



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Barham, 2014 ONCA 797

DATE: 20141113

DOCKET: C59273

Weiler, Gillese and van Rensburg JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wayne Barham

Appellant

Richard A. Fedorowicz, for the appellant

Chris de Sa, for the respondent

Heard: November 7, 2014

On appeal from the sentence imposed on May 6, 2014, by
    Justice George Beatty of the Ontario Court of Justice.

ENDORSEMENT

[1]

Wayne Barham (the appellant) was arrested and charged on January 17,
    2014, with the offence of possession of hydromorphone for the purpose of
    trafficking.  He was also charged with causing a disturbance and breach of
    probation. At the time of arrest, he also had outstanding charges for
    possession of cocaine (from November 27, 2013) and possession of stolen
    property (from December 5, 2013), as well as an outstanding charge for breach
    of probation.

[2]

The appellant pleaded guilty to the six discrete offences and received a
    global custodial sentence of 14 months and 28 days, less 165 days of pretrial
    custody (110 days credited at 1.5 to 1).

[3]

The sentence breakdown for the various convictions was:

·

Possession of hydromorphone for the purpose of trafficking: 12
    months less 5.5 months of pretrial custody

·

Failure to comply with probation: 14 days concurrent

·

Cause disturbance: 14 days concurrent

·

Possession of cocaine: 2 months consecutive

·

Possession of property under $5000: 14 days consecutive

·

Failure to comply with probation: 14 days consecutive

[4]

The appellant submits that the sentencing judge erred by:

1.

failing to give
    weight to mitigating factors and overemphasizing other factors; and

2.

imposing a harsh
    and excessive sentence for the offence of possession of hydromorphone for the
    purpose of trafficking.

[5]

We do not agree that the sentencing judge made either of the alleged
    errors.

[6]

On the first ground of appeal, the appellant points to mitigating
    factors such as the ten-year gap in his criminal record, his mental health problems
    and his cocaine addiction.

[7]

The appellant is a habitual offender, with a criminal record that begins
    in 1989 and includes convictions for violent offences and drug offences. 
    Although there is a ten-year gap in the appellants criminal record between
    1995 and 2006, his record since 2006 has been consistent with numerous
    convictions in each and every year from then until the time of sentencing. 
    Consequently, the sentencing judge made no error in giving effect to the
    appellants significant record.

[8]

While the appellant points to his schizophrenia and cocaine addiction as
    mitigating factors, nothing in the record indicates a link between those
    conditions and the commission of the offences in question.  In order for mental
    health issues and addiction to be considered as mitigating factors, there must
    be some connection between those matters and the criminal conduct at issue.

[9]

As for the second ground of appeal, contrary to the appellants
    contention, the 12-month sentence for the hydromorphone offence is not harsh
    and excessive.  Hydromorphone is a synthetic heroin substitute and is as
    serious a drug as heroin.  Trafficking in heroin, even small amounts, will
    attract penitentiary time:
R. v. Turner
, [2003] O.J. No. 685 (C.A.),
    at paras. 2-3.

[10]

Accordingly,
    the appeal is dismissed.

K.M. Weiler J.A.

E.E. Gillese J.A.

K. van Rensburg J.A.


