Court File and Parties

Court File No.: Newmarket Date: 2013-12-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Huo Quaw Zheng

Reasons for Sentence

Heard: December 6, 2013 Delivered: December 6, 2013

Counsel:

• Mr. Jon Fuller for the Crown
• Ms. Eleanor Shaw, Amicus
• Mr. Huo Zheng, Self-represented

KENKEL J.:

Introduction

[1] Mr. Zheng went to the victim's home and left a phone number with his wife. He told her that if her husband didn't call back they should, "watch out". That was the first in an escalating series of acts in which Mr. Zheng attempted to induce the victim to pay him $54,000 through intimidation and threats. Mr. Zheng was convicted at trial of extortion contrary to s. 346(1.1)(b).

[2] The Crown seeks a one year custodial sentence. Mr. Zheng is not represented by counsel and given the unusual nature of the charge and the circumstances of the offence the court appointed Ms. Shaw as a friend of the court – amicus - to assist the court to identify relevant mitigating factors and to help review cases setting out the appropriate range of sentence.

Aggravating Factors

[3] The following circumstances aggravate sentence:

• The amount of money Mr. Zheng sought to extort
• His attendance at the victim's home including intimidating mischief to the victim's home s. 348.1
• The fact that he was acting with others both when he went to the residence and in a subsequent meeting
• The suggestion by Mr. Zheng through words and actions that he was associated with and working on behalf of organized crime
• The use of public intimidation tactics through spray painting symbols on the victim's house known in their culture to indicate threats by organized crime. Public symbols of intimidation impact not only the victim but other members of the community as well.
• The fact of a prior criminal record including prior custodial dispositions
• The impact on the complainants. Although they declined to provide a victim impact statement they did express to the officer-in-charge to be conveyed to the court their ongoing fear arising from this incident.

Mitigating Factors

[4] The following factors mitigate sentence:

• The victim did not make any payment to Mr. Zheng and suffered no financial loss.
• The fact that two years passed after the offence with Mr. Zheng on bail and there's been no further intimidation of the victim by any party. While Mr. Zheng was charged with other offences during this period, they are unrelated.
• Time served of 79 days – 29 after arrest until bail was set and 50 days since conviction when that release was cancelled. (Bail was cancelled as the accused was by then detained on further new charges in Toronto)
• The fact that the prior record is unrelated with no convictions for violence

[5] Although not a mitigating factor, the absence of actual violence or the use of weapons is a circumstance which distinguishes this case from others where that aggravating factor is present.

Analysis

[6] The Crown provided the following cases:

• R. v. Gillespie, [1990] NWTJ No. 146 (SC) where a demand for $10,000 from another person involved in criminal activity followed by arrest shortly thereafter led to a 15 month sentence.
• R. v. DKP, [1991] BCJ No. 2998 (CA) a 15 month sentence was imposed on appeal for an appellant sentenced as a first offender who had attempted to obtain $4000 by threatening to produce nude photos of a former girlfriend.
• R. v. Windrum, [1992] SJ No. 143 (CA) one year imposed on appeal where the respondent took advantage of a position of friendship to inflict fear and anxiety for financial benefit over a lengthy period of time
• R. v. Coates, [2003] OJ No. 946 (CA) where 4 years was imposed for an attempt to extort $70,000 with $5000 obtained. The appellant was associated with organized crime and referred to that association to intimidate the victim. There was no actual violence.

[7] Ms. Shaw has provided the following further cases:

• R. v. Pitcher, [1975] BCJ No. 200 (CA) one year imposed on appeal where the accused threatened to kill the complainant's son unless $10,000 was paid. The accused later confessed and apologized to the complainant.
• R. v. Shen, [1995] OJ No. 2992 (Gen. Div.) 18 months and 4 year sentences imposed at trial of two accuseds involved with loan shark debt collection of $10,000 with violence and threats via firearms.
• R. v. Playford, [2003] OJ No. 954 (CA) sentenced reduced to 2 years following 10 months pre-trial custody where the complainant was assaulted and threatened with death in relation to a debt owed.
• R. v. LeClair, [2005] OJ No. 3354 (CJ) accused with no record, but good family and employment history pled guilty and was sentenced to 15 months for extortion with reference to organized crime.
• R. v. Burns, 2008 ONCA 6 90 days upheld on appeal for police officer who threatened a person to induce them to lie in court.
• R. v. Skwira, [2010] BCJ No. 544 (SC) 2 years less one day conditional sentence imposed on joint submission following a guilty plea in a case involving collection of an actual business debt where the victim's car was taken.

[8] Upon conviction, the Crown was asked to provide an initial position so the unrepresented accused would have some indication of the sentence the Crown was seeking and the court could consider whether the assistance of amicus counsel might be required.

[9] The cases submitted by both counsel show that a sentence for extortion in these circumstances following conviction at trial typically would exceed 12 months, but the Crown fairly concedes their initial position is within the range albeit at the low end and they are content to maintain that position.

[10] The cases provided emphasize that extortion is a serious offence that has a significant impact on the victims and the community at large. In R. v. Shen Justice Wren noted the vulnerability of immigrant communities to extortion offences and the difficulties in the detection and prosecution of those offences.

[11] Mr. Zheng has not been employed since 2008. Although he refers to medical issues as having kept him from employment, his 2009 convictions related to drug trafficking and his involvement in this matter show that he's not prevented from active work, he's just chosen criminal activity over regular employment. There's no evidence of insight into the offence. Past custody served has not deterred him from further criminal acts.

[12] General deterrence and denunciation are paramount in this case. There is also a need to specifically deter Mr. Zheng from committing further offences. The sentence imposed must also provide for the safety of the victims and provide supervision that will encourage rehabilitation.

Conclusion

[13] I find that a sentence of 12 months in jail is not unfit and is the minimum sentence that would meet the purpose and principles of sentence discussed above in the circumstances of this case.

[14] Mr. Zheng will be sentenced to one year in custody less credit for 79 days time served. I find that any consideration of further enhanced credit would render the sentence unfit.

[15] The custodial sentence will be followed by a period of probation for 3 years on the following conditions:

• Keep the peace and be of good behaviour
• Report to probation as required
• Attend court as required
• Not to possess any weapons as defined by the Criminal Code
• Not to have any contact directly or indirectly with the complainant or any members of his immediate family
• Not to be within 150 metres of any place of residence, education or employment of the complainant or any members of his immediate family
• Reside at an address approved of by probation
• Seek and maintain gainful employment

[16] In addition there will be a s. 109 order prohibiting Mr. Zheng from possessing firearms or related items set out under that section for life. I also find it appropriate to order that Mr. Zheng provide a sample of his DNA for databank registration as this is a primary designated offence and such an order is not "grossly disproportionate" to the circumstances of the offence or the offender.

Delivered 6 December, 2013:

Justice Joseph F. Kenkel