Court File and Parties

COURT FILE NO.: CR-17-90000695 DATE: 2019-05-17 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DEEPAK PRASAD Defendant

Counsel: Andrew Choat, for the Crown Chris Morris, for the Defendant

HEARD: April 12, 2019

REasons for sentence

H. Mcarthur J.:

Introduction

[1] Following a trial, I found Deepak Prasad guilty of one count of possession of cocaine for the purpose of trafficking and one count of possession of marijuana for the purpose of trafficking.

[2] These are my reasons for sentence.

Circumstances of the Offence

[3] On August 31, 2016, police arrested Mr. Prasad and executed a search warrant on the car he was driving. The police found 8.44 grams of powder cocaine and 3.55 grams of crack cocaine divided into small “dime bags” and hidden in a fake Pepsi can. The police also located 13 grams of marijuana, hidden in another fake pop can.

Circumstances of the Offender

[4] Mr. Prasad was 26 years old at the time of the offence and is now 28 years old.

[5] Mr. Prasad grew up in the Parkdale area of Toronto with his parents and two sisters.

[6] Mr. Prasad’s parents owned a convenience store, and as a young man he worked as a cashier at the family store for approximately four to five years.

[7] After graduating from Parkdale Collegiate, Mr. Prasad found work in the entertainment industry as a doorman and driver. He also held shorter term employment, doing residential painting. Unfortunately, Mr. Prasad began to use cocaine and started a “downward spiral”.

[8] In March 2011, Mr. Prasad was convicted of robbery and two counts of use imitation firearm. He received a global sentence of two years and 27 days in addition to 225 days pre-sentence custody. Mr. Prasad explained that he witnessed “horrific” incidents of violence while in custody and developed depression. Following his release from custody, Mr. Prasad said he found it hard to find legitimate employment because he was an “ex-con”.

[9] In June 2014, Mr. Prasad was convicted of possession of cocaine for the purpose of trafficking and, after receiving credit for 132 days pre-sentence custody, received a sentence of one day and 12 months’ probation.

[10] Following his arrest on the offences before this court, Mr. Prasad spent two days in custody before being released on a strict house arrest bail, which only allowed him to be out of the home in the presence of one of his sureties. He was on house arrest for nine months and 19 days. His bail was then varied to an 11 p.m. curfew.

[11] Mr. Prasad has been on bail now for approximately 32 and 1/2 months. During this time, he has done extensive renovations to his parents’ home. He found this to be an “inspiring” experience, and hopes to work in home renovations in the future.

[12] Mr. Prasad has quit doing drugs and is committed to maintaining a drug free life. He has been assisted in his resolve to stay sober by his girlfriend, Mariah Nelson. Ms. Nelson wrote a letter on Mr. Prasad’s behalf and it is clear that they have a close and loving relationship. It also seems clear that Ms. Nelson is a positive influence on Mr. Prasad’s life.

[13] Mr. Prasad also has a close relationship with his family. His mother and both sisters attended court to show their support. They also drafted letters of support, noting that they have seen significant change in Mr. Prasad over the last few years. The letters attest to the fact that Mr. Prasad is committed to changing his life and making up for the mistakes he has made in the past. Mr. Prasad’s family plans to actively assist Mr. Prasad in his efforts to turn his life around.

[14] Mr. Prasad also wrote a letter to the court expressing his remorse for his criminality and his determination to work hard to become “a better man”.

Position of the Parties

[15] The Crown argues that a fit and proportionate sentence for the possession of cocaine for the purpose of trafficking is 18 months and that any sentence imposed for the count of possession of marijuana for the purpose of trafficking should be concurrent. The Crown submits that Mr. Prasad is entitled to credit for two days in pre-sentence custody, at the enhanced rate of 1:1.5, for the equivalent of three days, as well as approximately two months credit for his time spent on house arrest bail, which leaves a remaining sentence of about 16 months. The sentence sought, the Crown argues, is necessary to give voice to the sentencing objectives of denunciation and deterrence.

[16] The defence counters that Mr. Prasad should be credited with approximately nine months for his time on bail and in pre-sentence custody. Once that time is credited, the defence argues that Mr. Prasad should receive a suspended sentence on the cocaine charge. While conceding that this would be a very lenient sentence, he argues that it is open to the court to impose a lengthy conditional sentence on the marijuana charge, which would add to the overall denunciatory and deterrent effect of the sentence. The proposed sentence, he argues, is warranted in light of the many mitigating factors in this case and Mr. Prasad’s rehabilitative potential.

Sentencing Principles and Objectives

[17] Before turning to my analysis regarding what I view as the appropriate sentence in this case, I propose to briefly address the relevant sentencing principles and objectives.

[18] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society. This is achieved by imposing “just sanctions” that reflect one or more of the traditional sentencing objectives: denunciation, general or specific deterrence, separation of offenders from society where necessary, rehabilitation, reparations for harm done to victims or to the community, promotion of a sense of responsibility in offenders and an acknowledgment of the harm done to victims and to the community.

[19] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. As noted by the Ontario Court of Appeal in R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at para. 87, sentencing is a very human process. The fixing of a fit sentence is the product of the combined effects of the circumstances of the offence with the unique attributes of the specific offender.

[20] The fundamental principle of sentencing is the proportionality requirement, which is set out in s. 718.1 of the Criminal Code, R.S.C. 1985, c. C-46: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[21] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b), which provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. As explained in R. v. Lacasse, 2015 SCC 64, at para. 58, while parity in sentencing is desirable, sentencing judges should not lose sight of the fact that each crime is committed in unique circumstances by an offender with a unique profile. As a result, the parity principle cannot be applied in an absolute fashion; given the highly individualised sentencing process, sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17.

[22] The totality principle is addressed by s. 718.2(c). A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh.

[23] The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal recently confirmed in R. v. Sharma, 2019 ONCA 274, at para. 23, the principle of restraint means that incarceration is the sanction of last resort. The court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction: Hamilton, at para. 95.

[24] Pursuant to s. 718.2(a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating Factors

[25] Mr. Prasad’s crime was driven by greed. Although he was a drug user, he trafficked for profit, not to feed an addiction.

[26] Mr. Prasad possessed the drugs in his car. Keeping the drugs in this location increased the risks to the public.

[27] Mr. Prasad has a criminal record, which is aggravating. In particular, he has a prior conviction for possession of cocaine for the purpose of trafficking which is statutorily aggravating: s. 10(2)(b), Controlled Drugs and Substances Act, S.C. 1996, c.19.

Mitigating Factors

[28] Mr. Prasad is still relatively youthful; he was only 26 at the time of the offences and is now 28.

[29] Mr. Prasad has been out on bail without incident since September 2016. During this time, he renovated his parents’ home. This shows his capacity to be pro-social. Importantly, it has shown Mr. Prasad that despite being an “ex-con”, he has marketable skills. Mr. Prasad is now interested in working in the field of home renovations; his goals in this regard speak well to his future potential.

[30] Mr. Prasad has stopped using drugs and is committed to a life of sobriety. He has been clean for about 32 and 1/2 months. This also bodes well for his rehabilitative potential.

[31] Mr. Prasad has a close relationship with his mother and two sisters. He is also in a loving and stable relationship with Ms. Nelson. All attended court and wrote letters on Mr. Prasad’s behalf. This support network will assist Mr. Prasad as he attempts to move forward on a pro-social path.

[32] Mr. Prasad wrote a moving letter in which he expressed remorse for his crimes. In my view, the letter shows that over the past 32 and 1/2 months, Mr. Prasad has developed some insight into what led him into criminality, and the steps that he needs to take to ensure that he remains a law-abiding member of society. I accept that he regrets the path he has chosen thus far and is committed to turning his life around.

[33] I turn now to my analysis as to what would be a fit and proportionate sentence in this case.

Analysis

[34] It is clear that denunciation and deterrence must be the paramount sentencing considerations for possession of cocaine for the purpose of trafficking; R. v. Woolcock, [2002] O.J. No. 4927 (C.A.), at para. 8; and Hamilton, at para. 104-105.

[35] Given the immense societal harm caused by cocaine, courts must clearly denounce those who would seek to profit off the sale of this substance. Further, the courts must send a clear message to those who would traffic in cocaine that they will face significant jail sentences if they do. Given that Mr. Prasad has a related record, the sentence must also drive home to him that he will face increasingly long sentences if he continues to engage in this type of criminality.

[36] On the other hand, rehabilitation is still a relevant sentencing objective in this case. Mr. Prasad has shown that he has the capacity to be pro-social. The sentence imposed must not be so severe as to impede or reverse the rehabilitative strides taken by Mr. Prasad over the last two and a half years.

[37] Both sides provided me with cases in support of their respective positions: R. v. Noorali, 2010 ONSC 3747, aff’d 2012 ONCA 589; R. v. Durrette, [2013] O.J. No. 4905 (S.C.); R. v. Vandyk, 2014 ONCJ 159; R. v. Brown, 2015 ONSC 2976; R. v. Ahmed, 2016 ONCA 831; R. v. Thomas, 2016 ONSC 7792; R. v. Jimale, [2016] O.J. No. 5032 (S.C.); R. v. Butters, 2017 ONCA 9; R. v. McAnuff, [2017] O.J. No. 5373 (S.C.); R. v. Conceicao, 2017 ONCJ 416; and R. v. Gabbidon, 2017 ONCJ 55.

[38] A review of the cases relied upon by counsel confirms that the range for possession of cocaine for the purpose of trafficking is between six months and two years less a day: Woolcock, at para. 15. The cases relied on also highlight that where an individual falls within the range will vary depending on the facts.

[39] Here, the amount of cocaine that Mr. Prasad possessed would place him towards the middle of the range. The fact that he has a prior conviction for the same offence pushes him towards the higher end of the range. At the same time, the insight that Mr. Prasad has gained, the pro-social tendencies he has shown during his almost 33 months on bail, his family support, his stable relationship, his remorse and his commitment to sobriety are factors that militate towards the lower end of the range.

[40] Looking at all of the factors, I find that the sentence proposed by the Crown does not give sufficient consideration to the principle of restraint or Mr. Prasad’s rehabilitative potential.

[41] On the other hand, I cannot accede to the defence request for a suspended sentence for two reasons. First, the position is premised on allocating nine months credit for the time spent on bail. It is clear that some credit should be given. As the Ontario Court of Appeal explained in R. v. Downes, [2006] O.J. No 555 (C.A.), at para. 37, stringent bail conditions, especially house arrest, represent an infringement on liberty and are a relevant mitigating factor. Thus, any time spent on bail under house arrest must be taken into consideration when determining the length of the sentence: see also R. v. E.B., 2013 ONCA 429, at para. 10; R. v. Dragos, 2012 ONCA 538, at para. 84; and R. v. R.O., 2015 ONCA 814, at para. 58. There is no set formula for determining the amount of credit to be given: R. v. Phromimadis, [2006] O.J. No. 3992 (C.A.). Mr. Prasad was on house arrest for nine months and 19 days. Thereafter, he was bound by an 11:00 p.m. curfew. While I have no doubt Mr. Prasad would have found the curfew constraining, however, in my view the credit sought is excessive. Given the evidence before me as to the effect of the bail conditions on Mr. Prasad, I find that the appropriate credit for the time spent on house arrest and curfew is approximately three months.

[42] Second, the suggested suspended sentence is premised on a sentence of nine months for the cocaine offence before taking into consideration the time on bail. In my view, however, such a sentence is inadequate to give voice to the pressing sentencing objectives of denunciation and deterrence. Given that, the circumstances of this case are similar to those discussed in the recent decision of R. v. Mohenu, 2019 ONCA 291, at para. 7, such that imposing a lengthy conditional sentence on the marijuana offence to offset an excessively lenient sentence on the cocaine offence would not be appropriate.

[43] In my view, balancing the aggravating and mitigating factors in this case, and considering the relevant sentencing principles and objectives, a fit and proportionate sentence before taking into consideration any time on bail is one of 14 months. In my view, three months credit for the time spent in pre-sentence custody and the time on house arrest and curfew is warranted. Taking that into consideration, the remaining global sentence is one of 11 months, which should be structured as follows:

• 11 months on the possession of cocaine for the purpose of trafficking;
• One month on the possession of marijuana for the purpose of trafficking, concurrent.

[44] Following that, I am placing Mr. Prasad on probation for a period of 12 months. The terms of probation are as follows:

• Keep the peace and be of good behaviour.
• Appear before the court when required to do so.
• Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
• Report in person to a probation officer within two days of your release from custody and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
• Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for substance abuse issues.
• You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

Ancillary Orders

[45] Possession of cocaine for the purpose of trafficking is an enumerated secondary offence. Pursuant to s. 487.051(3)(b) of the Criminal Code, I am satisfied that it is in the best interests of justice to make an order authorizing the taking of samples from Mr. Prasad for the purpose of DNA testing. In arriving at this conclusion, I have considered the nature and circumstances surrounding the offences, Mr. Prasad’s criminal record, and the minimal impact that this order will have on Mr. Prasad’s privacy and security of the person.

[46] A weapons prohibition pursuant to s. 109 of the Criminal Code also applies. Pursuant to s. 109, Mr. Prasad is prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life and any firearm (other than one that is prohibited or restricted), cross-bow, restricted weapon, ammunition and explosive substance for life.

Justice Heather McArthur

Released: May 17, 2019