COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Wong, 2012 ONCA 767
DATE: 20121109
DOCKET: C53130
O’Connor A.C.J.O., MacPherson and Cronk JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Sai Wong
Appellant
Edward F. Hung, for the appellant
Alex Hrybinsky, for the respondent
Heard and released orally: November 6, 2012
On appeal from the convictions entered on December 6, 2010 and December 22, 2010 and the sentences imposed on January 10, 2011 by Justice Joseph F. Kenkel of the Ontario Court of Justice, sitting without a jury.
By the Court:
I. Introduction
[1] The appellant, Andrew Sai Wong, was convicted of ten guns and drugs-related offences as follows: (1) trafficking in a narcotic (ketamine); (2) possession of a narcotic (ketamine); (3) four counts of possession of a narcotic (cannibis marijuana, ketamine and cocaine) for the purpose of trafficking; (4) careless storage of a firearm; (5) possession of a firearm without a licence; (6) possession of a firearm knowing its possession is unauthorized; and (7) possession of a loaded firearm without authorization or registration certificate. The appellant was also convicted, following a guilty plea, of failing to comply with his recognizance of bail by being in possession of a cellphone. His convictions on one count of possession of ketamine for the purpose of trafficking and possession of a firearm without a licence were stayed on the basis of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729.
[2] The appellant was sentenced to a global sentence of three years’ imprisonment, concurrent, on the guns and drugs-related offences (apart from those stayed), plus 30 days’ imprisonment, concurrent, on the breach of recognizance charge, together with ancillary orders.
[3] On appeal to this court, the appellant’s conviction appeal with respect to the possession of a loaded firearm charge (s. 95(1) of the Criminal Code) was allowed. In all other respects, his conviction appeal was dismissed: R. v. Wong, 2012 ONCA 432.
[4] In light of his acquittal on appeal on the s. 95(1) charge, the appellant argues on this sentence appeal that his global sentence of three years’ imprisonment is unfit and excessive and that it should be set aside and a conditional sentence imposed. He submits that a conditional sentence is appropriate given his personal circumstances and prospects and because, absent the s. 95(1) conviction, he would have received a sentence of less than two years’ imprisonment on the guns and drugs-related charges of which he was convicted. He also argues that the trial judge erred in imposing a custodial sentence of 30 days on the breach of recognizance charge given his lack of a criminal record, the lack of aggravating factors in the commission of this offence and the time served by him in pretrial custody. He submits that the sentence imposed for this offence should be reduced to time served.
II. Global Sentence of Three Years’ Imprisonment – Guns and Drugs Offences
[5] At the time of the appellant’s sentencing, a conviction for possession of a loaded firearm contrary to s. 95(1) of the Code was subject to a three-year mandatory minimum term of imprisonment. The reasons of the sentencing judge indicate the overall length of the global sentence that he imposed was determined by the mandatory minimum sentence for this firearms charge and that the sentences on all other guns and drugs counts were made concurrent to conform with the imposition of this minimum sentence.
[6] The parties accept, and we agree, that as the s. 95(1) conviction was set aside on appeal, deference to the sentence judge’s decision does not apply and we must fashion a fit sentence in all the circumstances.
[7] The appellant maintains that he is a suitable candidate for a conditional sentence and the sentence imposed should be varied accordingly. He points out that he was 23 years of age at the time of the offence and was under house arrest while on bail pending trial for about one and one-half years. He argues that his drug trafficking was of short duration (two to three days), he is not a danger to society and, but for his original conviction on the s. 95(1) weapons offence, a sentence of less than two years’ imprisonment would have been imposed.
[8] Notwithstanding the appellant’s acquittal on appeal on the s. 95(1) offence, we are of the view that a global sentence of three years’ imprisonment on the remaining drugs and guns-related offences is fit and appropriate in the particular circumstances of this case.
[9] The evidence at trial established that the appellant was engaged in the business of drug trafficking for commercial purposes. He was in possession of a sawed-off .22 calibre shotgun and stored ammunition near the gun in his bedroom. The trial judge found that the shotgun was being kept by the appellant as a tool of the drug trade, a finding borne out by the sawed-off condition of the gun, reflecting an intention to conceal it.
[10] The appellant’s firearms offences are serious. Moreover, when the appellant’s bedroom was searched, the police also discovered 35.8 grams of ketamine, four grams of cocaine, a mix of Canadian and United States currency totalling about $2,000 Canadian, and a set of scales. This too is serious.
[11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fuelled by this combination is now well recognized.
[12] These offences called out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, 2005 CanLII 30044 (ON CA), [2005] O.J. No. 3532.
[13] The combination of drugs and guns is particularly concerning. This combination is a serious aggravating factor on sentencing. The sentencing judge’s reasons note “the real tragedy that the combination of drugs and firearms has caused in the Greater Toronto Area, including York Region”.
[14] We recognize that the appellant was a first offender, that he has strong support from his family and that he wishes to pursue his career and educational plans. That said, he was not a particularly youthful offender (24 years of age at the time of sentencing) and, on this record, the terms of his house arrest while on bail pending trial were not particularly strict. Those terms permitted the appellant to attend work in the company of one of his parents or his brother. That is not strict house arrest.
[15] In all these circumstances, we are of the view that the global sentence of three years’ imprisonment remains appropriate as of the date of sentencing, January 10, 2011.
III. Sentence of 30 Days’ Imprisonment – Breach of Recognizance
[16] The sentencing judge, as we have said, also imposed a sentence of 30 days’ imprisonment, concurrent, for the appellant’s breach of his recognizance. The term at issue, a prohibition against possession by the appellant of a cellphone, was designed to impede his involvement in the drug trade. We see no error in principle in the sentence imposed for the breach of this term nor is the sentence demonstrably unfit.
IV. Disposition
[17] Accordingly, the sentence appeal is dismissed.
RELEASED:
“NOV -9 2012” “D. O’Connor A.C.J.O.”
“DOC” “J.C. MacPherson J.A.”
“E.A. Cronk J.A.”