ONTARIO SUPERIOR COURT OF JUSTICE

Newmarket COURT FILE NO.: 09-09098
DATE: 2012-08-03

BETWEEN :

Her Majesty the Queen

— and —

Brent Nacu

COUNSEL:

Rob DeChellis, for the Crown Attorney

Howard Cohen for Brent Nacu, Defendant

HEARD: June 29, 2012

Sosna J. (Oral Judgment given August 3, 2012)

REASONS FOR sentence

[ 1 ] On March 5, 2012 his trial date, Brent Nacu pled guilty to three counts of possession of firearms while bound by a lifetime weapons prohibition order, contrary to section 117.01 (1) of the Criminal Code . He was remanded out of custody for sentence. A pre-sentence report was not ordered.

[ 2 ] On the sentencing date the defence submitted that a conditional sentence of 12 months and a period of probation be imposed. The Crown opposed the conditional sentence and sought a jail sentence of three years less credit for pre-trial custody and further credit for the 42 months he was on bail pending resolution of his charges.

NARRATIVE HISTORY

[ 3 ] Brent Nacu is single and 35 years of age. He earns approximately $120,000 annually, presently employed as the business development manager for L Squared Networks.

[ 4 ] His previous criminal record is as follows. On June 16, 2000 he was convicted of arson causing damage to property and received a suspended sentence and probation for two years. He testified that the arson involved him and a co-accused setting fire to a motor vehicle which had been earlier occupied by individuals who had threatened them. Other than property damage there were no injuries. At the time the motor vehicle was parked on a public street and unoccupied.

[ 5 ] On May 8, 2001 Nacu was convicted of breach of probation and received a sentence of six days reflecting time served in pre-trial custody. No details were provided regarding the nature of the breach.

[ 6 ] On June 24, 2002 Nacu pled guilty under the Controlled Drugs and Substances Act to importing a schedule 3 substance for which he received a six-month conditional sentence and possession of a schedule 3 substance for the purposes of trafficking for which he received a consecutive 90 day intermittent sentence in addition to 66 days of pre-trial custody. Both convictions involved the intended distribution of 3500 ecstasy pills with the accused expecting a profit of $10-$15,000. Additionally Nacu was prohibited from having possession of weapons for life pursuant to section 109 the Criminal Code . It is the breach of that prohibition order that led to the present charges and his pleas of guilty.

[ 7 ] In pleading guilty Nacu admitted the following facts. On January 26, 2009 a woman in Markham called the police when she heard a rattling at her door and observed the accused, a stranger, standing in her driveway. Nacu’s car was parked in her driveway. He was arrested at the scene when his boots matched footprints found at an earlier break and enter on January 19 in Markham. A search warrant was executed on the day of his arrest at his residence at 17 Barberry Street, unit 1314 in Toronto. Located in the closet were two 12 gauge shotguns, a Phoenix Arms Raven Model handgun, 200 rounds of ammunition, a magazine for a firearm, and a Ruger piece for a firearm. Further investigation confirmed that the two shotguns, the firearm pieces, and some of the ammunition were stolen during an earlier third break and enter on January 8, 2009. These items have since been returned to their rightful owner.

[ 8 ] After his arrest Nacu remained in custody until February 24, 2009 when he was released on a recognizance of bail in the amount of $60,000, without deposit. Although the original bail release called for strict house arrest, the bail was amended on June 11, 2009 vacating the strict house arrest term and replacing it with conditions allowing him freedom of movement in the community without direct surety supervision. Since being released from custody, Nacu has not breached any of bail terms.

[ 9 ] The defence seeks a conditional sentence of twelve months concurrent on all three counts to be followed by a period of probation. In seeking the conditional sentence, the defence argues that by pleading guilty Nacu has accepted responsibility for his actions; that while on bail release in excess of three years he has rehabilitated himself, and if granted, a conditional sentence would not pose a threat to the community.

[ 10 ] The defence points out that shortly after his bail release Nacu continued his employment with Milestone Restaurant. Thereafter he worked as an accounts manager at 411.ca. Later he was employed as the sous chef in Milton with the Grand Chalet Banquet Hall and Restaurant. Recently he accepted a managerial position with L Squared Networks, a networking company, providing services to private and government agencies. Nacu’s present salary is $120,000 a year.

[ 11 ] In addition to being continuously employed and advancing his career path while on bail release Nacu has taken charge of his own rehabilitation by completing a government sponsored domestic assault program called PAR; completing a self-help self-improvement program with Landmark Education; and by becoming an active member in MDI (Men’s Division International) a growth, development, and leadership program for men. Gary Farb, a commercial litigator and mediator with 33 years experience and founder of MDI, testified that he has seen a transformation in Nacu’s life values and goals since joining MDI. Additionally Farb testified, as did Nacu, that the untimely death of Nacu’s sister, his only sibling, in a bike accident in 2011 also had a dramatic and sobering impact on him. In that regard Nacu was instrumental in spearheading a charity based memorial bike ride for her in Ottawa where she lived, and establishing a scholarship in her name at the University of Ottawa where she had studied.

[ 12 ] The defence submits that since his release on bail, Nacu has made legitimate and concrete efforts in rehabilitating himself. The defence argues Nacu has been consistently employed since his release; has not breached any of his bail terms; and has taken up various counselling programs and initiatives without counselling being mandated as a condition of bail. As a result he has matured, gaining new found insight through these programs while at the same time being able to meet specific and measurable goals which benefit not only himself but society at large. The defence submits that Nacu is not the same offender he was three years ago. Today, due to his efforts the defence submits that Nacu is an exceptional offender who has transformed himself into a responsible and well grounded citizen. The defence argues in these circumstances Nacu does not pose a threat to the community. Given these factors the defence submits that a conditional sentence would meet the sentencing requirements as provided in sections 718 to 718.2 of the Criminal Code .

[ 13 ] The Crown submits that the overriding factors to be considered in the present matter are general and specific deterrence despite Nacu’s purported efforts at rehabilitation. The Crown argues that Nacu’s possession of two rifles, a handgun, it being a restricted weapon, and 200 rounds of ammunition all recently stolen not only endangered the community, but also was a flagrant breach of the lifetime weapons prohibition order imposed on him in 2002 after being convicted of serious offences of importing and possession for the purposes of trafficking of large amounts of ecstasy.

[ 14 ] The Crown seeks a three-year jail sentence with credit given for 30 days of pre-trial custody on a two-for-one basis. In recognition of the 42 months on bail awaiting his trial date, the Crown submits that Nacu be given a further credit of 10 months. In opposing the conditional sentence, the Crown submits that Nacu be sentenced to two years less one day in addition to the suggested credits of 12 months. The Crown also seeks a probationary term of three years and a forfeiture order for the property seized after the accused’s arrest.

[ 15 ] For the following reasons, despite Nacu’s efforts at rehabilitation which I accept and hope will continue, it would be an error in principle to impose a conditional sentence of any length including the 12 month range sought by the defence.

[ 16 ] The statutory requirements to be met in granting a conditional sentence are that the offender must not have been convicted of an offence or offences that are not punishable by a minimum term of imprisonment, the court impose a term of imprisonment of less than two years, and that the safety of the community would not be endangered by the offender serving a sentence in the community. In providing further guidance as to other factors to be considered, the Supreme Court of Canada in R. v Proulx (2000), 14 0CCC (3d) 449 held amongst other things the Court assess whether the offender has previously complied with court orders, and whether the offender has a criminal record that suggests the offender will not abide by the conditional sentence. ( R. v Jones 2005 22449 (ON CA) , 198 CCC (3d) 519 Ont. C.A. paragraphs 13-16). All these criteria are relevant in the present matter.

[ 17 ] In Jones supra, the accused pleaded guilty to possession of a weapons dangerous and possessing a firearm while subject to a weapons prohibition order. When arrested he was suicidal and in possession of a 12 gauge shot gun and shells. Eight years earlier he had been convicted of sexual assault with a weapon and received a six-month conditional sentence and a 10 year weapons prohibition order. Rather than complying with that order, the accused took possession of a 12 gauge shot gun and kept it.

[ 18 ] In sentencing Jones on the weapons offences to a conditional sentence of two years less one day and probation for three years, the sentencing judge stressed only the issue of rehabilitation being influenced primarily if not exclusively by two medical reports that led him to conclude “this man needed help not punishment.” He made no mention of any other sentencing objectives particularly specific and general deterrence also set out in Section 718 of the Criminal Code . The Crown appealed the sentence seeking a custodial penalty of six to seven months.

[ 19 ] By the time the appeal was heard the majority of the Court concluded that it would be counterproductive to sentence Jones to custody since it would run the risk of frustrating positive steps Jones had taken towards his rehabilitation in the interim. Nevertheless the Court found that the conditional sentence was an error, concluding that the sentencing judge by focusing almost entirely on the respondent’s prospects for rehabilitation, failed to adequately consider the principles of denunciation and general and specific deterrence.

[ 20 ] Although the surrounding facts in Jones supra were potentially more dangerous than in the case at bar, observations made by the Court of Appeal regarding the need and purpose of weapons prohibition orders are equally applicable. At paragraph 19 the Court stated:

The primary function of a prohibition order is the protection of the public. Parliament, in providing for prohibition orders, recognized that the community is placed at danger by the unlawful possession of firearms. The very presence of guns in the community poses a risk that they may somehow come to be used. The mere possession of guns by persons who have already committed crimes that provide the basis for prohibition orders constitutes a grave danger to the community.

[ 21 ] In Jones supra the Court found that his possession of the shotgun did not stem from his mental health issues during his threatened suicide and armed standoff with the police when arrested. The Court found that when Jones acquired possession of the weapon several years earlier, he understood full well that he was prohibited by court order from having it.

[ 22 ] In the present matter Nacu testified that he also knew full well that when he took possession of the two shot guns, the restricted hand gun and the ammunition, his possession of that property clearly breached the terms of a weapons prohibition order in effect for the rest of his life. The only explanation he provided for that possession was that the decision made by him “was an error in judgment.”

[ 23 ] I find the importance of compliance with weapons prohibition orders cannot be understated or qualified by explaining away that possession as a mere “error in judgment.” As held in R. v Grant [2005] O.J. No.4599 (Ont. SCJ) at paragraph 37 :

In terms of general deterrence, if weapons prohibitions are to have any meaning and effect, the violation of such orders must be taken seriously. It cannot be left in any doubt to those persons who are subject to such orders that if they choose to violate those orders, that choice will attract serious consequences.

[ 24 ] Nacu’s criminal record is a relevant factor in determining whether a conditional sentence is to be imposed and if granted, whether it would it endanger the safety of the community. As already re-viewed, in 2001, Nacu was convicted of breach of probation, a court order and sentenced to six days in custody, time served. One year later in 2002, Nacu was sentenced to 90 days intermittent for possession of narcotics for the purpose of trafficking in addition to time served of 66 days. This was followed by a six-month conditional sentence for a conviction of importing drugs. In other words, Nacu was incarcerated a second time for a longer period, and once that jail sentence was completed, Nacu served the additional sentence of six months in the community.

[ 25 ] In structuring this sentence, the court also placed Nacu on a lifetime weapons prohibition order. Again, as noted in Jones supra at paragraphs 20 :

A prohibition order works to the advantage of the offender when being sentenced on the conviction that gives rise to the order. By addressing the protection of society, the making of such an order allows the court to pay greater heed to the rehabilitation of the offender, and reduce the weight on the need to separate the offender from society.

[ 26 ] In 2002 having been placed on a lifetime weapons prohibiton order and sentenced to a carefully crafted disposition which incorporated both a conditional sentence and an intermittent jail term for offences which would ordinarily attract more significant sanction, on today’s date it cannot be said that the same principles apply. Regarding a weapons prohibition order as noted in Jones supra at paragraph 21 :

The relative weighting of the objectives of sentencing is different when the offender is being sentenced for breach of the prohibition order. On this occasion, the offender has demonstrated an unwillingness to be governed by court orders and has not responded to society's efforts to rehabilitate him. It has become apparent that society cannot be protected by a prohibition order, and so the objective of separating the offender from society to protect the community acquires greater weight.

[ 27 ] Sentencing has been described to be an art rather than a science. What a sentencing judge must do is to balance various principles and decide which ones govern a particular case. R. v Stephens [2009] O.J. No.6102 at paragraph 29 . Pursuant to the sentencing guidelines as set out Section 718 of the Criminal Code , in addition to the prospect of rehabilitation strongly advanced by the defence, I must also give full consideration to other factors which include specific and general deterrence and where necessary separation of the offender from society.

[ 28 ] I find the imposition of a conditional sentence premised on the positive prospect of the accused’s rehabilitation would fail to adequately address the other principles of sentencing, namely denunciation and deterrence. Nacu admitted he was fully aware that he was prohibited by court order from possessing any weapons for life. The weapons and ammunition found in his home were recently stolen. Nacu testified he had no personal interest or need in having those weapons. However, there are others in our community who would have a keen interest and need to come into illegal possession of weapons thereby putting the community at risk. In these circumstances it cannot be found that Nacu’s possession of the recently stolen guns and ammunition was naïve or benign and anything less than deliberate and potentially dangerous to the community.

[ 29 ] Weapons prohibition orders are imposed for no other reason but to protect the community at large. On all the evidence, despite Nacu’s later legitimate and earnest efforts at rehabilitation, only a period of custody and not a conditional sentence will signal to him and all persons subject to such orders that they must be obeyed and their breaches taken seriously.

[ 30 ] Accordingly, in addition to credit of 60 days for pre-trial custody and credit of 10 months for the 42 months on bail release, I sentence Nacu to an additional custodial period of 15 months concurrent on all three counts, which as a global penalty is the equivalent of a 27 month penitentiary sentence. Respectfully, given that Nacu pled guilty saving the community the expense of a trial and accepting that his prospects for rehabilitation are positive, the global sentence of three years submitted by the Crown is too high.

[ 31 ] Although I agree with the Crown that after finishing his sentence Nacu be placed on probation, the length of that probation being the maximum period of three years as sought by the Crown, is also too high. Again recognizing and accepting his efforts at rehabilitation, maximum long term and close supervision of the accused by probation services is not necessary.

[ 32 ] Nacu is 35 years of age. He is returning to jail for a third time. Despite the seriousness of the present convictions, while on bail for an extended period, he has proven to himself and to others that he is more than capable of living in the community as a productive citizen. Our already heavily burdened probation services are better utilized to assist those offenders who require direction and hands on rehabilitation. I do not find that Nacu is one of those offenders.

[ 33 ] Therefore, I place Nacu on probation for 18 months. In addition to the statutory term that he “be of good behaviour and keep the peace”, the only other term of the probation order is that he is to “report to his probation officer immediately after his release and thereafter only as often as is required by his probation officer.”

[ 34 ] Lastly as requested by the Crown, an order of forfeiture is to go regarding the property seized by the police at Nacu’s apartment on January 26, 2009.

The Honourable Mr. Justice A. Sosna

DATE RELEASED (Orally): August 3, 2012