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Abstract: Transcript of the Reasons for Sentence
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R. v. Gellenbeck, 2007 NWTSC 72 S-1-CR2006000083 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - vs. - SANDRA JOLENE GELLENBECK _________________________________________________________ Transcript of the Reasons for Sentence by The Honourable Justice J.E. Richard, at Yellowknife in the Northwest Territories, on September 6th A.D., 2007. _________________________________________________________ APPEARANCES: Ms. S. Tkatch: Counsel for the Crown Mr. A. Pringle, Q.C.: Counsel for the Accused ---------------------------------------- Charge under s. 5(2) Criminal Code of Canada Official Court Reporters 1 THE COURT: As most, if not all, of the 2 people in this courtroom know, the courts of this 3 jurisdiction have had to deal with many cases 4 involving the illegal cocaine trade in 5 Yellowknife over the past number of years. In 6 virtually every case, there is a reference to the 7 devastation that has been caused to the social 8 fabric of this community by cocaine, and how it 9 has destroyed people's lives. Today's sentencing 10 hearing is further confirmation of that 11 statement. By her own admission, Sandra 12 Gellenbeck's life has been destroyed by her 13 involvement with cocaine. 14 Ms. Gellenbeck's case is the latest in a 15 series of cases which have come before the courts 16 as a result of a major RCMP investigation a few 17 years ago into the illegal cocaine trade here in 18 Yellowknife. This major police investigation was 19 no doubt undertaken, in part, because of the many 20 social problems that existed in our city and that 21 were directly related to the trafficking and use 22 of cocaine and crack cocaine. 23 Large segments of the population of our 24 community have been affected by the snowball 25 effect of the cocaine trade, whether they are 26 home owners or business owners who have been 27 victims of B&Es or thefts committed by people Official Court Reporters 1 1 committing crimes to finance their cocaine 2 addictions, whether they are victims of assaults, 3 domestic violence, homicides - all related to 4 cocaine addiction or the cocaine trade; or 5 relatives or friends of those whose lives have 6 been destroyed because of their addiction to 7 cocaine or their involvement in the cocaine trade 8 in this city in the past number of years. 9 The major police investigation that I 10 referred to was entitled Project Gunship, and it 11 culminated in October 2005 with the arrest of 12 several people, including this offender Sandra 13 Gellenbeck, and in many charges under the 14 Controlled Drugs and Substances Act and the 15 Criminal Code. Many of these charges have 16 already been disposed of by the courts, and there 17 are some charges which are still pending before 18 the courts. 19 One of the primary targets in this police 20 investigation was a Mr. Wong. The investigation 21 indicated that Mr. Wong was a major player in the 22 illegal cocaine trade in Yellowknife. The police 23 obtained judicial authorizations to intercept 24 Mr. Wong's private communications, commonly 25 referred to as wiretaps. The police intercepted 26 Mr. Wong's communications at his home here in 27 Yellowknife and on his phones and on his cell Official Court Reporters 2 1 phones. In this manner, the police were able to 2 gather evidence of the interaction of this 3 offender Sandra Gellenbeck with Mr. Wong in the 4 trafficking of cocaine in our community. 5 Evidence before the Court on this sentencing 6 hearing indicates that in September 2005, 7 Ms. Gellenbeck attended at Mr. Wong's residence 8 and, there, had discussions with Mr. Wong about 9 the supply of cocaine by Mr. Wong to 10 Ms. Gellenbeck. 11 In particular, the police, by their 12 surveillance, were aware that on September 27th, 13 2005, Ms. Gellenbeck attended at Mr. Wong's 14 residence and gave him a certified cheque on her 15 business account in the amount of $20,000. And 16 in return, Mr. Wong supplied her with ten ounces 17 of cocaine. The police followed her when she 18 left Mr. Wong's residence, arrested her, and 19 found on her person the ten ounces of cocaine 20 wrapped in ten separate baggies of one ounce 21 each. Today, Ms. Gellenbeck pleads guilty to 22 being in possession of that cocaine on September 23 27th, 2005 for the purpose of trafficking. This 24 is a large quantity of cocaine as evidenced by 25 the price that she paid for it. 26 The material before the Court indicates that 27 in September 2005, Ms. Gellenbeck was seriously Official Court Reporters 3 1 addicted to cocaine. She was at that time 2 purchasing large quantities of cocaine for 3 herself and also for her common-law spouse and 4 also for other acquaintances. She says, through 5 her lawyer, that she was not making any profit on 6 the sale of cocaine and the Crown prosecutor 7 concedes that that statement is consistent with 8 the conclusions drawn by the police investigators 9 at the time. However, her activity still amounts 10 in law to possession for the purpose of 11 trafficking. 12 Mr. Wong appeared in this courtroom earlier 13 this year and pleaded guilty to a conspiracy 14 charge; in particular, that he conspired with 15 five separate named individuals, including this 16 offender Sandra Gellenbeck, to commit the 17 indictable offence of trafficking in cocaine in 18 Yellowknife between July and October of 2005. 19 Mr. Wong received a sentence of five years 20 imprisonment as part of a six-year global 21 sentence for the conspiracy charge and some other 22 charges. 23 One of the other persons that Mr. Wong 24 conspired with was one Mudaliar. Wong and 25 Mudaliar conspired together to purchase one 26 kilogram of cocaine from a British Columbia 27 supplier for $30,000, the intention being to Official Court Reporters 4 1 bring this cocaine to Yellowknife for resale 2 here. Earlier this year, Mr. Mudaliar pleaded 3 guilty to this conspiracy. Mr. Mudaliar had a 4 negligible criminal record. He was sentenced to 5 three years imprisonment, less credit for time 6 spent in pre-trial custody. 7 Another of the persons that Mr. Wong 8 conspired with was one Fraser. Mr. Wong arranged 9 to sell crack cocaine to Mr. Fraser in quantities 10 of one ounce or less which Fraser would then 11 resell to his customers on the streets of 12 Yellowknife. Fraser, who had a related criminal 13 record, pleaded guilty to that conspiracy earlier 14 this year, and also pleaded guilty to another 15 unrelated offence. The Court determined an 16 appropriate sentence on the drug conspiracy 17 charge as two years imprisonment. However, 18 because of the other matter, he received a global 19 sentence of two and a half years imprisonment, 20 following a joint submission from Crown counsel 21 and defence counsel in that case. 22 It is often said that sentencing is an 23 individualized process. However, I mention these 24 other cases arising out of Project Gunship as 25 part of the context for the determination of an 26 appropriate sentence for Ms. Gellenbeck. No two 27 cases are alike but the law does require parity Official Court Reporters 5 1 in sentencing. 2 On the evidence before the Court, 3 Ms. Gellenbeck was not as major a player as Ken 4 Wong. However, her crime is much more serious 5 than that of, say, one Desjarlais, a local 6 well-respected citizen who also got himself 7 involved in Ken Wong's cocaine business and who 8 was sentenced to 12 months imprisonment. Mr. 9 Desjarlais was found in possession of 21 separate 10 one gram pieces of crack cocaine and $2000 in 11 cash that was offence-related. 12 This offender, Sandra Gellenbeck, is now 46 13 years of age and is a life-long resident of 14 Yellowknife. She has a college education, and it 15 seems led a productive life prior to her 16 involvement with cocaine in the year 2003. 17 The letters of reference, filed on her 18 behalf, characterize her as a good person and I 19 take it those are references to her life and her 20 lifestyle prior to the year 2003. 21 I am told that Ms. Gellenbeck has been 22 married or in a common-law relationship with five 23 different partners over the years. She is the 24 mother of four children; the youngest being 16 25 years of age. 26 Ms. Gellenbeck's father, prior to his death 27 in 2002, ran a successful and highly-regarded Official Court Reporters 6 1 business in Yellowknife for a long time. And 2 over the years, Ms. Gellenbeck worked in that 3 family business and on her father's death she 4 took over the operation of that business. 5 Unfortunately for her, in 2003, while she 6 was apparently still grieving the loss of her 7 father, she became involved, I am told, in a 8 romantic relationship with a man who subsequently 9 introduced her to the world of cocaine. She 10 became addicted to the point where she was 11 apparently using as much as five grams a day, and 12 dissipating the substantial assets that she had 13 accumulated herself and also inherited from her 14 father. 15 Ms. Gellenbeck, in her conversations with 16 her lawyer and also with the forensic 17 psychologist who examined her last month, 18 candidly acknowledges that she destroyed her life 19 by her involvement with cocaine. She suffers 20 from episodes of acute emotional distress and 21 depression which reflect her feelings of guilt, 22 regret, and remorse. 23 As her father was a well-respected member of 24 this community, it is not surprising that she 25 feels a great deal of shame at the dishonor that 26 she has brought to the family. I accept that 27 these emotions, which are reflected in the Official Court Reporters 7 1 psychological report and in her lawyer's 2 submissions, are genuine. 3 Ms. Gellenbeck has no previous criminal 4 record. 5 She was arrested on this charge in October 6 2005 and spent approximately two months in 7 custody before obtaining her release on bail 8 pending the resolution of her charges. I will 9 give her credit for that pre-trial custody in 10 accordance with the usual practice of the Court 11 and binding case law. 12 Ms. Gellenbeck's guilty plea, today, acts in 13 mitigation of sentence although it cannot fairly 14 be said to be an early guilty plea or a plea at 15 the first reasonable opportunity. 16 In the determination of the degree or level 17 of Ms. Gellenbeck's moral culpability, I take 18 note of the fact that at the date in question 19 Ms. Gellenbeck was indeed addicted to cocaine, as 20 that fact distinguishes her case from many other 21 cases where the offender's motivation was simply 22 greed. 23 Ms. Gellenbeck's case is not unlike that of 24 another Yellowknife woman, Daisy Posegate, who 25 was also addicted to cocaine and who was 26 sentenced, for a crime very similar to that of 27 Ms. Gellenbeck, to two and a half years Official Court Reporters 8 1 imprisonment in November 2004. 2 Although there is no shortage of previous 3 sentencing decisions of the courts of this 4 jurisdiction, reference is also made quite 5 regularly to the jurisprudence from the Alberta 6 courts, in particular, the Alberta Court of 7 Appeal. 8 In a case called Maskell in 1981, the 9 Alberta Court of Appeal established a starting 10 point sentence of three years imprisonment for 11 offences involving trafficking in cocaine on more 12 than a minimum scale. This three-year starting 13 point sentence was reaffirmed 20 years later in a 14 group of cases referred to as Rahime. In another 15 case entitled Honish in 1989, the Alberta Court 16 of Appeal endorsed a starting point sentence of 17 four and a half years in cases demonstrating 18 wholesale commercial trafficking. 19 In all of these decisions by the courts in 20 Alberta and the Northwest Territories, it has 21 been made clear that unless there are unusual 22 circumstances, a significant term of imprisonment 23 will be imposed for trafficking in cocaine in 24 order to satisfy the objectives of denunciation, 25 deterrence, and the acknowledgment of the real 26 harm that is done to the community and its 27 citizens. Official Court Reporters 9 1 I find that the possession of ten ounces of 2 cocaine for trafficking in Yellowknife, whether 3 for profit or not, to be a very serious crime 4 given the devastation which cocaine has caused in 5 recent years to citizens of this community, 6 whether they are addicts, recreational users, or 7 just innocent property owners. 8 Ms. Gellenbeck comes to court today and 9 pleads guilty and states through her lawyer that 10 she is ready to accept responsibility for her 11 actions. This is to her credit. 12 In a statement prepared for her lawyer, she 13 does blame her former common-law spouse for 14 introducing her to cocaine but in the final 15 analysis she says "I was the one who let it all 16 happen". This indicates genuine self-reflection 17 and self-understanding on her part. 18 Taking into consideration the purpose and 19 objectives of the sentencing process, taking into 20 consideration previous decisions of the Court, 21 including those arising out of Project Gunship, 22 and taking into consideration Ms. Gellenbeck's 23 personal circumstances and the circumstances of 24 her crime, I find that an appropriate resulting 25 sentence is one of two and a half years 26 imprisonment. 27 Please stand, Ms. Gellenbeck. Official Court Reporters 10 1 Sandra Gellenbeck, for the crime that you 2 have committed, possession of cocaine for the 3 purpose of trafficking contrary to Section 5(2) 4 of the Controlled Drugs and Substances Act, it is 5 the sentence of this Court that you serve a term 6 of imprisonment of two and a half years. 7 In addition, there will be the mandatory 8 firearms prohibition order under Section 109 of 9 the Criminal Code for a period of ten years. 10 In the circumstances, there will be no 11 Victim Fine surcharge. 12 Now, Ms. Gellenbeck, from what I have read 13 about you today in these papers here and what Mr. 14 Pringle has said, it seems that through your own 15 self-reflection that you have a good chance of 16 recovery, and that you are capable of turning 17 your life around, to what it was before. And I 18 am sure that your father would want you to try 19 very hard to do that. I wish you good luck in 20 those efforts. 21 Please be seated. 22 Counsel, is there anything further on this 23 case? 24 MS. TKATCH: Yes, Your Honour, I am not 25 quite sure if I remembered to do this, on 26 Count 1, with respect to Ms. Gellenbeck if I 27 directed a stay of proceedings? Official Court Reporters 11 1 THE COURT: Yes. 2 MS. TKATCH: Then also I would like to 3 direct a stay of proceedings with respect to 4 Mr. Ngo on Count 3 and Mr. Vermeulen on Count 4, 5 and I will also provide filed stays for the 6 Court. If I could get that directed then I would 7 advise the Registry to strike those matters from 8 the docket on Monday. 9 THE COURT: You have that, Madam Clerk, 10 Mr. Ngo and Mr. Vermeulen? And I will ask you to 11 do the proper paperwork on that. 12 MS. TKATCH: I will have that filed but if 13 I could direct the stay here then at least we can 14 get if off the docket for Monday. And those are 15 the only other matters that I have. 16 THE CLERK: Sir, the firearms prohibition 17 is ten years from release or ten years from 18 today? 19 THE COURT: Commencing on today's date 20 and expiring on a date ten years after your 21 release from prison. 22 THE CLERK: Thank you, sir. 23 THE COURT: Anything further from you, Mr. 24 Pringle? 25 MR. PRINGLE: Your Honour, I want to be 26 clear, because I practice in different 27 jurisdictions and it is done different ways, I Official Court Reporters 12 1 assume from your judgment that the time in 2 custody was considered and the final result is 3 two and a half years, is that correct? 4 THE COURT: Yes. 5 MR. PRINGLE: Thank you. 6 THE COURT: Thank you, we will close 7 court. 8 ------------------------------------- 9 10 11 Certified to be a true and accurate transcript pursuant 12 to Rules 723 and 724 of the Supreme Court Rules, 13 14 15 16 ____________________________ 17 Lois Hewitt, CSR(A), RPR, CRR Court Reporter 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 13
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