychiatric services and support.

[30]        The Crown argues the principles of denunciation and deterrence, combined with the circumstances of the instant matter, as well as, sentencing cases, all support the imposition of a global sentence of four years less time already served.  The sentence would be made up of 22 months and 28 months served consecutively.  In support, the Crown relies on: R. v. Smith, 2017 BCCA 112; R. v. Forsberg (27 September 2017), Victoria 167638-4-C, 167641-2 (Prov. Ct.); R. v. Butler, 2017 BCPC 315; and, R. v. Fyfe, 2017 SKQB 5. 

[31]        Counsel advocates that a fit and appropriate sentence is a custodial sentence of two years less a day followed by a lengthy period of probation.  Counsel asserts this approach would assist Mr. Goesen with his mental health and drug addiction. 

[32]        Counsel also points out, the four year custodial sentence advocated by Crown is more consistent to those cases where the offender’s conduct was more aggravating in terms of their position; street level or “higher up”, and with the quantity of drugs involved.  These cases include: R. v. Lee, [2018] B.C.J. No. 678; R. v. Mann, [2017] B.C.J. No. 2663; R. v. Duregger, 2018 ONSC 1749; and, R. v. Abraham, 2017 BCSC 2463. 

[33]        Sections 718, 718.1 and 718.2 of the Criminal Code outlines the purpose and principles of sentencing:  

[34]        In addition to the above, section 10 (1) of the Controlled Drugs and Substances Act, states:

[35]        Denunciation and deterrence are generally the primary sentencing objectives for those offences involving fentanyl.  As such, those who commit offences related to the trafficking of fentanyl engage in serious criminal conduct, and absent exceptional circumstances, they can expect a custodial sentence: R. v. Smith, 2017 BCCA 112. 

[36]        It is clear Mr. Goesen’s conduct demands a sentence wherein the primary objectives of the sentence are denunciation and deterrence.  Despite this, and given Mr. Goesen’s addiction and mental health issues, any sentence imposed would best serve him and protect the public if Mr. Goesen’s rehabilitation is also considered. 

[37]        A fundamental principle of sentencing is, the sentence imposed must be proportionate to the gravity of the offence and the degree of the offender’s responsibility.  

[38]        In the instant case, Mr. Goesen’s offences are serious.  The drugs he possessed are highly addictive, and in the case of fentanyl, the drug visits upon the user a substantial risk of death.  Finally, it is noteworthy that, the maximum sentence available for the drugs in issue is life imprisonment.

[39]        As for the degree of Mr. Goesen’s responsibility, he was drug addicted and suffering from mental health issues at the time of his offences.  While these factors do not absolve Mr. Goesen of responsibility, they are factors to be considered and I view them as reducing some of Mr. Goesen’s responsibility: R. v. Anthony-Cook, 2015 BCCA 22; R. v. Dickson, 228 C.C.C. (3d) 450, 2007 BCCA 561; R. v. Batisse, 2009 ONCA 114; R. v. Belcourt, 2010 ABCA 319; R. v. Resler, 2011 ABCA 167; R. v. Muldoon, 2006 ABCA 321; and, R. v. Ayeorich, 2012 ABCA 82. 

[40]        It is aggravating that Mr. Goesen was on probation and subject to judicial interim release when he committed his offences.  Also aggravating are: Mr. Goesen’s related criminal record, and the nature of the drugs involved, in that they are addictive and can be lethal.

[41]        It is somewhat mitigating that, Mr. Goesen’s mental health and addiction issues were significant factors contributing to his offences.  In other words, he was not trafficking for profit; rather, his offending was driven by his addiction and mental illness.  Further mitigation is Mr. Goesen’s guilty plea.  In this regard, his plea was early and it saved the state the time and expense associated with a prosecution.  Moreover, the guilty plea demonstrates remorse and an acceptance of his wrong doing.  A final mitigating feature is that while in custody Mr. Goesen has made efforts to be productive as evidenced by the various programs he has completed.  

[42]        Counsel presented the Court with a number of cases as an indicator of sentences that have been imposed for offences involving fentanyl. 

[43]        In R. v. Smith, 2017 BCCA 112, the Crown’s appeal of Mr. Smith’s sentence of six months for street-level trafficking in fentanyl was dismissed on the basis that the sentence reflected the public’s awareness regarding the dangers of fentanyl at the time of Mr. Smith’s offence.  Noteworthy, is the court established a range for fentanyl trafficking offences, as starting at 18 months and possibly exceeding 36 months.  

[44]        In R. v. Forsberg (27 September 2017), Victoria 167638-4-C, 167641-2 (Prov. Ct.), Mr. Forsberg received a four year sentence for the possession of fentanyl for the purpose of trafficking.  Mr. Forsberg was an Indigenous offender.  His offence occurred within weeks of having been arrested for possessing cocaine for the purpose of trafficking.  He had two previous convictions for either trafficking or possession for the purpose of trafficking wherein he received a significant jail sentence.  Mr. Forsberg was an addict; however, the sentencing judge reasoned that the amount of cash found on Mr. Forsberg demonstrated that his purpose in selling was to do more than just feed his addiction.  The sentencing judge also observed that Mr. Forsberg had not made “much” of an effort to engage in rehabilitation and there was no corroboration of his treatment or employment.  

[45]        In R. v. Butler, 2017 BCPC 315, Mr. Butler received a 19 month sentence followed by probation for possessing 8.3 grams of cocaine and fentanyl for the purpose of trafficking.  Mr. Butler was forty-one years old and had a lengthy criminal record which was the product of a long standing drug addiction.  Over the years Mr. Butler had made several attempts to overcome his addiction and while in custody he participated in substance abuse programming.  

[46]        In R. v. Fyfe, 2017 SKQB 5, Mr. Fyfe was sentenced to two consecutive sentences of two and one-half years for two counts of trafficking in fentanyl.  The second offence occurred while he was on judicial interim release and one of his offences was linked to the death of a young man.  Mr. Fyfe was twenty-three years old and he did not have a criminal record.  Despite Mr. Fyfe being a drug user, the sentencing judge concluded the trafficking offences were not committed for the purpose of supporting his own habit.  Finally, the sentencing judge determined the range of sentence for trafficking in fentanyl started at two years, which is inconsistent from the range established in Smith, supra. 

[47]        In R. v. Lee, [2018] B.C.J. No. 678, the accused received a 48 month sentence for possessing, cocaine, heroin/fentanyl, methamphetamine, and GHB (4-hydroxybutanoic acid) for the purpose of trafficking.  The accused was charged after a vehicle in which he was a passenger was stopped and searched.  During the search the police located a firearm, ammunition, 11.7 ounces of cocaine, 65.7 grams of heroin/fentanyl, 9 ounces of crystal methamphetamine and 500 millilitres of GHB.  The accused was twenty-seven years old and he was on probation when he was arrested.  His criminal record included two convictions for possession of a controlled substance and seven convictions for possession for the purpose of trafficking.  The sentencing judge found as aggravating factors that the accused was a mid-level dealer and that a firearm was located at the time of his offence. 

[48]        In R. v. Mann, [2017] B.C.J. No. 2663, the court sentenced two offenders, K. Mann and S. Mann, for drug offences related to a dial-a-dope operation involving fentanyl, heroin, 3-methylfentanyl, cocaine and carfentanyl.  As for K. Mann, he received a four year sentence for selling $80 worth of fentanyl to an undercover police officer, and for the possession of fentanyl which was found during the search of his home.  K. Mann, was twenty years old and without a criminal record.  He had the support of his family and he was remorseful.  Of note is, the sentencing judge found it aggravating that the operation was mid-level with a dial-a-dope method of distribution. 

[49]        S. Mann received a four year sentence for his drug offences.  In this regard, he sold fentanyl, heroin, and carfentanyl on five occasions to an undercover officer.  In addition, a search of S. Mann’s residence resulted in the police finding cocaine, carfentanyl and a loaded revolver.  S. Mann was twenty-three years old.  He did not have a criminal record and at the time of his offences he was using opioids.  Of note is, the sentencing judge found it aggravating that the operation was mid-level, involving a dial-a-dope method of distribution and that a loaded firearm was located.

[50]        In R. v. Duregger, 2018 ONSC 1749, the accused received a sentence of five years for possessing fentanyl, cocaine and methamphetamine for the purpose of trafficking.  The accused was charged after police stopped and searched his vehicle.  During the search, police located 49.3 grams of fentanyl, 51 grams of cocaine, and 103 grams of methamphetamine.  The accused was 33 years old, married with 6 kids and he had a criminal record with 17 previous convictions. 

[51]        With respect to the above, I observe that sentencing ranges do not represent inflexible boundaries; rather, they are guidelines and there may be circumstances justifying imposing a sentence that is above or below the established range.  In R. v. Bernier, 2003 BCCA 134, Madam Justice Southin commented on “ranges” at paragraph 42:

[52]        Similarly, and recently, in R. v. Nasogaluak, 2010 SCC 6 (CanLII), [2010] 1 S.C.R. 206, at para. 44, LeBel J. said:

[53]        In addition to the above, I find the cases referred to are of assistance, but I remain somewhat guarded because sentencing is an individualized exercise and the imposition of a fit sentence requires the sentencing judge to consider the offender’s individual circumstances: R. v. Pham, 2013 SCC 15; and R. v. Ipeelee, 2012 SCC 13. 

[54]        I also appreciate that some of the cases cited are distinguishable from the instant matter in that: they involved greater quantities of drugs, the offenders were typically mid-level dealers, the presence of a weapon, and the lack of mental health issues interplay with a strong addiction.

[55]        Mr. Goesen’s offences were serious and committed against the backdrop of drug addiction and mental health illness, which, are factors relevant to a proportional sentence.

[56]        With respect to the four year sentence advocated by the Crown, in my view, such a sentence would be disproportionate in that it would fail to acknowledge the impact that Mr. Goesen’s mental health and addiction had on his moral responsibility.  Moreover, such a sentence would be out of step with the sentences imposed in the cases cited above. 

[57]        In my view, any sentence imposed must denounce and deter, and provide Mr. Goesen with community support such that his prospects for rehabilitation are enhanced.  In considering this approach I am mindful of comments from the Supreme Court of Canada, in R. v. Lacasse, 2015 SCC 64, at para. 4: 

[58]        With the above in mind, I sentence Mr. Goesen to a global custodial sentence of two years less a day which is 729 days.  Deducted from 729 will be 236 days for a total remaining sentence of 493 days.  The 236 days is the credit accumulated based on 157 days in pre-trial custody; credited at 1.5 days for each day spent in custody, hence, equalling a credit of 236 days.  

[59]        Finally, and for clarification, I have imposed a global sentence because I see the offences strongly linked by Mr. Goesen’s drug addiction and mental health.  Moreover, to impose separate consecutive sentences would be disproportional. 

[60]        Upon completion of his custodial sentence Mr. Goesen will be placed on probation for two years. 

[61]        Mr. Goesen will be on probation for a period of two years.  The conditions of the probation order are as follows:

[62]        Pursuant to s. 109 of the Code, Mr. Goesen is prohibited from possessing any firearm, cross bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, and explosive substance for life.

[63]        Mr. Goesen consents to the forfeiture order being sought by the Crown, as such, it is granted.

[64]        The Crown applies for an order to obtain a sample of Mr. Goesen’s DNA. 

[65]        Pursuant to s. 487.054 of the Code, Mr. Goesen’s offences are “secondary” designated offences and by operation of s. 487.051 (3) of the Code, a court may issue an order authorizing the taking of a bodily sample for the purpose of a DNA analysis if the court is satisfied that such an order is in the best interests of the administration of justice. 

[66]        In deciding if a DNA order is in the best interests of the administration of justice, I must consider Mr. Goesen’s criminal record, the offences for which he is being sentenced, the circumstances surrounding their commission, and the impact that an order would have on Mr. Goesen’s privacy and security of his person. 

[67]        Mr. Goesen’s criminal record contains convictions for violence, breaches of court orders, possession of a weapon and drug offences.  The offences for which Mr. Goesen is being sentenced are drug offences and there is nothing particularly unique in their circumstances. 

[68]        As for Mr. Goesen’s privacy and security of his person, I note the taking of a DNA sample is minimally intrusive and the results are guarded by statute.  I also observe that DNA is an investigative aid in that it identifies and eliminates those suspected of having committed criminal offences.   

[69]        After considering the relevant factors, I am satisfied that the taking of Mr. Goesen’s DNA is in the best interests of the administration of justice and therefore the Crown’s application is granted.

[70]        The victim fine sur-charges are payable on or before June 1, 2020.