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| stonedinaustralia |
well i don’t expect to ever have the record for the most number of posts but with this sucker i reckon i must be in the running for the longest – and this was not a “cut and paste” job – i typed very single bloody word (approx. 4,500) of it
Despite its length it's worth reading - ‘tho some of you may find it a bit tedious i’m sure my legal brethren on the board (at least) will find it of interest as well as those with an interest in either the law or drugs or (like me) both
If nothing else it’s interesting to read keith’s legend reduced to legal findings of fact
Also of note – the case of Fraser referred to in the judgment is that of Robert Fraser after the Redlands bust (and i’m sure the judges were aware of the connection)
Also a few laughs when you consider all the talk about keith “giving up” on drugs.
In the end time was on keith’s side and i wonder if the result may have been different if the appeal had been brought on sooner rather than later.
Here we go:
REGINA v RICHARDS
Ontario Court of Appeal, Howland C.J.O., Dubin, Martin,Lacourciere and Houlden, JJ.A. September 17, 1979
Sentence – Drug offences – Possession – Heroin addict – Accused member of prominent British musical group - Accused heroin addict and found in possession of large quantity of heroin for own use during Canadian tour – Since arrest accused apparently cured of addiction – Trial Judge imposing suspended sentence with conditions that accused continue treatment and perform benefit concerts for the blind – Crown appealing sentence – terms of probation substantially completed – Whether appeal should allowed _ whether deterrence paramount consideration – Whether terms of probation appropriate
Sentence – Principles – Statistics – Charge of possession of heroin – Whether statistics showing disposition for same offence properly considered by trial Judge
The accused was a member of a prominent musical group the “Rolling Stones” and during the group’s tour of Canada he was found in possession of 22 gm. Of heroin having a value of $2,000.00 to $3,00.00. The accused was a British citizen and 34 years of age. He had attempted to cure his addiction on previous occasions but following his arrest he again attempted a cure. Reports filed at trial and on appeal some two years after the arrest indicated that the accused was free from drug use and was highly motivated to remain off heroin.The accused pleaded guilty to simple possession and was given a suspended sentence with one-year probation with conditions that , inter alia, he continue his treatment for heroin addiction and give benefit performances for the blind. The accused had a prior conviction in England for possession of heroin in 1973. The trial Judge in imposing sentence referred to statistics which showed that approximately one- half of the persons convicted of simple possession of heroin were given non-custodial sentences. The Crown appealed against the sentence. By the time the appeal was heard the accused had substantially complied with the terms of the probation order and in particular he and his group had performed in two concerts to which blind persons had been admitted free and which had further netted $39,000.00 to the C.N.I.B. On appeal by the Crown, held, the appeal should be dismissed.
While the statistics to which the trial Judge referred did no disclose the circumstances of the offence or the offender and thus undue weight should not be given to them, nevertheless, the high percentage of cases in which a non-custodial sentence was imposed is a fact of some significance which the trial Judge was entitled to take into account. Whether a non-custodial sentence is an appropriate disposition following conviction of an addict for simple possession of heroin must, of necessity, depend on all the circumstances. Past experience may indicate that the offender is nit likely to community-based treatment, or that the circumstances are such as to require temporary removal of the offender from his environment. In such circumstances a custodial sentence is appropriate. In this case, however, a sentence of incarceration was not necessary for the accused’s rehabilitation and the issue was whether the circumstances made deterrence the paramount and overriding factor. This offence was a serious one notwithstanding the accused was an addict and undoubtedly the accused’s public personality carried with it increased responsibilities to society (ed. note …Bullshit!!) in determining an appropriate sentence. In view of the demonstrated sincerity of the accused’s desire to overcome his addiction and his efforts in that respect, it could not be said the trial Judge erred in imposing a non-custodial sentence. In such a case the appeal Court should vary the sentence only where it is so manifestly wrong that the interests of justice require intervention.
Finally, the type of community service ordered was not appropriate. In general, it is appropriate to require an offender to perform community services of the type that he is fitted to perform. However, in this case the probation order should have contained a term that the accused engage in a programme to point out the disastrous consequences that the drug addict faces and actually to discourage the use of drugs. It would not now, however, be appropriate or practical to impose new terms.
APPEAL by the Crown from the sentence imposed following the accused’s conviction on a charge of possession of heroin.
J.A.Scrollin Q.C., and B.R.Shilton, for the appellant, Attorney - General of Canada.
A.Maloney Q.C., and G.Hainey, for accused, respondent.
BY THE COURT: - The Attorney- General of Canada applies for leave to appeal and if leave be granted appeals from the sentence imposed on the respondent by His Honour Judge Graburn on October 24, 1978, following a conviction entered the previous day (ed. note - so can we presume the Judge stayed up all night writing the Judgment or was it already written??) on the respondent’s plea of guilty to the offence of possession of Diacetylmorphine (heroin) contrary to s.3(1) of the Narcotics Control Act, R.S.C. 1970,. Although initially arraigned on an indictment charging him with possession of heroin for the purposes of trafficking, the respondent pleaded guilty to the included offence of simple possession of heroin. This plea was accepted by the trial Judge with the concurrence of Crown counsel.
The learned trial Judge suspended the passing of sentence and released the respondent on the following statutory and special conditions contained in a probation order to be in force for one year, namely:
1. keep the peace and be of good behavior, and, come and receive judgment when called upon;
2. within the next 24 hours to report to a probation officer;
3. to continue treatment for heroin addiction with Dr.Stevens at Stevens Psychiatric Centre in New York City and at such other places as she directs when elsewhere than in New York
4. to report to the probation officer in Toronto during the week of May 7, 1979 and September 24. 1979 and to file up-to-date- reports from the Stevens Psychiatric Centre in New York City and reports from such other psychiatric facilities as Dr. Stevens or the probation officer considers necessary;
5. within the first six months of the probation, after making the necessary arrangements through the probation officer and with the officials of the Canadian National Institute for the Blind here in Toronto, give a benefit performance at the Canadian National Institute for the Blind auditorium. Bayview Avenue, in Toronto, either personally or with a group of musicians of choice , to the blind, young people associated with the Canadian National Institute for the Blind.
This probation order was subsequently varied by His Honour Judge Graburn on April 23, 1979, following an application by counsel for the Crown on April 23, 1979, to vary the probation order so as to postpone the benefit performance originally ordered.
The variation which was made ordered the respondent to report to his probation officer during the week of April 23, 1979, instead of during the week of May 7 . 1979, and further provided for two benefit performances at the Oshawa Civic Centre, Oshawa, instead of the one performance at the C.N.I.B. Bayview Auditorium, Toronto.
The facts leading to the charge , so far as material, are these. On February 27, 1977, officers of the Ontario Provincial Police and the Royal Mounted Canadian Police went to the Habour Castle Hotel in Toronto to execute a warrant for the arrest of Anita Pallenberg, described as the “ common law wife” of the respondent. In the course of the search of a bedroom in which the respondent was sleeping, the officers found paraphernalia suitable for the administration of heroin. These items contained traces of heroin. The officers also found, in he top drawer of a dresser, a leather pouch inside of which was a clear plastic bag containing a white powder which on analysis proved to be 22 gm. Of heroin of 32% purity.
The respondent remained asleep during the search which lasted about half an hour. He was then awakened, arrested and charged with being in possession of heroin for the purpose of trafficking.
The respondent is a musician and is a leading member of the Rolling Stones, a well known “Rock and Roll” band. The respondent gave a statement to the police in which he admitted that the heroin was his.He indicated to the police that he had been a heavy user for four years and that he had purchased a large quantity of the drug to satisfy his habit for the five to six weeks that he was going to be in Canada, (ed. note – I wonder who really made the score??) (It was conceded by the Crown that the heroin was purchased in Canada.) He also told the police that he had tried to “kick” the habit several times, but that he was on tour and did not have the time to complete his treatment programmes.
The normal purity of “street heroin” is between 10 and 20%.Using 15% as an average, the 22gm. Of heroin seized were said to be equal to 44 gm. Of “street heroin”, which would produce 440 capsules of “street heroin”. An extremely heavy user would use 10 capsules a day.The heroin seized was said to have a wholesale value of $2,000.00 to $3,000.00. It is conceded, however, that the quantity found in the possession of the respondent is not inconsistent with the amount required by the respondent for his personal consumption during his Canadian tour.
The following facts derived from the submissions of counsel, and the reports filed with consent of both counsel on the proceedings with respect to sentence, are not in dispute.The respondent is a British citizen and at the time of the imposition of sentence was 34 years of age. He received his early education at Dartford, Kent. He then attended art school where he studied graphic design and, while there, learned to play the guitar. The group known as the Rolling Stones was formed in 1962, and has been giving performances and making recordings since that time. In 1967 the respondent began to use drugs, and in 1969 he commenced to inject himself with heroin subcutaneously. Counsel for the respondent, at trial, attributed the respondent’s experimentation with drugs to exhaustion following a gruelling schedule. Be that as it may, the respondent’s use of drugs developed to the point where he was using large amounts of heroin daily. The respondent, prior to his arrest on the present charge, had made several attempts to cure his addiction, his first attempt, early in 1972 was apparently successful, but the treatment did not result in a permanent cure. The respondent also took treatment in Switzerland later in the year 1972. He was convicted in London, England, in November 1973, of the possession of heroin for which a fine of 50 pounds was imposed. We are informed that the conviction resulted from traces of heroin found on spoons and a syringe, and that the quantity of heroin involved was not substantial. The applicant continued to use heroin and, in 1974, was again treated unsuccessfully in Switzerland.
The respondent, following his arrest on the present charge. Again sought treatment and, in the month of May 1977, he came under the care of Dr. Anita Stevens in New York City. Crown counsel at the trial filed two reports from Dr.Stevens and defence counsel filed a number of reports from her, the latest of which was dated October 21 1978. The reports disclosed that the respondent was receiving from Dr. Stevens psychiatric treatment for his drug addiction on a regular basis; further that he was receiving psychotherapy to assist him on overcoming the underlying reasons for his previous use of drugs; that he had made remarkable progress and that he was strongly motivated to overcome his addiction. Regular laboratory tests showed that he was free from heroin and , in particular, free from heroin. In her report dated October 21 1978, Dr.Stevens recommended that the respondent continue to receive psychotherapy without interruption for a further period of six to 12 months. Dr. Steven’s assessment and recommendation was supported by a letter from Dr. Lewis R. Wolberg, Clinical Professor of Psychiatry at New York University Medical School.
On he hearing of the appeal we received additional material including a post- sentence report, dated June 12 1979, from the respondent’s probation officer, to whom Dr. Stevens has been providing periodic reports. The post – sentence report verifies that the respondent has complied with the terms of the probation order with respect to treatment, that he has remained free from drugs, and that he has continued to be strongly motivated to rid himself of his previous drug dependency.
The two concerts provided for in the amended probation order were held in April 1979. Twenty seven hundred blind persons and their escorts attended the concerts and were admitted without charge. Tickets were sold to the general public. The respondent and the supporting musicians received no payment for their services. In addition, the respondent and Mick Jagger, the lead singer of the group, paid their own expenses. The Canadian National Institute for the blind received a net amount of $39,000.00 after the payment of all expenses in connection with the concerts.
The learned and experienced trial Judge, after giving careful consideration to the matter of sentence, concluded that in Canada a custodial sentence is not invariably imposed following a conviction for possession of heroin, that the long term interest of society was best served by the continuing treatment of the respondent and that this was not a case for a custodial sentence.
The Crown’s application and appeal against sentence, pursuant to ss. 605(1)(b) and 624 of the Criminal Code, are based on the principal ground that the sentence does not give sufficient weight tot he factor of general deterrence, although other subsidiary grounds of appeal were also advanced.
Mr.Scrollin for the Crown, in his able argument, contended that the imposition of a non-custodial sentence in the circumstances of this case reflected “a major failure” to give effect to the principle of general deterrence, failed adequately to mark the seriousness of the offence and depreciated its gravity. His position was that the offence of possession of heroin requires the imposition of a custodial sentence in the absence of exceptional circumstances. He strongly urged that in the present case, not only were there no exceptional circumstances which might justify the imposition of a non-custodial sentence but there were a number of circumstances of aggravation. In support of his submission that, in the absence of unusual circumstances a conviction for simple possession of heroin requires a sentence of imprisonment in the public interest. Mr.Scrollin relied upon the judgment of the Alberta Supreme Court, Appellate Division in R v Spicer (1975). In that case the Court reduced a sentence of 18 months to 12 months for simple possession of heroin, with a dissenting member holding that six months would have been an appropriate sentence. McGillivray, C.J.A., delivering the majority judgment, distinguished between the addict and the non-addict. He expressed the view that it was generally desirable to impose a sentence of incarceration on an addict for two reasons: First, because in order to supply his habit, the addict almost inevitably turns to a life of crime; secondly, that if removed from access to the drug the addict “at least may attempt to make a decision with regard to his future”. Both reasons given by the learned Chief Justice are, it seems to us, essentially different aspects of the same problem. If the addict can be cured of his drug dependency, either with or without incarceration, both aspects of the problem have been resolved. Mr.Scrollin very fairly conceded that in so far as it is possible to say that a person is cured of drug addiction, the respondent is cured.
In the case of the non-addict, McGillivary C.J.A., considered that a custodial sentence for simple possession of heroin was generally desirable to impress upon the offender that dangerous and addictive drugs were not to be the subject of experimentation.
Another serious aspect of the offence is, of course, that the use of illicit drugs encourages trafficking in them.
In R v Fraser (1967), the English Court of Appeal (Criminal Division) upheld a sentence of six months imprisonment for possession of heroin imposed upon the appellant who was an addict at the time of the offence but who, following his arrest, had submitted himself to treatment and was cured of his addiction. The court expressed the view that, in the absence of special circumstances, a custodial sentence was required in the public interest for possession of heroin. Lord Parker, L.C.J., said that an addict is not being sentenced because he is an addict, but for commencing to take the drug. This basis for the imposition of a custodial sentence seems inappropriate in the present case where the respondent commenced to take the drug several years ago in another country. Moreover, it is apparent from the statistics obtained from the Bureau of Dangerous Drugs, Health Protection Branch, Department of National Health and Welfare to which the trial Judge made reference in his reasons for sentence, that non-custodial sentences have been imposed in Canada following conviction for simple possession of heroin, in a high percentage of cases. According to the statistics that have been furnished to us, between the years 1973 to 1979, 49.5% of all persons convicted of possession of heroin in Canada received non-custodial sentences.
In a recent work: Bruce A. MacFarlane, Drug Offences in Canada (1979), the author says at p.567:
“Recognizing that heroin possession is often more a symptom of a medical disorder rather than an attempt to break the law, the courts have responded by imposing fines or probation for first offenders and imprisoning those who have been convicted for subsequent offences. Indeed, of all persons convicted of the offence during 1976 – 1977 (including repeaters), approximately 45% were either fined or placed on probation. There is, however, some fairly strong authority in favour of imprisoning even a first offender: R v Spicer (1975)”
Mr.Maloney argued with great force that the non-custodial sentence imposed upon the respondent was in line with the sentences imposed upon approximately half of the persons convicted of simple possession of heroin during the last five years.
It is of some significance that the Opium and Narcotic Drug Act, the precursor to the present Narcotic Control Act, provided for a minimum penalty of six months imprisonment for the offence of simple possession of a narcotic drug. The absence of a minimum penalty in the present Act is a recognition by Parliament that a non-custodial sentence for simple possession, even heroin, is not precluded in all cases.
The statistics to which reference has been made do not, of course, disclose the circumstances of the offence or the offender in those cases where a non-custodial sentence was imposed for possession of heroin and undue weight should not be given to them. The high percentage of cases in which a non-custodial sentences were imposed is , nonetheless, a fact of some significance which the learned trial Judge was entitled to take into account. Whether a non-custodial sentence is an appropriate disposition following a conviction of an addict for simple possession of heroin must, of necessity, depend on all the circumstances. There can be little doubt that the cure of heroin addiction is, at best, difficult, and that the offender must be strongly motivated to overcome his addiction if there is any chance of success. Past experience with respect to the offender may show that the offender is not likely to respond to community based treatment, or the circumstances may be such as to require the temporary removal of the offender from his environment and to indicate that he can only be assisted in a correctional facility. In those circumstances a custodial sentence is appropriate.
It is conceded that a sentence of incarceration is not necessary for the respondent’s rehabilitation, but it urged that the respondent’s public stature, his encouragement of the use of drugs by his music, and his prior conviction made deterrence the paramount and over-riding factor.
The evidence that the respondent, in his music encouraged the use of drugs is somewhat tenuous and is based upon the evidence of Mr.Jack Batten, a music critic, who gave evidence on behalf of the respondent in the proceedings on sentence. He said that the respondent is a guitarist who, along with Mick Jagger, writes the greater part of the music which the Rolling Stones play. In cross – examination he gave the following evidence:
Q. And you’ve indicated that you’re familiar with the words of the group the Rolling Stones?
A. I think so, yeah.
Q. And can you tell me, do any of their works discuss drugs or refer to drugs?
A. Yeah, yeah they do. But it’s pretty common in all popular music.
Q. In what vein, sir (ed. note - pun intended?).
A. I beg your pardon.
Q. In what vein do they refer to drugs?
A. Well in some cases in a mocking sense. Some cases it’s a – my – my own experience of drugs is second – hand, so I’m saying they – convey what I presume to be the ecstasy that comes with taking the drugs.
The trial Judge deplored the fact, if it was a fact, that the music of the Rolling Stones glorified and sanctioned the use of drugs, but considered the respondent’s efforts to remove himself from the drug subculture could only have a salutary effect on those who might be open to his influence. The trial Judge considered that the respondent’s prior conviction merely confirmed his addiction. In considering the weight to be given to the prior conviction it is right to observe that the respondent both before and after that conviction endeavoured, albeit unsuccessfully, through treatment to rid himself of his addiction.
The offence of which the respondent was convicted is a serious offence, notwithstanding that he was an addict. However, the medical implications of addiction pose difficult problems in determining what is an appropriate sentence. Undoubtedly, the respondent’s public personality carried with it increased responsibilities to society.
The issue in this appeal is whether because of the respondent’s public personality and the circumstances to which reference has been made, a custodial sentence was required, notwithstanding that a non-custodial sentence of an addict for simple possession of heroin, may sometimes be an appropriate disposition.
The principle is well established that an appellate Court should not lightly interfere with the sentence imposed by the trial Judge and should not do so merely because some or even all members might have imposed a different one.
As this Court has said, a person released on a suspended sentence and probation does not go scot-free. In this case, the respondent was required to continue his treatment for addiction and perform the community service directed in the probation order. Any willful failure to comply with the terms of the probation order is a punishable offence under s.666 of the Code, and the Court in those circumstances, in addition to imposing punishment for the breach of the probation order, is empowered to revoke the probation order and impose any punishment that could have been imposed if the passing of sentence had not been suspended.
In view of the demonstrated sincerity of the respondent’s desire to overcome his addiction and his efforts in that respect, we are not satisfied that the trial Judge went beyond the field of his discretion in imposing a non-custodial sentence, or that he was clearly wrong in doing so. Moreover, there is another factor which must be taken into account: the respondent has substantially completed the terms of the probation order with respect to treatment and has performed the community service term of the probation order.
In R v Shaw and Brehn (1977), this Court, although of the view that the trial Judge had erred in not imposing a custodial sentence, declined to interfere with the sentence imposed where the positive rehabilitation programme in progress was proving effective, being of the opinion that the public interest would be bets served by permitting the sentence imposed upon the respondents to stand.
We wish to make it clear that the appeal was pursued and brought on as expeditiously as the circumstances permitted and no blame attaches to anyone in that respect. We are, none the less, of the view that at this stage of the proceedings, when the terms of the probation order with respect to treatment have been virtually completed and the prescribed community service has been performed, that we ought not to vary the sentence unless we are satisfied that it is so manifestly wrong that we are required in the interest of justice to intervene.
We have not been so satisfied. To impose a custodial sentence now would impose a hardship greatly in excess of that which would have resulted from a custodial sentence in the first instance.
There are two subsidiary grounds for appeal which may be dealt with quite briefly. The appellant contends that the trial Judge erred in suspending the passing of sentence and releasing the respondent on probation since, in the absence of international arrangement, the terms of the order could not be supervised or enforced. The learned trial Judge was of the view that in the special circumstances the terms of the order were capable of enforcement. Even if initially it was an error in principle to make a probation order with respect to a non-resident of Canada – a question which we do not find it necessary to decide – the respondent has voluntarily complied with the terms of the order. Accordingly, we would not give effect to this ground of appeal.
Mr.Scrollin also contended that the type of community service directed to be performed was wholly inappropriate; the giving of a concert by the respondent was not seen as a punishment. With respect to the desirability, in general, of imposing a requirement in a probation order that an offender perform community services we reiterate the views of this Court expressed by Mr. Justice Dubin in R v Shaw and Brehn. He said:
“During the appeal some concern was expressed as to the validity of that term in each probation order which required both of the respondents to perform community services. The trial judge was anxious that both these two young men make amends in a positive way for the damage that they had done, not only to society, but to their own peer groups. In my opinion s.663(2)(h) of the Criminal Code authorizes the imposition of such a term…
Not only do I think that the provisions in the probation orders relating to this matter are valid, but in appropriate cases should be more extensively used.”
In general, it is appropriate to require an offender too perform community services of the type that he is fitted to perform. In the present case the service performed by the respondent benefited substantially the Canadian National Institute for the Blind. In the case of another offender, not possessing the advantages of the respondent, a lesser service within the abilities of the offender may count as an equivalent.
Although we are strongly of the view that the probation order should also have contained a term that in addition to performing the concerts, the respondent should engage in a programme to point out the disastrous consequences that the drug addict faces and actively discourage the use of drugs, we do not consider it would now be appropriate or practical to impose new terms.
In the result, for the reasons stated the appeal is dismissed.
Appeal dismissed.
[Edited by stonedinaustralia] |
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| Gazza |
if you typed that all out yourself, youre nuts...but I'm glad you did. Thanks for posting. Interesting reading! |
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| fmk438j |
Reading 'heroin addict' made me jump back a bit. Of course we know what keith was but when you read it in such stark terms, really takes the rock'n'roll sheen off. As does the entire piece. Which is good.
I find it very interesting reading because of how it shows the seriousness of events that have since (along with many others I guess) been added to the the bands' list of colourfull experiences. |
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| nankerphelge |
Isn't it ironic that the formal judicial order of Keith Richards' Toronto bust contains the following:
"Any willful failure to comply with the terms of the probation order is a punishable offence under s.666 of the Code".
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| Doxa |
Thank you, Aussie! Great work from you. Very interesting details the text contains.
Doxa |
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| stonedinaustralia |
quote:
Gazza wrote:
if you typed that all out yourself, youre nuts...
yeah, well you're proabably right but in my defence i would simply say - "BLAME IT ON THE STONES"
seriously 'tho i'm happy you got something out of it (you too fmk and Doxa)- it makes it all worthwhile
and yes nanker that 666 reference got a wry chuckle out of me too...i wonder what what street fighting man would make of that??!!
[Edited by stonedinaustralia] |
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| scully |
Thanks for posting this, interesting (but not that surprising I guess) that Keith's gear was so pure (32% in the 70s in North America was very unusual - unfortunately this is not the case so much these days) I assume that wherever Keith went the 'top' dealers would come running.
I think its fairly certain that the Canadian authorities gave him the reason he needed to stop, which is often what a junkie needs. |
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| stonedinaustralia |
well i don't know about stop...but he certainly had to straighten up and fly right as it were ... you know, find a girl and settle down...when they said in '78 that they were so respectable - well, they were right.. getting busted was no longer a good career move...
funny how the women are involved - mick took the rap for marianne at redlands...toronto the cops came looking for anita and keith wakes busted...
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| scully |
I think it may have helped him to stop being an addict, which is not the same as stopping taking drugs, by any stretch.
It is interesting about taking the rap for the women - here in the UK the legal situation for an addicted couple can be very precarious - there's a 'domestic supply' rule, so that if one partner scores for both and there's a bust, then its an intent to supply (ie dealing) charge. don't know if that's the case elsewhere.
Did Anita get formally charged with anything in the Toronto bust?
It seemed to take Marianne and Anita longer to get over. |
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| KeithRichards210 |
That was a great read. Thanks for taking the time to type it. Your fingers must have felt similar to Keith's during the making of Let It Bleed... |
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