ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-664 (L’Orignal)
DATE: 2012/03/06

BETWEEN:

HER MAJESTY THE QUEEN – and – LAM DINH HOANG

Robert Julien, for the Federal Crown
John Hale, for the Accused

SUBMISSIONS HEARD: January 4, 2012

REASONS FOR SENTENCE

R. Smith J.

Circumstances of Offences

[1] Mr. Hoang was convicted of possession of 29 pounds of marijuana for the purpose of trafficking. The marijuana was found in the trunk of his vehicle when his vehicle was stopped on Highway 417.

Offender’s Circumstances

[2] The offender is now 38 years old and is the single parent of three children aged 6, 11 and 15 years. His wife died tragically in a motorcycle accident in Vietnam four and one half years ago. He is working on a part‑time basis at a restaurant. He is unable to work full‑time due to his child care responsibilities. He states that his motive for committing the offence was to obtain money to assist him to pay for medical care for his daughter’s eye injury.

Positions

[3] The defence seeks a conditional sentence of 12-15 months plus a period of probation. He submits that the principles of deterrence and denunciation would be adequately met by a conditional sentence. In the alternative, he submits that a period of 90 days in jail to be served intermittently to be followed by probation.

[4] The Crown seeks a term of imprisonment of 12‑15 months as a minimum sentence based on the fact that the accused is a repeat offender for narcotic related offences and has previously received a 20 month conditional sentence in 1999. The amount of marijuana was substantial namely, 26 pounds with a value as agreed to by counsel of approximately $100,000 (at $10 per gram).

Mitigating Factors

[5] The mitigating factors are as follows:

(a) he is 38 years of age;

(b) he has not committed any further offences since 1995, approximately 13 years before this offence;

(c) he has not breached any term of bail during 20 months and has attended at all court appearances;

(d) he is the sole parent of three children aged 6, 11 and 15 as his wife died four and one half years ago;

(e) the PSR indicates that while he does not show remorse, he would likely comply with conditions if released into the community;

(f) his reason for committing this offence was to get money for medical treatment for his daughter’s eye injury; and

(g) he was a courier and was to receive $1,200 for transporting the marijuana from Montréal to Ottawa.

Aggravating Factors

[6] The aggravating factors are as follows:

(a) he is a repeat offender as he has previous convictions for possession for the purposes of trafficking, two convictions in 1996 and a further conviction in 1999;

(b) he has already received a 20 month conditional sentence in 1999 and yet has not been deterred from committing similar offences; and

(c) the amount of marijuana in his possession was substantial, namely 26 pounds with a substantial value of approximately $100,000.

Principles

[7] The principles of sentencing are set out in section 718 of the Criminal Code and the main principles applicable in this case are deterrence and denunciation. Rehabilitation is also a principle given the time that has passed since his previous convictions.

[8] A conditional sentence must be considered as the sentence does not exceed two years and there is no minimum sentence. While a conditional sentence has a deterrent and denunciatory effect as recognized by the Supreme Court of Canada in R. v. Proulx, 2000 SCC 5 , [2000] 1 S.C.R. 61, I do not find that a conditional sentence would be adequate to meet the objectives of deterrence and denunciation because the accused is a repeat offender, has previously received a conditional sentence, and he was in possession of a large amount of marijuana.

Disposition

[9] After considering the above factors and the submissions, I impose a sentence of nine months in prison plus two years of probation. Mr. Hoang is also prohibited from possessing any weapons pursuant to section 109 of the Criminal Code for a period of ten years, he must submit a DNA sample pursuant to section 487.05(1) and there will be a forfeiture order for the drugs and cellular telephone which were seized by the police.

R. Smith J.

Given Orally: March 6, 2012

COURT FILE NO.: 10-664 (L’Orignal)
DATE: 2012/03/06

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – LAM DINH HOANG REASONS FOR SENTENCE R. Smith J.

Given Orally: March 6, 2012