Thursday August 21, 2014

Appeals court upholds coke trafficking sentences


The Saskatchewan Court of Appeals has upheld a lower court’s sentencing decision in what the Crown has described as “biggest drug trafficking case in Saskatchewan history and one of the most significant in national history.”

In 2013, the Court of Queen’s Bench (QB) handed down prison sentences of 18 years for Brock Ernest Palfrey, 12 years for William Bruce Larsen and 11 years for Troy Ernest Swanson. The three British Columbia men pleaded guilty to various charges related to a cross-border trafficking operation that involved the importation of between 1,325 and 1,370 kilograms of cocaine from the United States to Canada between 2009 and 2011.

Palfrey was the coordinator of the enterprise, which involved drivers in the U.S. transporting the drugs from Washington and Oregon to remote locations on the Montana-Saskatchewan border where it was transferred to Canadian drivers who ferried it back to B.C. The Crown described the operation as sophisticated citing the smugglers’ use of encrypted cell phones and out-of-country servers to avoid detection by authorities.

Palfrey and Swanson were originally arrested in March 2010 when police pulled the latter over near Swift Current and found 151 kilograms of cocaine in his trunk.

Swanson got out of the business, but Palfrey, who had managed to make bail, was back at it within 10 months, allegedly, according to court documents, because some “dangerous people” wanted their money back from the drugs lost when he and Swanson were arrested. Palfrey arranged nine more shipments during 2011, recruiting Larsen, a family friend, to take Swanson’s place.

All told, the new enterprise imported 835 kilograms of cocaine and exported 790,000 pills of ecstasy to the United States. Larsen was involved in seven of the loads, personally transporting six and acting as liaison with another driver on the seventh. Unknown to Palfrey and Larsen, however, one of the American drivers had been arrested and turned informant. The last three of the six loads Larsen transported, in fact, were mostly fake cocaine substituted by American authorities.

The informant also opened a portal for police into the communications system of the organization, recordings from which would later be used in court.

Both Palfrey and Larsen were denied bail, Palfrey on the basis he had breached his original bail conditions and Larsen based on recorded conversations that suggested he might be a flight risk.

The three men were originally sentenced separately.

In Palfrey, the Crown petitioned for 25 years with no eligibility of parole for 10 years. The defence felt 15 years was appropriate. The Court concluded the correct sentence was 18 years with no restriction on parole eligibility.

For Larsen, the Crown asked for 18 years, but the judge sided with the accused imposing the 12 years sought by the defence.

In Swanson, the Crown sought 15 years while the defence asked for six to eight years. The sentencing judge felt the defence submission was too low, but that Swanson should have a lighter sentence than Larsen because Swanson’s role “was that of a simple courier” and “less central than that of Mr. Larsen.” The justice settled on 11 years.

In all three cases, the judge focused on the sentencing principles of denunciation and deterrence, but took into account none of the three men had prior criminal records.

The Crown’s appeal was heard by Saskatchewan Court of Appeals (COA) Chief Justice Richards, Mr. Justice Ottenbreit and Mr. Justice Caldwell in June 2013.

In the Court’s decision dismissing all three appeals released January 15, the chief justice cited a 1996 Supreme Court of Canada (SCC) ruling limiting an appeal court’s ability to overturn a lower court’s decision.

“Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit,” the SCC ruled.

Palfrey’s case was by far the most complex owing to the fact that, in addition to guilty pleas on two counts of trafficking in cocaine, one count of trafficking in ecstasy, two breaches of recognizance, and one count of conspiracy to traffic, he had also pleaded guilty to being a member of a criminal organization and instructing another person to commit the crimes of importing cocaine, exporting ecstasy and possessing those drugs for the purpose of trafficking. The chief justice devoted nearly 26 pages of the 40-page document to Palfrey.

In order to get to a global sentence of 18 years, the sentencing judge had adjusted the sentences for trafficking, breach and conspiracy downward because according to the Criminal Code, criminal organization sentences must be served consecutive to any other sentences imposed.

The Crown argued the sentencing judge had erred by undervaluing the gravity of the offences, reducing the other sentences to accommodate the mandatory consecutive criminal organization sentence, reducing the other sentences on the basis of the totality principle (that where consecutive sentences are imposed the combined sentence should not be unduly long or harsh) and failing to delay parole eligibility.

The COA disagreed with the Crown that the sentencing judge erred in coming to a global sentence of 18 years and that the sentence was “demonstrably unfit.”  

The chief justice did, however, see fit to vary the individual sentences giving Palfrey 16 years on the first cocaine trafficking charge and two years consecutive for the criminal organization charge. Sentences of 16 years on the second cocaine trafficking charge, six years on the ecstasy trafficking charge, one year on the first breach, six months on the second breach and three years on the conspiracy charge are all to be served concurrently with the first cocaine trafficking count.

By comparison, the dismissals of the appeals regarding Larsen and Swanson were relatively straightforward.

Richards wrote that a longer sentence for Larsen might have been available to the sentencing judge if he had come to a different conclusion regarding the defendant’s centrality to the operation or by taking a different approach to the ecstasy exporting offence. However, the chief justice stated that was not the question before the court and concluded the Crown had failed to demonstrate 12 years was an unfit sentence.

Central to the Crown’s appeal regarding Swanson was the contention that Larsen’s sentence was too light, therefore the judge had erred in setting Swanson’s sentence relative to Larsen’s.

The chief justice was not persuaded by this argument and noted that Swanson “is a good candidate for rehabilitation and is not expected to re-offend.”

In all three cases, the COA agreed with the QB judge that the sentences were consistent with case law.

While dismissing the appeals, the COA did give the Crown leave to appeal to the Supreme Court. The Crown has not indicated whether it will do so.



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