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Digest: R. v. McCormick

[2017] B.C.J. No. 171

British Columbia Provincial Court
B. Craig Prov. Ct. J.

January 30, 2017.
(113 paras.)

   Criminal law — Sentencing — Non-Criminal Code and regulatory offences — Controlled drugs and substances — Trafficking — Other substances — Possession for the purpose of trafficking — Other substances — Particular sanctions — Imprisonment — Concurrent sentences — Consecutive sentences — Sentencing considerations — Aggravating factors — Mitigating factors — Deterrence — Denunciation — Protection of the public — Submissions — Submissions by Crown — Totality principle — Previous record — Lengthy — Related — Guilty plea — Offence committed while accused on interim judicial release or probation — Sentencing precedents or starting point — Seriousness of offence — Offender sentenced to 14 years' imprisonment, less 221 days' served, for trafficking fentanyl and possession of several types of drugs for purpose of trafficking — Offender sold 3,000 fentanyl pills to undercover police — Search resulted in seizure of fentanyl, cocaine, methamphetamine, MDMA, heroin, marijuana, pills, cash, and firearms — Street value of drugs totaled $2 million — Three months later, offender was arrested on bail with additional large quantities of drugs — Crown sought 18-year sentence — Defence counsel sought eight to nine year sentence — Real and substantial risk posed by fentanyl required significant deterrent and denunciatory sentence.

   Sentencing of the offender, McCormick, for offences related to the possession and trafficking of fentanyl and other drugs. In February 2016, the offender was arrested for trafficking 3,000 fentanyl pills to undercover police in two separate transactions. A subsequent search of the offender's vehicle, residence and storage locker resulted in seizure of an additional 27,000 fentanyl pills, four kilograms of cocaine, one kilogram of methamphetamine, 375 grams of MDMA, five grams of heroin, 22.5 kilograms of marijuana, three kilograms of hashish, approximately 600,000 other pills, $172,000 in cash, two firearms, and various agents used to filter and cut drugs. The drugs had a wholesale value of $625,000 and a street value of $2 million. In May 2016, while on bail, the offender was arrested and police seized 1,000 fentanyl pills, two kilograms of cocaine, 18 kilograms of marijuana, 4,285 alprazolam pills, and $4,736 in cash, leading to an additional charge of possession for the purpose of trafficking. The offender, age 53, pled guilty. He had a longstanding related criminal record dating back to 2000. The Crown sought an 18-year sentence, reflecting the recent epidemic of fentanyl overdose deaths. Defence counsel sought a sentence of eight to nine years.

   HELD: McCormick was sentenced to 14 years' imprisonment, less 221 days' credit for time served. Aggravating factors included the dangerous nature of the drugs involved, particularly fentanyl, due to its potency, the vulnerability of users to overdose, and its use in place of other street drugs without disclosure of its presence by sellers. Additional aggravating factors included the amount and variety of drugs involved, the offender's role as a high-level trafficker supplying other traffickers, the scope of his offending, the commission of further offences while on bail, his serious record for similar offences involving wholesale amounts of drugs, and the involvement of firearms. The offender's guilty plea was the sole mitigating factor. The paramount sentencing principles were denunciation, deterrence and protection of the public. There was little evidence of any prospect for the offender's rehabilitation. The lure of substantial profit for lower risk, with the awareness of the very real and substantial risk to life from trafficking in fentanyl required counteraction with the threat of a significant jail sentence on conviction. A 16-year global sentence was appropriate in the circumstances, subject to a two-year reduction based on application of the totality principle. Sentence: five years' imprisonment for trafficking fentanyl; eight years' concurrent for possession for the purpose of trafficking; six years' consecutive for possession for the purpose of trafficking.