DATE: August 4, 2021 Information No. 20-15003189 20-15001751 20-15001752 20-15003188 20-1105-30
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
VUK PERIC
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE P. BAND on August 4, 2021, at TORONTO, Ontario
APPEARANCES: L. Price/S. Virani Counsel for the Crown D. Zekavica Counsel for Vuk Peric
WEDNESDAY, AUGUST 4, 2021
BAND, J. (Orally):
Introduction
Mr. Peric pleaded guilty to two counts of possession of fentanyl for the purpose of trafficking. The offences took place on March 15, 2020 and June 5, 2020. Mr. Peric was in possession of just over 50 grams of fentanyl in March, and just over 32 grams in June, for a total amount of 82.63 grams.
Brief Summary of the Facts
In March, Mr. Peric was detained by security in an underground parking garage, in relation to a disturbance. Police attended and found 50.52 grams of fentanyl in a bag containing his personal effects. When executing a search warrant in Mr. Peric's home in June, police found 32.11 grams of fentanyl. In March, Mr. Peric was bound by two probation orders and one interim release order. In June, he was bound by an additional order. He was on bail for the March charges.
Mr. Peric is currently serving a sentence imposed by Justice Backhouse, of the Superior Court of Justice, for a number of offences that Mr. Peric committed in 2018, prior to the offences before this court. They are six counts of possession of a number of drugs for the purpose of trafficking, 6.4 grams of cocaine, 35.35 grams of methamphetamine, .26 grams of fentanyl, 1.4 grams of oxycodone, 1.95 grams of morphine, and 699.73 grams of GHB, as well as various crimes of dishonesty, including possession of a forged driver's licence, a forgery device and stolen passports. He received a global sentence of four years, less credit of four months of pretrial custody. While I was given a citation, I was not given a copy of that decision, and it is not available on Quicklaw.
The Issues
Very helpfully, the parties agreed to the amount of Summers, Duncan and COVID credit that Mr. Peric is entitled to, as well as the ancillary orders sought by the Crown, DNA and s. 109. The central issue in this case, is the determination of a proportionate sentence for the offences before this court, considering the sentence Mr. Peric is currently serving, as a matter of totality.
Positions of the Parties
The Crown's position developed during the sentencing hearing. In her written material, she argued that the March and June offences merited six and five-year sentences respectively. Owing to the principle of totality, she sought a global sentence of eight years. During her submissions regarding the principle of totality, as it pertained to the sentence currently being served, the Crown adjusted her global position to one of six years.
Mr. Peric argues that a total period of five years in the penitentiary, including the sentence he's currently serving, is the fit disposition.
The Crown maintains that the sentences I impose ought to be served consecutively to those imposed by Backhouse, J. While Mr. Peric's initial position was that the sentences ought to be served concurrently, he ultimately made it clear that that position was driven by concerns about totality and proportionality.
The Principles and Objectives of Sentencing
(I'm going to point out that I'll skip the citations for the cases I'm about to cite. They'll be in the written document that the court reporter has, and they can transcribe them accordingly.)
The fundamental purpose of sentencing, is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives listed in s. 718 of the Criminal Code. The fundamental principle of sentencing is that a sentence must be proportionate, see s. 718.1 of the Criminal Code.
A proportionate sentence is one that is individualized. In other words, it is one that is deserved by the offender, see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. Proportionality requires that the court consider the gravity of the offence, and the moral blameworthiness of the offender. It is determined both on an individual basis, that is in relation to the accused and the offence they committed, and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.
In relation to the first branch of the proportionality analysis, the circumstances of the accused are relevant, see R. v. Davies, [2017] ONCA 467. This second factor, known as the principle of parity, requires that like cases be treated alike. This is, of course, not an exact science. It is difficult, I note, and sometimes impossible, to find cases that are similar in all important respects.
It is clear that in cases of this nature, general deterrence and denunciation are paramount sentencing objectives, see R. v. Lu, [2016] ONCA 479 at para. 9, and R. v. Olvedi, [2021] ONCA 518 at para. 57. Owing to Mr. Peric's criminal record and disobedience to court orders, specific deterrence is also a concern here, see R. v. Loor, [2017] ONCA 696. Given his age, record and history, it is difficult to see significant prospects for rehabilitation. I am, of course, required to consider all relevant circumstances, including aggravating and mitigating factors relating to Mr. Peric, or the offences, see s. 718.2(a).
I agree with the Crown that the sentences for the offences before this court ought to be imposed consecutively to the sentences Mr. Peric is currently serving. They took place a considerable period of time after this prior set of offences, in different circumstances, and while Mr. Peric was on bail for those offences. He must be held accountable for them. That said, I must ensure that the cumulative sentence does not exceed Mr. Peric's overall level of culpability, and that in its totality, the sentence is not unduly long or harsh, see R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, R. v. Learning, [2019] BCCA 332, and in s. 718.2 (c) of the Criminal Code. Given that, in combination, these are the first penitentiary sentences that Mr. Peric has received, I must also be mindful of the principle of restraint illustrated in R. v. Borde, 2003 ONCA 4187, [2003] O.J. No. 354 (C.A.).
Authorities referred to
The Crown relied on a number of authorities discussed in her written materials which included a sentencing chart. Since that time, the Ontario Court of Appeal has had occasion to reiterate its thoughts concerning the role that fentanyl is playing in the opioid crisis that plagues our communities, see Olvedi, supra.
It is more potent and harmful than heroin. It is dangerous and even lethal to those who ingest it. It is harmful to those who merely come into contact with it. And it is devastating to the community as a whole. For these reasons, offenders"who traffick in significant amounts of fentanyl should expect to receive significant penitentiary sentences." See R. v. Loor, [2017] ONCA 696.
The cases referred to by the Crown demonstrate that 6 and 8-year sentences have been imposed for possession of amounts ranging from 15 to 150 grams. These include R. v. Disher, [2020] ONCA 710, 8 years for 42 grams; R. v. Sidhu, [2019] ONCA 880, 89 grams - 8 years; R. v. Leite, [2018] ONCJ 132, 147.9 grams - 6 years; and R. v. Moore, [2017] ONCJ 801, 14.98 grams - 6 years. Disher involved an offender who had a serious, related criminal record and who had reoffended while on bail. He struggled with addiction, pleaded guilty, had rehabilitative potential and had never been to the penitentiary. He was sentenced to 8 years. Sidhu involved many aggravating factors and few mitigating factors. Mr. Sidhu had pleaded guilty and had support in the community. In Leite, the offender was a mid-level trafficker motivated by greed. He had no criminal record and had complied with the terms of his bail. On appeal, his 8-year sentence was reduced to 6. In R. v. Moore, [2017] ONCJ 801, a sentence of 6 years was imposed in a case involving approximately 15 grams. The accused, who was motivated by greed, had a significant gap in his otherwise serious criminal record.
The Crown's materials referred to one case in which the offender had received a 4.5-year sentence after a guilty plea, R. v. Thorn, [2017] O.J. No. 5021. The offender was a mid-level trafficker motivated by greed. He was youthful with a limited and unrelated criminal record.
Mr. Peric points to two decisions, R. v. Bedi, [2019] ONSC 1612, and R. v. Jaber, [2021] ONCJ 247. In Bedi, the offender had possessed 28 grams of heroin that contained fentanyl. The existence of fentanyl was treated as an aggravating factor. He was a mid-level dealer who struggled with addiction. His record was minor and unrelated. He was an excellent candidate for rehabilitation and he had been compliant with his bail. In what amounted to a guilty plea after a Charter application was dismissed, he received a 4-year sentence.
Jaber involved an offender, who had been in possession of guns and drugs, including 225 grams of a mixture of heroin and fentanyl. He had been used as a pawn by a high-level trafficker. His record was limited, but related. He had had a very difficult upbringing, and was considered rehabilitated at the time of sentencing. He received a sentence of 4 years for about 225 grams.
In Olvedi, a sentence of 8 years was imposed for a first offender who had imported and possessed 500 grams of fentanyl. The court pointed to appellate authority in other provinces, where eight-year sentences had been upheld. The court declined to pronounce a sentencing range for possession of fentanyl for the purpose of traffick, as the law is still developing in relation to the newest and deadliest agent in the opioid crisis.
Mr. Peric's Personal Circumstances
I learned the following from a presentence report (PSR) and counsel's submissions. When Mr. Peric was an infant, he and his family came to Canada from Serbia. He was exposed to domestic violence and alcohol abuse, as a small child. His parents separated some time later. His mother was violent with him, and he ended up in care for approximately 1 year at age 9 or 10. At age 11, he was sent to live with a grandmother in Serbia. He had trouble adjusting to post-war life there, and began to consume alcohol. He came home to Canada two years later. He continued to abuse alcohol and struggled with behavioral issues. He became a Crown ward and was placed in care between the ages of 16 and 21. His lifestyle was unstable in those years, and he engaged in abuse of a wide range of substances. That continued into the present. He has been taken to hospital a number of times, as a result of drug or alcohol abuse, once as recently as 2019.
Mr. Peric is 28 years old now. He has an interest in the travel industry. To that end, he enrolled in, but did not complete, a program at George Brown. His work history has been unstable and consisted mostly of short-term general labour jobs. This is not surprising, as he has been in custody off and on for most of the last five years. For the last two years, he has been receiving ODSP in the amount of approximately $1,000 per month.
According to the friend of his girlfriend, he has been abstinent from substances for the past year in pre-trial detention and is motivated to make the changes required to live a pro-social lifestyle. He told the author of the PSR that he has made attempts to address his substance abuse issues in the past and that he is interested in doing so again. A counsellor who worked with him while he was in custody in 2019 indicated that he had been open to discussing his background and appeared committed to change.
That said, the author of the PSR, who has been Mr. Peric's probation officer since 2019, is skeptical. Mr. Peric has been under court-ordered supervision since 2013. He has not followed through on counselling opportunities presented to him. He has breached numerous court orders and his reporting has been unsatisfactory.
Aggravating and Mitigating Factors
The main aggravating factors in this case are the nature and quantity of fentanyl that Mr. Peric possessed, the fact that he was on bail at the time and his criminal record. Mr. Peric's record dates back to 2013, with no significant gaps. In 2015 he was convicted of trafficking and sentenced to approximately 11 months.
The main mitigating factors in this case are Mr. Peric's guilty pleas, the circumstances of his pretrial detention and the fact that he struggles with addiction. During the pandemic, when court time has been at a premium, his guilty pleas are particularly meaningful. Mr. Peric has also served a considerable period in presentence detention during particularly harsh conditions that were exacerbated by the pandemic. Mr. Peric's difficulties with substances have been long lasting.
Mr. Peric's challenging personal background must also be recognized, as it has an attenuating effect on his moral culpability.
Mr. Zekavica explained that Mr. Peric possessed the fentanyl to consume and share it with his friends, and argued that there is no evidence that he was motivated by greed. While the amount of fentanyl he possessed was worth a considerable amount of money, the police did not find any collateral evidence of trafficking, such as scales, baggies, large quantities of cash, in either instance. In light of that, and given his addiction, I am not persuaded beyond a reasonable doubt, that Mr. Peric's motivation was greed. However, to be clear, this is the absence of an aggravating factor, not a mitigating factor.
The Fit Sentence
In my view, Bedi and Jaber are not apt comparisons to Mr. Peric's case. Unlike Mr. Bedi and Mr. Jaber, Mr. Peric possessed fentanyl, which is more dangerous than heroin, and did so with complete knowledge. His record is significant, and he is not a strong candidate for rehabilitation. I also find that Mr. Peric's sentencing position fails to reflect the gravity of the offences and the central objectives that are at play.
Given the nature and the quantity of the fentanyl that Mr. Peric possessed, the offences before this court are very serious. His degree of responsibility is attenuated by his personal circumstances, and by the fact that he was in the throes of addiction at the time.
Based on the other authorities that I have reviewed, I find that a sentence in the range of six to eight years would be proportionate, in the case of an offender who, like Mr. Peric, has pleaded guilty to possessing almost three ounces of fentanyl for the purposes of trafficking, has a relatively serious and a current criminal record, and who struggles with addiction.
That said, I must impose a sentence that reflects the relevant circumstances and objectives, while at the same time, ensuring that the cumulative sentences are not unduly harsh. I must also bear in mind that Mr. Peric has not received a penitentiary sentence before.
In these circumstances, I find that the proportionate sentence for the offences before this Court is four years less presentence custody. I would impose four-year sentences on both counts, to run concurrently with each other, but to run consecutively to the sentences that Mr. Peric is currently serving. In totality, this will amount to the functional equivalent of an eight-year sentence. This is a significant penitentiary sentence.
As the parties have agreed, Mr. Peric will receive presentence credit in the amount of 2 years and 9.5 months. As a result, the remaining sentence to be served in relation to the offences before this court will be 1 year and 2.5 months, or put another way, 14.5 months, which will commence at the expiry of the sentences Mr. Peric is currently serving.
Mr. Peric will be ordered to provide a sample of his DNA. Mr. Peric will also be prohibited from possessing weapons pursuant to s. 109 of the Criminal Code for life.
Those are my reasons for sentencing. I have provided instructions to Madam Clerk earlier, so that she would have a leg-up on the paperwork. And I received, since then, property disposition orders times two from Ms. Virani. And that's on consent, I believe, based on the submissions I heard before, Mr. Zekavica? Am I correct?
MR. ZEKAVICA: Yes, it is, Your Honour.
THE COURT: So I have signed both of those. I'm going to send them right away. And I believe if there's nothing left, other than withdrawing whatever other charges there might be, we just have to quickly address the victim fine surcharge. So What should I do about the victim surcharge, Ms. Virani?
MS. VIRANI: Well, Your Honour, given that Mr. Peric has been unemployed for the present time, and will be serving his sentence for the next few years, I'm - I'm content that it be waived, under the circumstances.
THE COURT: Okay. Madam Clerk, there will be no victim fine surcharge. I'll waive it based on submissions of the Crown, which is a fair submission.
CLERK REGISTRAR: Yes, Your Honour.
THE COURT: Are there any other loose ends? I just sent those two signed documents to the Crown.
...WHEREUPON ANOTHER MATTER IS SPOKEN TO
THE COURT: Mr. Peric, I want to wish you good luck on your recovery, going forward. I believe you've got something to say, go ahead.
VUK PERIC: Question. So the four years that I got, right? Are they still from Madam Backhouse, and - and plus another - so I don't understand how this works now.
THE COURT: Okay. Well, I can do my best to explain it to you, but I think, ultimately, Mr. Zekavica would be the person to talk to and follow up with. But, basically, I had an option. I had an option of adding time to your sentence, or making the sentence run at the same time. I chose to add time, because I think that's what the law required. But the time I added was nowhere near what the Crown asked for. But it was more than what Mr. Zekavica asked for.
So with the subtraction of the dead time, the presentence custody, my sentence remaining to be served, is as I put it at the end of my reasons, 14.5 months, because you got all the credit for all that dead time. But that's at the end of your first sentence. It doesn't kick in until the end of your first sentence.
VUK PERIC: Okay. Okay.
THE COURT: That's the best way I can explain it. You can ask Mr. Zekavica for other thoughts and advice after that. But that's what I intended, and that's what I think I described. Anything else, everybody? Ms. Virani, charges to withdraw or what have you?
MS. VIRANI: Yes, yes, Your Honour. I would ask that the remaining charges against Mr. Peric and Ms. Emily Carter be marked as withdrawn, at the direction of the Crown, please.
THE COURT: Okay. Madam Clerk, you've got that, because there's a co-accused as well as the male, who's been tagging along. Mr. Trima's (ph) counsel on that.
CLERK REGISTRAR: Yes, Your Honour.
THE COURT: It's important that those charges against her be marked withdrawn.
CLERK REGISTRAR: The co-accused's charges are also withdrawn, Your Honour.
THE COURT: Good. Yes, that's right. Okay. Thank you to all parties.
CLERK REGISTRAR: Okay.
MR. ZEKAVICA: Thank you, Your Honour. I'm just going to ask Mr. Peric to give me a call once he leaves the phone. He can give me a call here, and I'll give him a greater explanation on the breakdown. Thank you very much, Your Honour, for your sentence.
THE COURT: Thank you all for your helpful submissions. Thank you.
CLERK REGISTRAR: Your Honour, are you going to sign this one, Your Honour?
THE COURT: Yes. When you get everything done, please email it to me.
CLERK REGISTRAR: Okay.
THE COURT: And I'll have a look at it. That was my intention. And I think it will be to instruct you to sign it for me, but one thing at a time.
CLERK REGISTRAR: Okay, Your Honour.
THE COURT: Okay?
CLERK REGISTRAR: I really just panicked.
THE COURT: Okay. Yes. Take your time.
...WHEREUPON THESE PROCEEDINGS WERE CONCLUDED
FORM 2
Certificate of Transcript Evidence Act, subsection 5(2)
I, Helena Tsapoitis-Barbesin, certify that this document is a true and accurate transcript of the recording of R. v. Vuk Peric in the Ontario Court of Justice, held at 60 Queen Street West, Toronto, Ontario, taken from Recording No. 4811_G_20210804_093849__6_BANDP.dcr, dated August 4, 2021 which has been certified in Form 1 by Cathy Schaffter.
Date (Authorized Transcriptionist) Helena Tsapoitis-Barbesin ACT ID# 2372561617 416-889-6054 Helena10@hotmail.com