CITATION: R. v. Daya, 2007 ONCA 693
DATE: 20071011
DOCKET: C46488
COURT OF APPEAL FOR ONTARIO
MOLDAVER, SHARPE and LaFORME JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
HUSSEIN DAYA
Respondent
Frank Au for the appellant
Bruce McChesney for the respondent
Heard: September 24, 2007
On appeal from the sentence imposed by Justice Hugh Atwood of the Ontario Court of Justice dated December 18, 2006.
MOLDAVER and LaFORME JJ.A.:
[1] The respondent pled guilty to two counts of trafficking in cocaine, two counts of trafficking in ecastasy and possession of a loaded .38 calibre handgun. He received a sentence of ten months imprisonment (which included a twenty-four month reduction for time spent in pre-trial custody) and three years probation. The Crown appeals from that sentence.
Background Facts
[2] Over the course of approximately four months (from September 28, 2005 to January 30, 2006) the respondent sold almost two kilograms of cocaine and twenty-six hundred ecstasy tabs to two undercover police officers. He was arrested on January 30, 2006, immediately after he had delivered one kilogram of cocaine to the officers.
[3] Upon his arrest, the officers searched the respondent and his car and retrieved $8,000 in cash along with a loaded .38 calibre revolver. A search of the respondent’s apartment revealed an additional $11,070 in cash, 1.149 kilograms of marijuana, sixty-six tabs of ecstasy, twenty-three rounds of .38 calibre ammunition and a debt list and baggies. In total, the undercover officers paid the respondent $74,750 for the various drugs they purchased from him.
[4] The respondent was twenty-two years old at the time of the offences and twenty-four at the time of sentencing. He had a minor unrelated criminal record.
Mitigating Factors
[5] By way of mitigation, the respondent was relatively young and he expressed remorse for his criminal conduct. He comes from a good family and he enjoys the continued support of his family, as well as many respectable members of the community. By pleading guilty, he spared the administration of justice the time and expense of a trial. The respondent is an intelligent young man. While carrying on his drug trade, he was attending George Brown College. He has now resumed his studies there, having completed the ten-month custodial sentence imposed by the trial judge. He is presently enrolled in the Business Administration – Financial Management Program. While in custody, he successfully completed a course designed to assist his reintegration into society. He also provided limited assistance to the police in respect of other criminal matters.
[6] Given the respondent’s background and history, his appreciation of the gravity and seriousness of his crimes and his willingness to change, it appears that his prospects for rehabilitation are good. His positive attitude and potential for rehabilitation are confirmed in both a positive pre-sentence report and a psychological report prepared for the sentencing judge and filed at the sentence hearing. Among other things, the psychological report indicates that the respondent does not exhibit the behavioural traits and value systems often observed in career offenders.
Aggravating Factors
[7] By way of aggravation, as indicated, the respondent has a criminal record, albeit for relatively minor and unrelated offences. More troublesome is the fact that he was on bail for production of marijuana when he committed the present drug and weapon offences.
[8] Problematic as well is the fact that the respondent’s trafficking was motivated almost entirely by greed. Indeed, in the course of his trafficking activities (which, as noted below, extended over a two-year period), the respondent enrolled in police college but he chose not to follow that career path because he was “making too much money dealing”. In fairness, according to the psychological report, the respondent’s trafficking also fulfilled a need on his part to form close relationships with others, something he apparently achieved with his drug clientele.
[9] By way of further aggravation, while the present offences spanned a period of approximately four months, as mentioned, the respondent’s drug activities, on his own admission, lasted the better part of two years. He boasted to the undercover officers that he could get them any drugs they needed in whatever supply they wanted. His ability to provide them with one kilogram of cocaine on the day of his arrest demonstrates that the respondent’s claim was more than mere bravado. It also indicates that he was at least a moderately high participant in the distribution chain. Of concern as well is the fact that in his dealings with the police, the respondent offered to equip them with guns. He also indicated an interest in participating with them in a credit card scam.
The Sentence Imposed by the Trial Judge
[10] Against that backdrop, the trial judge felt that a global sentence of five years (sixty months) was warranted – four years for the drug offences and one year consecutive (the minimum sentence) for the gun offence.
[11] The trial judge ruled that, on account of his guilty plea, the respondent was “entitled to a reduction, in my view, of a substantial amount, perhaps 25 percent, perhaps 33 and a third percent of what would be the appropriate sentence had he elected to got to trial and had he been found guilty…” From the total of sixty months, the trial judge subtracted twenty months (a one-third reduction) for the respondent’s guilty plea. He then subtracted a further twenty-four months for the ten months and nineteen days that the respondent had spent in pre-trial custody. Finally, he subtracted an additional six months for the limited assistance the respondent had offered to the police following his arrest. In the result, the trial judge arrived at a sentence of ten months imprisonment. In addition, he placed the respondent on probation for three years.
[12] The Crown appeals from that sentence. On behalf of the Crown, Mr. Au stated that he does not take issue with the twenty-four month reduction for pre-trial custody, nor does he object to the six-month reduction for the respondent’s limited assistance to the police. He does, however, object to the one-third reduction (twenty months) from the global sentence of five years accorded to the respondent on account of his guilty plea. He also submits that the global sentence (ultimately determined to be three years and four months after deducting twenty months for the guilty plea) was woefully inadequate and that it failed to reflect the gravity and seriousness of the respondent’s crimes and society’s interest in repudiating conduct of this nature. The trial judge, he maintained, failed to give adequate consideration to the overriding principles of general and specific deterrence and the need for denunciation, particularly in respect of the weapon offence, in arriving at the impugned sentence.
Analysis
[13] In our view, taking the respondent’s guilty plea into account, a global sentence of five years for this offender for these offences, while extremely low, might not have warranted this court’s intervention. However, by applying “a twenty five to thirty three and a third percent formula” to reduce the global sentence by a third on account of the guilty plea, the trial judge erred in principle and arrived at a global sentence (three years and four months) that was manifestly inadequate.
[14] In our view, the trial judge erred in two ways.
[15] First, the credit to be given for a guilty plea cannot be reduced to any formula, but “will vary with the circumstances of each case”: see R. v. Faulds (1994) O.R. (3d) 13 (C.A.) at para. 14. The circumstances of this case were that the appellant was caught red-handed, he had no defence to the charges and a trial would simply have postponed the inevitable. By pleading guilty, the respondent spared the administration of justice some time and expense, and for that, according to R. v. Faulds, he was entitled to some credit. In our view, however, a twenty month discount for the guilty plea was excessive.
[16] Second, by using the guilty plea to reduce the global sentence from five years to three years and four months, the trial judge effectively determined that a sentence of two years and four months was a fit sentence for a mid-level drug dealer who, over the course of four months, had sold almost two kilograms of cocaine and twenty-six hundred tabs of ecstasy for commercial gain. The “two years and four months” figure derives from the fact that the gun offence was punishable by a mandatory minimum consecutive sentence of one year.
[17] Viewed that way, the inadequacy of the “two years and four months” attributable to the drug trafficking offences is brought into sharp focus. It falls well short of reflecting the gravity and seriousness of the respondent’s crimes, as evidenced by this court’s recent decision in R. v. Bajada (2003), 2003 ONCA 15687, 173 C.C.C. (3d) 255, where, at 260, Weiler J.A. observed:
It would appear that sentences of five to five and one-half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record. [Authorities omitted].
By any standard, leaving aside the large amount of ecstasy and the dangers posed by it, the respondent trafficked in a substantial amount of cocaine.
[18] This court and the Supreme Court of Canada have time and again elaborated on the perils of cocaine and the immeasurable harm it causes to society. (See for example, R. v. Cunningham (1996), 1996 ONCA 1311, 104 C.C.C. (3d) 542 at 547 (Ont. C.A.); R. v. Hamilton (2004), 2004 ONCA 5549, 186 C.C.C. (3d) 129 at para. 104 (Ont. C.A.); Smith v. The Queen (1987), 1987 SCC 64, 34 C.C.C. (3d) 97 at 123 (S.C.C.) and more generally, Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 SCC 778, [1998] 1 S.C.R. 982 at paras. 89-91 per Cory J. in dissent on another issue.) In combination with a loaded gun, the situation here represented one of extreme danger.
[19] In the last analysis, taking into account the time spent by the respondent in pre-trial custody and the special reduction for the limited assistance he offered to the police, the respondent should almost certainly have received a penitentiary sentence. The sentence imposed by the trial judge was manifestly inadequate and not within the appropriate range of sentences for crimes of this nature.
[20] All of that said, the Crown has not pressed for the respondent’s reincarceration. In our view, given his prospects for rehabilitation and the fact that he has resumed his schooling and is doing well, we believe that the interests of justice would not be served by returning the respondent to jail at this time.
[21] Accordingly, while leave to appeal is granted, the appeal from sentence is dismissed.
Signed: “M.J. Moldaver J.A.”
“H.S. LaForme J.A.”
SHARPE J.A. (Concurring):
[22] I agree with the result reached by my colleagues, but prefer to state my own reasons for reaching that conclusion.
[23] I do not accept the Crown’s submission that we should dramatically increase the sentence imposed to seven and one half years, on top of the two and one half year credits granted by the trial judge. The weakness of this submission is demonstrated by the fact that to support it, the Crown was driven to rely on importing cases, a proposition flatly rejected by this court in R. v. Bajada (2003), 2003 ONCA 15687, 173 C.C.C. (3d) 255. These were serious offences but in my view, given the appellant’s age and excellent prospects for rehabilitation, a global sentence of five years was appropriate.
[24] I agree with paragraph 15 of my colleagues’ reasons that the trial judge erred in principle by applying a twenty five to thirty three and a third percent formula to reduce the global sentence by a third on account of the guilty plea. In my view, however, that was the only error made by the trial judge. As I see nothing wrong with the global sentence imposed by the trial judge, I do not agree with my colleagues that the trial judge erred in two ways.
[25] The Crown does not quarrel with the credits given for pre-trial custody and for the assistance the appellant rendered to the police. As I would not interfere with the global sentence of five years, this leaves a period something less than twenty months. The appellant has already served the sentence that was imposed and has now returned to his studies. I agree that it would not be in the interests of justice to return him to jail at this point and therefore would dismiss the Crown’s appeal against sentence.
Signed: “Robert J. Sharpe J.A.”
RELEASED: “MJM” October 11, 2007