Reduced Sentencing When Judge Finds the Accused “a Changed Man”

When you hire Kruse Criminal Law, our priority is to have your criminal charges dismissed. However, sometimes that’s not possible, even after mounting a strong defence based on the circumstances of your arrest, in which case we will fight to have your sentencing reduced.

In a recent case, R. v Carter, a man was convicted of two counts of trafficking in cocaine and two counts of possession of the proceeds of crime. His defence counsel applied for a stay or if not granted, a reduced sentence. In a 2016 trial, the judge dismissed the application for a stay but ruled that there would be a substantial reduction in sentencing, in light of the defendant’s responsible and changed behaviour since the time of his arrest.

The defendant was arrested in 2011, when he sold crack cocaine to an undercover police officer. He did not testify and no evidence was presented in his defence, and he was found guilty beyond a reasonable doubt. In the 2016 trial to decide sentencing, his defence counsel sought a conditional sentence to be served in the community (i.e. basically, house arrest). The Crown opposed this sentence and stated six months in jail is an appropriate sentence, or at least 90 days plus 12 months’ probation. However, the Crown admitted that a conditional sentence is not statute-barred since the offences occurred before the amendments to the Criminal Code section 742.1.

In his determination on sentencing, Justice O’Marra considered the fact that the accused has a good relationship with his young son (born in September 2012) who lives with the accused’s mother, and he frequently visits and supports both his son and mother. It was also noted that the defendant has no criminal record and did not breach his bail conditions in the five years since the arrest.

Justice O’Marra asserted that cocaine is a dangerous drug and anyone who traffics in such drugs endangers their own life and the public, and for these reasons, denunciation is an important factor in deciding sentencing for this crime. The judge agreed with the Crown that normally, a custodial sentence of at least six months is appropriate for these offences. However, Justice O’Marra found that the accused is “not the same person who was charged as a teenager”. He has shown himself to be a responsible father who supports his spouse and child, which reflects positively for his rehabilitation. Justice O’Marra was also convinced that the accused does not constitute a danger to the safety of the community. On the basis on his changed behaviour and circumstances, the judge decided that a six-month conditional sentence is fair and appropriate, and there is no need for probation in this case.

The six-month sentence included: 4 months on count one; 2 months on count two; 4 months on count three to be served concurrently with the 4 months for count one; and 2 months on count four to be served concurrently with the 2 months on count 2. The accused was also bound by the following terms for the six months of sentencing.

• Keep the peace and don’t break any laws.
• Appear before the court when required to do so.
• Report to a supervisor when required by the supervisor.
• Remain in Ontario unless written permission to go outside Ontario is obtained in advance from the supervisor or the court.
• Notify the court or supervisor in advance of any change of name or address and promptly if there are changes in employment or occupation.
• Reside at the address approved by your supervisor.
• Abstain from owning, possessing or carrying any weapon as defined by the Criminal Code.
• Abstain from the purchase/possession/consumption of alcoholic beverages and illegal drugs.
• For the first two months of the conditional sentence order, you must remain in your place of residence at all times, unless travelling to and from work, when travelling to and from educational or religious events approved by your supervisor, medical emergencies, dental/medical appointments, and 10 a.m. to 4 p.m. on Saturdays to attend personal errands.