A Victoria drug dealer was granted an “unusual appeal” of his sentence for trafficking 0.4 grams of fentanyl from two years to 90 days according to a judgment posted online earlier this week.
Dezmond Anthony White was found to be in possession of the fentanyl for personal use, not for trafficking by Justice Patrice Abrioux on Dec. 4 after being sentenced on Feb. 25.
At trial, Crown conceded that the fentanyl possessed by White was for personal use, to which both parties submit the trial judge disregarded without giving notice, resulting in unfairness to White.
“While I accept that it was open to the judge to reject the Crown’s concession and reach his own conclusions concerning whether the fentanyl was possessed for the purpose of trafficking regardless of the position taken by the Crown, in my view, if he was not prepared to accept the Crown’s concession, he was obliged to advise counsel of this and give the defence an opportunity to address the point,” wrote Abrioux in his reasons for granting the appeal.
On Oct. 25, 2016, a vehicle was stopped by police in which White was a passenger in the back seat, as he exited the vehicle, police saw something shiny in his pocket, thinking it was a gun they called for back up. All three men in the vehicle were arrested.
The 0.4 grams of fentanyl and $2,510 in cash were found on White. In addition, more drugs were found in a backpack in the back seat, a sunglasses case containing drugs was found near the front seat and a semi-automatic handgun was located in the back seat. Police searched a nearby hotel room and found a small quantity of drugs, a scale and a large sum of cash.
Of the three men, White was the only one who went to trial where one of his co-accused testified the drugs in the backpack and sunglasses case were his. The trial judge considered the cash to be telling and stated the quantity of drugs is not always indicative of trafficking.
“A dealer can be supply heavy and cash low at the beginning of a day, and supply low and cash heavy at the end of a day of dealing,” stated the trial judge.
White was sentenced to five years in jail, two years for trafficking fentanyl and three years for possession of a restricted firearm concurrent to 18 months for occupying a vehicle knowing there was a firearm.
Abrioux determined a sentence of 90 days was fit for the downgraded charge of simple possession of fentanyl, as opposed to the trafficking charge. White was given 321 days credit for time spent in custody awaiting trial leaving him with almost two and a half years left on his sentence.
“Trial fairness requires that a full and fair opportunity be given to both parties to address or make submissions on a point of fact or law that may be troubling the court,” wrote Abrioux. “Had the trial judge indicated his intention to reject the Crown’s concession, or that he was concerned by it, the appellant could have argued that the fentanyl was not possessed by him for the purpose of trafficking.”