



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


R. 
          v. Newson,







2008 
          BCCA 28



Date: 20080123

Docket: CA034735

Between:

Regina

Respondent

And

John 
    Wayne Newson

Appellant




Before:


The 
          Honourable Mr. Justice Hall




The 
          Honourable Madam Justice Saunders




The 
          Honourable Mr. Justice Tysoe








H. 
          Patey


Counsel for the Appellant




W.P. 
          Riley


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




December 6, 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 23, 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Saunders




Concurred 
          in by:




The 
          Honourable Mr. Justice Hall

The 
          Honourable Mr. Justice Tysoe



Reasons 
    for Judgment of the Honourable Madam Justice Saunders:

[1]

Mr. Newson seeks leave to appeal and, if leave is granted, appeals 
    from a sentence of six years incarceration for conspiracy to traffic in cocaine.  
    He was convicted on a guilty plea after a preliminary hearing and sentenced 
    on November 16, 2006 by Associate Chief Justice Dohm.  The reasons for sentence 
    are not indexed.

[2]

Mr. Newson has also applied to adduce fresh evidence in the form of 
    an affidavit from his step-father concerning the circumstances of Mr. Newsons 
    daughter since Mr. Newson was sentenced.  In the affidavit Mr. Newsons step-father 
    sets out his concerns that the quality of care the child receives from her 
    mother is deficient and expresses his anxiety as to the childs well-being.

[3]

Mr. Newson was one of four persons before the Associate Chief Justice 
    on the occasion of his sentencing.  All four were involved in what is commonly 
    referred to as a dial-a-dope operation.  The Associate Chief Justice found 
    that the criminal activity was organized, saying it was to a large degree, 
    sophisticated.  He found there was some planning and deliberation on the 
    part of the participants to the point where business cards were ordered and 
    no doubt circulated, on which are phone numbers to lead persons who are desirous 
    of purchasing cocaine to these persons . . . or persons acting on 
    their behalf.  Associate Chief Justice Dohm found that the operation occurred 
    in five areas of the Lower Mainland: Abbotsford, Langley, Cloverdale, Surrey 
    and White Rock.

[4]

One of the accused, Mr. Montgomery, took the position that he led the 
    organization.  He received a sentence of eight years incarceration.  In addition 
    to Mr. Montgomery and Mr. Newson, there were two other accused, Mr. Zopf and 
    Ms. Mikelsons.  At the sentencing hearing Crown counsel suggested that Mr. 
    Zopf was in a different position than Mr. Newson but that the two men should 
    receive the same sentence, and agreed that Ms. Mikelson was at a third level 
    for sentencing purposes.  Mr. Newson disputed his equivalency with Mr. Zopf.  
    Associate Chief Justice Dohm found that Mr. Zopf and Mr. Newson had different 
    functions, but said from my analysis, they are in the same category.  He 
    sentenced Mr. Zopf and Mr. Newson to the same sentence, six years incarceration, 
    and Ms. Mikelsons to a sentence of four years incarceration.

[5]

As to Mr. Newson he held:

[7]        
    Overall, there is no doubt on the evidence that Mr. Newson had the ability 
    to bring about a great many sales and was the knowledgeable person, generally, 
    about the necessity for the use of the telephone and the various lines that 
    were required in order to carry on this business.  The term dial-a-dope 
    operation really says it all and I need not really go further other than to 
    say that.  [. . .]  Along with the business cards that I referred to, there 
    were ledgers kept by Ms. Mikelsons, for one, Montgomery by the other and so 
    also with Mr. Zopf.  No ledger was found associated with Mr. Newson.

[. 
    . . ]

[9]        
    One other comment I would like to make is that until the final curtain dropped 
    on this operation, one or more of the accused were arrested.  My recollection 
    is, that it was Ms. Mikelsons and Mr. Newson and the indication is, that after 
    those arrests, the accused were released.  Whether they were released on some 
    undertaking or bail or whatever, it matters not.  The fact is that whatever 
    their reason for the release it seemed not to deter the accused from continuing 
    in their former ways.  That is to say, they went right back at the very jobs 
    that they were doing prior to the temporary interruption.  That, in my view, 
    is a factor that the court ought to consider in dealing with the matter of 
    sentence.

[6]

Associate Chief Justice Dohm found that the operation lasted for at 
    least six to eight months.  He held that this is not a loose-knit operation.  
    This is not an unsophisticated one.  This is not one that was hatched overnight.  
    It required a good deal of planning and deliberation for its continued success 
    and it is in that light that I intend to sentence the four accused.

[7]

In imposing sentence the Associate Chief Justice recognized that the 
    amount of cocaine involved at the time of the arrest was less than in other 
    cases, and that Mr. Newson did not have a criminal record that affected the 
    sentencing.  He referred to the letters filed in support of each accused and 
    then he imposed sentence on each of the four offenders before him.

[8]

Crown counsel says, in amplification of the reasons of the Associate 
    Chief Justice, that it is undisputed that the enterprise had a wholesale distribution 
    component in addition to the retail dial-a-dope aspect, and that Mr. Newson 
    was a central figure in both parts of the business.  It is apparent from the 
    appeal record that Mr. Newson worked on three different routes during the 
    course of the investigation, and that he was central to the dispersal of a 
    large volume of drugs.  When he was arrested he was found in possession of 
    45 flaps of cocaine, methamphetamine and $2,000 in cash.  His role and his 
    knowledge of the workings of the enterprise are illustrated in a conversation 
    with an undercover police officer in which he said the operation had 20 employees 
    and that they made $5,000 a day in Langley alone as well as other monies on 
    other routes, and in another conversation with an undercover police officer 
    in which he said that when he was working on the Langley route, the group 
    was making $110,000 per month.  After Mr. Newsons arrest, the police searched 
    his residence and found 400 printed business cards with different phone numbers 
    on them, some with the numbers 24/7.

[9]

The evidence of the wholesale operation came largely from Mr. Newsons 
    dealings with an undercover police officer, in the course of which, over a 
    seven-month period, he negotiated 12 separate sales of cocaine in quantities 
    beyond retail sale.

[10]

At the time of his sentencing, Mr. Newson was 43 years old.  He had 
    a dated prior criminal record with convictions for drunk driving and possession 
    of stolen property.

[11]

Mr. Newson has one child, a daughter seven years old at the time of 
    sentencing.  At the sentencing hearing Mr. Newsons counsel advised the court 
    that Mr. Newson was involved in raising the child, taking her to school and 
    recreational activities, and acting as a primary caregiver at least some of 
    the time.  That submission was repeated to this Court.  The child now resides 
    with her mother who has a substance addiction.  The fresh evidence sought 
    to be adduced concerns the circumstances of this child and Mr. Newsons parents 
    concern on her behalf.

[12]

Mr. Newsons counsel advised the court at the sentencing hearing, and 
    again in the hearing before this Court, that Mr. Newson first became involved 
    in the drug world after he became addicted to a drug prescribed for pain for 
    injuries arising from an accident and, unable to sustain employment, started 
    to work as a driver in the dial-a-dope business on a part-time basis to 
    augment his disability income.  Mr. Newson, it is said, himself became addicted 
    to cocaine, and became involved on a full time basis working in this criminal 
    enterprise.

[13]

Mr. Patey, on behalf of Mr. Newson, contends that Associate Chief Justice 
    Dohm erred in his characterization of the position of Mr. Newson in the organization, 
    and in failing to give sufficient reasons explaining his conclusion that Mr. 
    Newson should be sentenced as if he held a comparable position to Mr. Zopf.  
    He says that Mr. Newson was labour rather than management.  He refers to 
    the parity principle, says that the sentences imposed in respect to the scheme 
    should reflect differences in rank, and submits that Mr. Newson therefore 
    should receive a lesser sentence than Mr. Zopf.  Further, he contends that 
    Mr. Newsons personal circumstances were not accorded sufficient consideration.  
    He notes that Mr. Newson was addicted to cocaine, refers to his parental responsibility 
    and argues that Mr. Newson did not become wealthy from the scheme but rather 
    worked in this drug enterprise to earn income to augment his disability benefits.

[14]

In reviewing the reasons for sentence, it is important to bear in mind 
    that sentence was imposed on the same day as submissions, that they dealt 
    with a conspiracy involving four persons, and that the essential facts were 
    not in dispute.  Of course, it is the reasons for sentence that we must scrutinize 
    to determine if there is error demonstrated, but they must be read in the 
    context of the entire sentencing proceedings.  Mr. Newson contends that the 
    Associate Chief Justice erred in finding that he was at an equivalent level 
    of the organization as Mr. Zopf.  This is a dispute as to an inference drawn 
    by the sentencing judge.  This Court, of course, may not interfere lightly 
    with the inference of a trial judge as the drawing of inferences is a matter 
    particularly within the purview of the trier of fact.

[15]

In this case, Associate Chief Justice Dohm demonstrated his awareness 
    of the difference in the roles played by the two men.  He acknowledged that 
    the Crown considered that Mr. Zopf and Mr. Newson were in different positions, 
    to some extent, but concluded that they should be sentenced at the same level.  
    Contrary to submissions, however, this is not a finding that Mr. Newson was 
    at a second in command level.  Rather it is a conclusion that the degree of 
    involvement and culpability in the overall enterprise is roughly equivalent.  
    On a review of the record, this is a conclusion that was open to the sentencing 
    judge to make.  A significant portion of Mr. Newsons submissions on sentencing 
    were directed to that issue and Associate Chief Justice Dohm simply rejected 
    Mr. Newsons minimization of his importance to the scheme.  I cannot say he 
    erred in his conclusion.

[16]

Nor, in my view, is the brevity of the reasons for sentence, in relation 
    to Mr. Newson, a basis on which to interfere.  They are sufficient to permit 
    appellate review and to inform Mr. Newson why he attracted the sentence imposed.  
    The record, including the submissions made by Crown counsel and the four defence 
    counsel, amply demonstrates the significance of the enterprise in which Mr. 
    Newson was engaged, and the importance of his participation.  It is undisputed 
    that he accounted for a disproportionately large share of the drug sales, 
    and he was involved in sales in the nature of warehouse sales.  I do not consider 
    the absence of extended reasons, in this case, an error in principle entitling 
    this Court to substitute a sentence for the one imposed.

[17]

The real issue is whether the sentence is demonstrably unfit.  It is 
    to this issue that the submissions as to Mr. Newsons character, lack of relevant 
    prior criminal record, and potential for rehabilitation are relevant.

[18]

In making this submission Mr. Newson sought to rely upon the fresh 
    evidence.  Notwithstanding the earnest submissions made on his behalf, I do 
    not consider that the new evidence meets the test for admissibility.  Although 
    addressed to the plight of Mr. Newsons daughter since he was sentenced, the 
    fresh evidence focuses upon the mothers substance addiction and weaknesses 
    as a custodial parent, both matters known to the sentencing judge.  To this 
    extent the evidence is not really new, but rather more of the same concern 
    that was addressed at the sentencing hearing.  Further, the fresh evidence 
    would not make a difference in the sentence imposed.  It is often the case 
    that a parents criminal offending creates hardship for members of the family.  
    That children are often deprived of parental guidance and care when a parent 
    is incarcerated is inevitable in cases of serious offending by a parent.  
    Here, even upon his counsels submissions, Mr. Newson faces a significant 
    period of incarceration.  Separation from his daughter is one of the hard 
    realities of the situation Mr. Newson has created, and not one that may be 
    cured in the circumstances before us.  I would note, further, that it is not 
    inevitable that Mr. Newsons daughter must reside in an inappropriate situation, 
    if that be the case, as other avenues for assistance are available.  For these 
    reasons, I would not allow the application to adduce fresh evidence.

[19]

I turn then to the fitness of sentence on the record before us.  Here 
    it is said that Associate Chief Justice Dohm did not have due regard to Mr. 
    Newsons addiction, contrition, and potential for rehabilitation, with the 
    result that the sentence imposed is demonstrably unfit.

[20]

Associate Chief Justice Dohm took a stern view of Mr. Newsons role 
    in the enterprise.  I agree with that view, and with his conclusion that the 
    most significant principles of sentencing in the circumstances are denunciation 
    and general deterrence.  The offence was part of a sophisticated, extensive, 
    and long-lasting enterprise, involved the widespread trafficking of highly 
    addictive drugs, and demonstrated a high degree of criminal organization.  
    Mr. Newson was a key person in that enterprise at the street level and in 
    selling greater quantities in what may be termed wholesale sales.

[21]

Nor do I consider the absence of evident wealth arising from the enterprise 
    significant.  As I understand Mr. Newsons submission, it is that he became 
    involved in the scheme because he had a debt incurred to support an addiction 
    to cocaine, and because his disability pension was not sufficient to support 
    his family, not to become wealthy. His counsel refers us to
R. v. Iverson
,

2007 BCCA 3 in which this Court reduced a sentence for two counts 
    of possession of methamphetamine and ecstasy for the purpose of trafficking 
    and two counts of production of the drugs, from six years to four years.  
    In
Iverson
the Court said The appellants addiction to heroin, 
    while not his primary motivation, obviously contributed to his financial and 
    social disintegration and distinguishes this case from those involving non-addicts 
    who are solely motivated by greed.

[22]

But this case is not
Iverson.
This case concerns a 
    relatively long lasting and sophisticated operation in which Mr. Newson was 
    a central figure in the distribution of drugs, and his sales were prolific.  
    These facts and the convictions of all four offenders, establish that Mr. 
    Newson was part of a criminal organization.  In my view, any role that Mr. 
    Newsons addiction played in his offending is overtaken by the seriousness 
    of the offence, his role in it, and the collective feature of the offence.  
    I conclude that the fact of addiction does not justify a reduction of sentence 
    by this Court and does not make this sentence unfit.

[23]

While Mr. Newson was not at the top of the organization as was Mr. 
    Montgomery, and therefore not to the level of the offender in
R. v. 
    Pham
, 2002 BCCA 560, 176 B.C.A.C. 318 who attracted an eight-year 
    sentence in addition to pre-trial custody, in my opinion the sentence of six 
    years is not a marked departure from sentences customarily imposed for such 
    offences in like circumstances (
R. v. M. (C.A.)
, [1996] 1 S.C.R. 
    500, 105 C.C.C. (3d) 327) and thus not demonstrably unfit.

[24]

For these reasons I would give leave to appeal sentence, and dismiss 
    the appeal.  I would, as well, dismiss the application to adduce new evidence.

The 
    Honourable Madam Justice Saunders

I AGREE:

The 
    Honourable Mr. Justice Hall

I AGREE:

The 
    Honourable Mr. Justice Tysoe


