Court Information

Ontario Court of Justice

Date: 2015-11-26

Court File No.: Toronto 4811 998 13 – 15001127 01

Parties

Between:

Her Majesty the Queen

— and —

Duy Trinh

Judicial Officer and Counsel

Before: Justice H. Borenstein

Heard on: June 22, 2015 and November 20, 2015

Reasons for Judgment released on: November 26, 2015

Counsel:

• Mr. A. Nisker – counsel for the Crown
• Mr. P. DeJulio – counsel for the defendant Mr. Duy Trinh

Judgment

Borenstein J.:

[1] On June 22, 2015, 29 year old Duy Trinh plead guilty to possession of 190 grams of ketamine for the purpose of trafficking. He also plead guilty to possession of $470.00 acknowledging those funds were proceeds of crime. The two offences occurred in December 2013 when the police executed a search warrant. Mr. Trinh's sentencing hearing has been adjourned from time to time with submissions on sentence heard in November, 2015, almost two years after the offences had occurred. The plea was entered before a trial or preliminary hearing was set.

[2] Trinh is a single father of a 10 year old daughter. The child's mother is not in the picture.

[3] Trinh, together with his daughter and his mother, rent and live in a basement apartment of a house. Trinh's mother works in a nail salon Monday to Saturday. She leaves the home at around 8:40 a.m. and returns home between 7:30 and 8:30 at night.

[4] Mr. Trinh was born in Vietnam in 1986. He came to Canada when he was 14 or 15 years old. He completed grade 8 in Vietnam. He went to high school in Canada but never finished high school.

[5] He holds two jobs. The first, he is an apprentice in training in a nail salon studying to become a nail technician like his mother. He has been apprenticing since February 2015 and earns between $300 and $400 a week while training. He drives his daughter to school every morning. He then goes to the salon from 930 until around three in the afternoon when he goes and picks up his daughter from school. He then stays home with his daughter from until his mother comes home between 7 and eight at night. When she does, Trinh then goes out to his second job where he works as a waiter in a pool hall returning home between midnight and 1:30 in the morning depending on the day. The next morning, the cycle repeats. He has an older brother who, in the past, has helped with his daughter but neither his brother, nor anyone else, are in a position to consistently and reliably help the accused with his daughter when he goes to jail. That is, other than the accused's mother.

[6] The accused has no criminal record. I have reviewed the pre-sentence report. Further, both the accused and his mother testified at this sentencing hearing.

[7] Turning to the circumstances of the offence, in December 2013, the police executed a search warrant at an apartment. The accused had moved into a room in that apartment in May 2013. Two others had rooms in that apartment as well. The police executed the warrant. There were drugs, and a large amount of Claritin in the common areas of the apartment. In the accused's bedroom was 800 grams of marijuana. During the police search, the accused and two others returned to the apartment. The accused was carrying a bag that contained the ketamine, a scale and the $470.00.

[8] The accused was released on bail and has been on bail for the last two years without incident.

[9] The Crown submits that a sentence of 18 months in jail is appropriate in this case.

[10] The defence submits that a creative sentence should be imposed that would denounce the conduct, deter Trinh and other offenders but allow him to continue caring for his daughter. The defence seeks an intermittent sentence for the ketamine offence and a lengthy conditional sentence for the proceeds count.

[11] The most aggravating feature of this case is the drug itself. While the Crown concedes that Ketamine may not be as addictive or harmful as cocaine or heroin, it can be. The potentially dangerous effects of ketamine have been summarized in the case of R. v. Phan (paragraphs 56 and 57). These include hallucinations, feelings of dissociation, sedation and amnesia. Ketamine is frequently sold to young people in bars and clubs. When combined with alcohol, it can be particularly dangerous. The fact that the accused possessed seven ounces of ketamine for the purpose of selling it for commercial gain is what needs to be deterred and denounced.

[12] There are also significant mitigating features of this case. First, Trinh is relatively youthful with excellent prospects for rehabilitation. Second, he is caring for his daughter without the help of the daughter's mother. Third, despite failing to finish high school, he is hard working. He trains at a nail salon during the day and is about to commence work as a nail technician. At nights, he works another job. Fourth, he plead guilty before setting a date for a trial or a preliminary hearing. I accept that he is genuinely remorseful. Fifth, he has remained on bail and has not re-offended in almost two years. Sixth, he has no criminal record.

Jurisprudence

[13] Justice Roberts, then of the Superior Court, in the recent sentencing decision of Phan (2015) Ont. SC 4681 provides a thorough review of the sentencing decisions and principles in relation to ketamine sentencing. As noted in Phan, the principles of denunciation and specific and general deterrence weigh heavily in relation to trafficking Schedule 1 substances due to the serious risk to health and safety those substances pose. However, as also noted, sentencing first offenders should emphasize, where possible, specific deterrence and rehabilitation. However the various principles of sentencing are weighed, the overarching principle in sentencing is that the sentence must be proportionate to the offence and the degree of responsibility of the offender. The Court must consider the need for deterrence, denunciation and rehabilitation. It must assess whether the offender's separation from the general public is necessary. How those factors are weighted will differ in each case depending on all the circumstances of each offence and offender. Use of incarceration must always be as restrained as possible. The ultimate goal of a just and proper sentence is to contribute to the protection of the public.

[14] In Phan, Justice Roberts's review of the sentencing jurisprudence and found a broad range between six months to 14 years. Justice Roberts noted that sentences at the lower end of the range involved youthful first offenders, addict-traffickers, those trafficking small amounts, guilty pleas and no violence. Sentences toward the higher end of the range often included prior related criminal records and larger amounts. Justice Roberts noted that it is difficult to find many cases dealing solely with Ketamine. Most often, the sentence imposed is in relation to Ketamine as well as many other drugs.

[15] Phan himself was a 30 year old first offender. He was convicted after trial of possessing 673 grams of ketamine for the purpose of trafficking. That is a pound and a half of ketamine, more than three times the amount Trinh possessed. One of the driving considerations in the sentence imposed by Justice Roberts was the fact that Phan was a paraplegic and would have had an extremely difficult time in jail. Justice Roberts concluded that a conditional sentence of two years less a day followed by three years probation would be appropriate. There were other decisions where conditional sentences were imposed. Conditional sentences are no longer available for this offence.

[16] In R. v. Barkow [2008] O.J. 785 (O.C.J.), a 23 year old first offender plead guilty to trafficking 2,000 ecstasy pills, over 250 grams of cocaine in numerous transactions over two years, possession of 512 grams of cocaine for the purpose of trafficking and possession of 571 grams of ketamine. Barkow possessed numerous other drugs in significant amounts that were read in as aggravating factors on sentencing. Barkow suffered depression and was an addict but had taken significant steps to leave her criminal life behind. Barkow was sentenced to three years in jail.

[17] In R. v. Ho, [2011] OJ No 6672 (Ont. SCJ) a 45 year old with an extensive criminal record was found guilty after trial of possessing 8.2 grams of ecstasy, 2.8 grams of ketamine and 115.4 grams of methamphetamine. He was a mid level commercial dealer and was sentenced to four years in jail for three counts of possession for the purpose of trafficking.

[18] In R. v. Kelly, [2009] O.J. No 5829 (OCJ), a 22 year old addict trafficker with a related criminal record plead guilty to two counts of trafficking and seven counts of possession for the purpose of trafficking. The drugs in question were .32 grams of MDMA, .29 grams of cocaine, 133 grams of GHB, 13.5 grams of methamphetamine, 10 grams of ketamine, 4 tabs of MDMA, 4 grams of crack cocaine and .9 grams of powder cocaine. He received a sentenced of 2 years less a day.

[19] In this case, general deterrence and denunciation are certainly factors driving this sentencing. This is so despite the fact that Trinh plead guilty and is a first offender. However, due to the mitigating factors, specific deterrence and rehabilitation are no less important considerations in this case. I do not think that Trinh needs to be specifically deterred. I believe the process of his arrest and prosecution coupled with his conduct while on bail demonstrate that he has reformed, that he has learned from his mistake. Specific deterrence does not require custody in this case. Nor does rehabilitation.

[20] Mr. Trinh must also be sentenced for the proceeds of crime charge. Both charges arose out of the same incident. Totality must be kept in mind. The fact that he is being sentenced for two offences allows for somewhat greater flexibility in this sentence while still bearing in mind totality.

Sentence

[21] I conclude the following sentence is appropriate:

For the possession of ketamine for the purpose of trafficking: 6 months in jail.

For the proceeds of crime charge: 18 months less one day conditional sentence, followed by 2 years of probation.

[22] The terms of the conditional sentence will be as follows:

• Report to your conditional sentence supervisor within 72 hours of your release from custody as directed.

• Remain within the Province of Ontario unless you receive the prior written permission from your conditional sentence supervisor.

• Keep the peace and be of good behavior.

• Not to possess any non-medically prescribed drugs.

• For the first six months of the conditional sentence, you will be confined to your residence with the following exceptions:

  • Unless you are travelling directly to and from work, or while at work;
  • Travelling directly to and from driving your daughter to school or other appointments;
  • Between noon and 5:00 pm every Sunday for personal errands;
  • For medical emergencies for you or your family;
  • With the prior written permission of your supervisor.

• For the remaining 12 months less a day of your conditional sentence, you will be subject to a daily curfew of between 10:00 p.m. and 6:00 a.m. subject to those same exceptions.

[23] Following your conditional sentence, you will be placed on probation for a period of one year. You will report to your probation officer within 72 hours of the commencement of this probation and thereafter as directed. You are subject to the mandatory terms of probation and you are not to possess any non-medically prescribed drugs.

Ancillary Orders

[24] Pursuant to s. 16(1)(b)(ii) of the Controlled Drugs and Substances Act, I order that all of the drugs seized and detained in this case, as well as the drug paraphernalia (the digital scale), be forfeited to Her Majesty in right of Canada and thereafter disposed of in accordance with the law.

[25] Pursuant to s. 462.37 of the Criminal Code, I order that the proceeds of crime, namely, the $470.00 in Canadian funds, be forfeited to Her Majesty in right of Canada to be disposed of as directed by the Attorney General or otherwise dealt with according to the law.

[26] Pursuant to s. 109 of the Criminal Code, there will be a complete weapons and ammunition prohibition for ten years.

[27] There will also be an Order pursuant to s. 487.051(3) of the Criminal Code, that a sample of bodily substance be taken from the accused for forensic DNA analysis. I am satisfied that such an order is in the best interests of the administration of justice in light of the nature of this offence and the relatively minimal impact that such an order would have on the accused's privacy and the security of his person.

Released: November 26, 2015

Signed: Justice H. Borenstein