A convicted “mid-level” drug trafficker who was initially sentenced to two years of house arrest has had his sentence extended to five years in prison after an appeal by Crown prosecutors. Kyle Robert Bird was found guilty of two counts of possessing illicit drugs for the purpose of trafficking in Surrey provincial court last year, and received a conditional sentence order of two years less one day. The Crown, which had sought an eight-year sentence in a federal prison, appealed the lower court’s sentencing decision, arguing that it was “demonstrably unfit” for the circumstances of the offences. Writing for the three-judge panel of the B.C. Court of Appeal that heard the case, Justice Joyce DeWitt-Van Oosten agreed with the Crown. The offences The underlying offences occurred in April 2019, according to the appeal court’s decision. Police began investigating Bird after receiving a Crime Stoppers tip stating that he was a drug dealer, the decision indicates. After surveilling him, police executed a search warrant on his home and located “a significant volume of drugs” – including 8.68 kilograms of MDMA and a locked safe containing 834 fentanyl pills – in his bedroom. The street value of the drugs was estimated at $155,000 to $232,000, and the fentanyl pills “were being held out as counterfeit Percocet,” according to the decision. Bird pleaded not guilty to the charges against him, and the case went to trial. His vehicle – a Jaguar – was seized under B.C.’s civil forfeiture program as a result of his offences. The sentencing The trial judge characterized Bird as “a mid-level dealer motivated by profit,” and listed the aggravating and mitigating factors she weighed in determining that a conditional sentence order was appropriate. On the aggravating side was the fact that Bird offered “no explanation … no remorse or insight into his involvement in the drug trade” other than claiming he was holding the drugs for someone else. The volume and type of drugs, as well as the impact they could have on the community during a fentanyl-driven public health crisis, were also considered aggravating, as was the fact that Bird’s 14-year-old daughter lived with him in the house where the drugs were found. On the mitigating side were the fact that he had no prior criminal record, provided positive letters of reference, was “gainfully employed and not personally using or involved with drugs at the time of sentencing,” and is the primary caregiver for his daughter. The trial judge also made note of the fact that Bird’s crimes had occurred five years earlier and he had not committed any additional crimes while out of custody during the trial. As quoted in the appeal court decision, she wrote that she determined a conditional sentence order was appropriate “with some reluctance given the quantity of drugs.” ‘Markedly disproportionate’ DeWitt-Van Oosten’s appeal decision references this reluctance on the part of the lower court judge and cites several other instances in which the judge seemingly expressed the need for a harsher penalty in the case. The “serious circumstances” of Bird’s offences and his “degree of responsibility” suggested a “significant jail sentence” was necessary for denunciation and deterrence, wrote the lower court judge in her decision, according to DeWitt-Van Oosten. “Yet, she imposed community-based imprisonment of two years less one day, concurrent on each count,” the appeal judge’s decision reads. “Respectfully, two years less one day, even when coupled with lengthy probation, is logically irreconcilable with the judge’s findings of fact surrounding Mr. Bird’s offences.” DeWitt-Van Oosten’s decision notes that the conditional sentence imposed on Bird was only six months longer than the low end of the typical sentencing range for street-level fentanyl trafficking cases. Mid-level fentanyl trafficking convictions should generally attract sentences in the four to seven year range, the appeal judge concluded, noting that the decision was the first time B.C.’s highest court had sought to establish such a range for mid-level fentanyl offences. Sentencing ranges for street-level and high-level fentanyl trafficking had already been established by the B.C. Court of Appeal, according to DeWitt-Van Oosten’s decision.
