A man convicted of a marijuana trafficking charge last March will wait some more to learn his sentence, as the court adjusts to changes brought on by the legalization of the drug.
Stephen Parsley was due to be sentenced in provincial court in St. John's this Friday on a charge of possessing marijuana for the purpose of trafficking. On Wednesday, the judge accepted an application from Parsley's lawyer for a postponement until the province's Court of Appeal rules on a similar case.
"When sentencing ranges are in a state of flux — and we have a new law that's being applied — it's important for the highest court in our province to address the situation and give us all direction of where the range may be," Judge James Walsh said.
Parsley, 31, was charged after police executed a warrant in May 2014 to search a home and sheds on Empire Avenue where they believed he was living. With help of a detection dog, officers located drugs in plastic bags and duffel bags in three places in one of the sheds, including cocaine and ecstasy in a bag on the seat of a side-by-side utility terrain vehicle. Parsley's fingerprints were recovered from two vacuum-sealed bags of marijuana, totaling about 48 pounds.
"When sentencing ranges are in a state of flux — and we have a new law that's being applied — it's important for the highest court in our province to address the situation and give us all direction of where the range may be." — Judge James Walsh
Walsh convicted Parsley of the marijuana charge, but acquitted him of charges related to the cocaine and ecstasy. He accused the lead RCMP investigator on the case of having tunnel vision when it came to Parsley's guilt and failing to consider other suspects, including the owner of the UTV, who was never investigated.
It was Parsley's second time in court for the same charges: he had been acquitted of them all in 2017, after a different judge ruled police didn't have sufficient grounds to obtain the search warrant. The acquittal was overturned on appeal, and a new trial ordered.
Although defence lawyer Erin Breen and prosecutor Neil Smith had already made their arguments for Parsley's sentence last fall — with Breen suggesting a maximum of nine months and Smith looking for federal time — Breen applied Wednesday for a postponement of the sentencing date. She asked the judge to wait and consider the decision in a recently filed appeal in a similar case, given marijuana has now been legalized.
The case being appealed is that of Nicholas Murphy, who was arrested in Mount Pearl in January 2017 after picking up just over 24 pounds of marijuana from the home of another man, where he had arranged for it to be shipped from B.C. Murphy pleaded guilty to a charge of possessing marijuana for the purpose of trafficking, and was given a suspended sentence and two years' probation last month by Newfoundland and Labrador Supreme Court Justice Donald Burrage.
Burrage quoted Bob Dylan in his sentencing decision.
"In 1964 singer/songwriter and now Nobel Prize in literature recipient Bob Dylan released his iconic song, 'The Times They Are a Changin'," the judge wrote. "This decision concerns a just and appropriate sentence for Nicholas Murphy for possession of cannabis for the purpose of trafficking in these changing times."
The Crown in that case — which had been looking for an 18- to 24-month prison term for Murphy — had argued that his crime had occurred before the federal legalization of marijuana last October and was an offence under the new Cannabis Act. The Crown has appealed Burrage's sentence.
In Parsley's case on Wednesday, Breen said Parsley had already been through an appeal process once and didn't have the resources to do it again.
"It seems whatever your honour's decision is on Friday, it will end in the Court of Appeal," she said, urging Walsh to postpone his sentencing.
"We have to deal with the law as it stands today. There will be another case tomorrow. There will be another one two weeks from now. There will always be one in the mill. Every case stands on its own. Every case is based on its own facts." — Neil Smith, crown prosecutor
Smith pointed out it's been five years since Parsley had been charged (though he has waived his rights to argue for a dismissal on the grounds of the case taking too long), and said legislation on cannabis has changed, but not when it comes to possessing 48 pounds of it.
"We can't keep waiting for what-ifs," Smith said. "We have to deal with the law as it stands today. There will be another case tomorrow. There will be another one two weeks from now. There will always be one in the mill. Every case stands on its own. Every case is based on its own facts."
Walsh postponed his sentencing until April, saying he was concerned that Smith and Breen had not had an opportunity to present submissions relating to the Murphy sentencing decision, and noting that other semi-recent cases included a broad range of sentences.
"Where the superior courts of this province have kept moving the bar and counsel articulates to me where the range is and I'm bound by it, in essence, then I think it's beneficial to all concerned if I know what the opinion is from the Court of Appeal," Walsh told the lawyers. "I think the administration of justice demands that the parties see what the Court of Appeal has to say and give you an opportunity to be heard, if you choose to, after the Court of Appeal renders an opinion."