



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



R.
                v. Briltz,









2004 BCCA
            32




Date: 20040119





Docket: CA031288

Between:

Regina

Respondent



And

David Tyson
      Briltz

Appellant














Before:



The Honourable
            Mr. Justice Hall





The Honourable
            Mr. Justice Low





The Honourable
            Mr. Justice Lowry




Oral Reasons for Judgment








Appellant appeared in person via video
            conference





E. Froess



Counsel for the (Crown) Respondent





Place and
            Date:



Vancouver, British Columbia





January 19, 2004







[1]

HALL,
          J.A.
: This is a case in which Mr. Briltz, a 24
          year old man, is appealing from a sentence of 18 months imposed last
          September on charges of trafficking in cocaine at or near Tumbler Ridge
          between 21 March and 23 March 2003.  There was also a sentence for
          a breach of an undertaking that occurred on 29 June 2003 at Tumbler
          Ridge
          wherein Mr. Briltz had breached the undertaking that he was out on
        by being involved in the consumption of alcohol.

[2]

The
        circumstances of the offence are that an undercover officer met with
      Mr. Briltz in March and purchased a small amount of cocaine.  He was told that
        he could get a small amount of cocaine for $60 a half, as it was described.  He
        got the telephone number and name of Mr. Briltz, who was then working as
        a doorman at a bar in Tumbler Ridge.  He discussed with him how much a
        ball would be.  That refers to an eight ball, which is a quantity of cocaine
        greater than the portion he was purchasing.  He was advised that that would
        be about $420.  He met the appellant a couple of days later and it was
        agreed that he could purchase an additional two half grams for $120 and
      an eight ball for $420, which transaction was concluded.

[3]

The
        undercover operator then asked Mr. Briltz if he could get a one-quarter
        ounce.  Mr. Briltz said that that would be possible but the price would
        be around $700.  The officer did not proceed any further.  Later on, a
        decision was made to arrest Mr. Briltz and he was arrested in early June
        and returned to the Tumbler Ridge detachment where he was released on an
        undertaking requiring him to abstain from the consumption of alcohol.  On
        29 June he apparently breached that by being found in a vehicle with an
        odour of liquor on his breath.  He was given a breathalyser test and
      it was found that he had a reading that was significant.

[4]

Mr.
        Briltz has a prior record in the past including: mischief; failing to
      comply with an undertaking in Hinton, Alberta and in Edmonton, theft.  In Hay
        River in 2000 he was convicted of possession of a scheduled substance for
        the purpose of trafficking.  On that he was given a 10 month sentence.  I
      am told that substance was marihuana.

[5]

It
        appears from the transcript at the sentence proceedings that Mr. Briltz
        has had a problem with the consumption of marihuana.  His lawyer at the
        time said that Mr. Briltz had a marihuana addiction problem and the following
      passage from the judgment, I think, is significant.  His lawyer is speaking:

MR. JOHNSTON: He knew the Crown was asking for eighteen
        months here today.  We are in agreement with that.  Id ask the Court
        waive the victim crime surcharge fee, as he will be incarcerated and
        have no
      way to pay.

[6]

Mr.
        Briltz then was asked if he had anything to say and he said to the judge
        that he thought that this might have been a way to make money, obviously
        it was not.  He knew it was wrong and he was there to face the consequences
        of his actions.  Thereafter, Judge Cleaveley sentenced Mr. Briltz to
        the sentence of 18 months imprisonment and a probation order for two
      years.

[7]

As
        I say, this was done pursuant to an agreed sentence between the Crown
      and the defence.  This morning, in his submission to us, Mr. Briltz suggested
        that he had been told by others in the prison system that the sentence
      he was given was excessive and that he felt that he ought to appeal it.

[8]

We
        have been furnished with a number of cases this morning by Crown counsel
        who gathered together some of the previous authorities which demonstrate
        to us that this sentence is very much within the range of other sentences
        that have been imposed for this sort of activity.  I refer, amongst others,
        to the case of
R. v. Ahmed (S.)
(2001), 159 B.C.A.C. 136
        in which the Court found that a conditional sentence of 18 months should
        be set aside and a custodial sentence of 18 months should be imposed
        for trafficking in cocaine in a case that bears some similarity to the
        case
      at bar.

[9]

Also,
        there was a case in 2001 before another panel of the Court wherein a
      sentence of 18 months was imposed and two years probation, as well.  That
      is the case of
R. v. Cook (K.) et al
(2001), 154 B.C.A.C.
      252, a judgment of the Chief Justice who observed that these sentences
      are imposed
        to protect communities against these kinds of difficulties.  I think we
        should note that Tumbler Ridge is a small and relatively remote community.  Obviously,
        if drug trafficking is occurring there, that would be of concern to this
      community.

[10]

Another
        case that was cited to us in which is a somewhat higher sentence was imposed
        was a case from several years ago,
R. v. Vu (B.)
(1996),
        81 B.C.A.C. 267.  There a sentence of three years imprisonment was imposed.  The
        court considered the pre-sentence custody that the individual had served
        and he was sentenced to two years in addition to that.  The sentence
      worked out to between two years and eight months and three years.

[11]

The
        appellant has said to us that he has some hope that he may be able to
      get into the army.  If that is possible certainly that would be a desirable
        thing for him to do to introduce some regularity into his life.  He is
        a young man and it is to be hoped that he will be able to do better in
        avoiding difficulties with the law than he recently has.  I must say though
        that there is nothing in principle that is wrong with this sentence.  It
        is very much within the parameters of the cases that have been previously
        dealt with in this Court as well as other courts in British Columbia in
        the recent past.  I simply say to the appellant, Mr. Briltz, that it seems
        to me that his counsel was quite correct in his assessment of the case.  This
        sentence was one that could properly be agreed to by counsel for the
        respondent and the Crown to possibly avoid what might have been a higher
        sentence
        in light of the circumstances Mr. Briltz did possess a previous conviction
      for a similar offence not long before this incident.

[12]

The
        appellant has told us that he believes he will have some parole eligibility
        coming up in the Spring.  It is to be hoped that the appellant will be
        able to get on with his life and to avoid the sort of difficulty he has
        had here.  I should say for Mr. Briltzs benefit that if he should get
        back into further difficulty, the unfortunate reality is that he might
        then face a very heavy sentence indeed.  The sentence that is before the
        Court today is one in my view that was appropriate having regard to the
        circumstances of this offence and this offender.  Therefore the Court
      does not propose to allow the appeal.

[13]

I
      would grant leave to appeal but I would dismiss this appeal from sentence.

[14]

LOW,
        J.A.
: I agree.

[15]

LOWRY,
        J.A.
: I agree.

[16]

HALL,
        J.A.
: The sentence appeal is dismissed.

The Honourable
      Mr. Justice Hall


