ONTARIO

SUPERIOR COURT OF JUSTICE

File No: 11-90000511-0000
Date: 20130327

B E T W E E N:

Her Majesty the Queen

• and -

Tryston Corcho

Maryse Nassar, for the Crown
Jesse Razaqpur, for the Accused

Heard: February 15, 2013

G.R. Strathy J.

1Tryston Corcho appears for sentencing, having been convicted by a jury of trafficking in 0.27 grams of crack cocaine and possession of the proceeds of crime, namely, $55.00 in police “buy” money.

The Circumstances of the Offence

2Mr. Corcho was arrested at the Sheridan Mall in Toronto on July 14, 2010 in an “opportunity drug buy” by undercover Drug Squad officers. After obtaining the drug from his co-accused, Mr. Corcho sold it to an undercover officer for $55.00. He was immediately arrested.

The Circumstances of the Offender

3Mr. Corcho was 21 years old at the time of the offence. He has completed high school. He is from Toronto and is a Canadian citizen. He has two brothers and a sister. He has a young daughter, although there is very little evidence concerning his relationship with her. Although he has a checkered work history, he has had fairly consistent employment since 2007. He has attempted to remain employed, but has been occasionally laid off through no fault of his own. He would like to go to community college to obtain a stable and secure vocation.

Impact on the Community

4In R. v. Woolcock,¹ the Court of Appeal described crack cocaine as an “extremely dangerous and insidious drug with potential to cause great harm to individuals and to society.”

The Position of the Crown and Defence

5The Crown says that the range of sentence for this offence is six months to two years less a day: see R. v. Woolcock. Crown counsel submits that the appropriate sentence in this case is eight months’ imprisonment. Crown counsel acknowledges that a conditional sentence is available in this case, but says that it would not be appropriate, as Mr. Corcho is at risk to re-offend and a conditional sentence would endanger the safety of the community. The Crown submits that if a conditional sentence is imposed, it should be in the 20 to 24 month range and there should be a significant period of house arrest, followed by a period of curfew.

6The defence position is that a conditional sentence is appropriate, consistent with the objectives of sentencing, and can be tailored to meet the goals of denunciation, deterrence and rehabilitation. Counsel submits that Mr. Corcho does not pose a risk to the community. He submits that a twelve-month conditional sentence, including a six months house arrest component, would be appropriate in this case.

The Applicable Principles

7Section 718 of the Criminal Code provides, in part, that the fundamental purpose of sentencing "is to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of [six] objectives." Those objectives include the denunciation of unlawful conduct, deterrence of the offender and others who might be similarly tempted, separation of the offender from society, where necessary, rehabilitation, reparation for the harm done to victims or the community, and the promotion of a sense of responsibility in the offender and acknowledgment of the harm done. Section 718.1 requires that a sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

8Section 718.2 lists other principles to be taken into consideration, including: (a) any aggravating or mitigating circumstances relating to the offence or the offender; (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (d) an offender should not be deprived of liberty if less restrictive sanctions may be available in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered.

9Section 742.1 provides that if a person is convicted of an offence, other than certain specified offences and offences that have a minimum term of imprisonment, and the court imposes a sentence of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in s. 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to his compliance with the conditions imposed under s. 742.3. See also the decision of the Supreme Court of Canada in R. v. Proulx² the leading case.

10A conditional sentence was available at the time of the offences. It would be consistent with some of the principles of sentencing, particularly s. 718.2(d) and (e). The real issue is whether such a sentence would endanger the safety of the community.

Sentencing Precedents

11There is agreement that the appropriate range of sentence in this case is between six months and two years. I have considered all the authorities referred to by Mr. Razaqpur, in which conditional sentences have been imposed in cases involving drugs, including cocaine and heroin, some of which involved much more significant quantities than are at issue here.³ I have also considered the recent decisions of my colleagues Allen J. in R. v. Letemplier,⁴ and Spies J. in R. v. Imoro,⁵ where conditional sentences were imposed for trafficking in cocaine.

Mitigating and Aggravating Factors

12The most significant aggravating factor is that the trafficking was in crack cocaine, a scourge responsible for untold misery and pervasive crime: see Woolcock, above.

13Mitigating circumstances include: (a) Mr. Corcho’s youth; (b) the absence of prior convictions; (c) his record of employment which, although not entirely consistent, demonstrates a desire to maintain employment; (d) his interest, which I regard as sincere, in attending community college and getting his life on track; (e) the small quantity of cocaine involved; and (f) the absence of evidence that this incident was part of any ongoing criminal activity.

Discussion

14Mr. Razaqpur has pointed to a number of cases, at both trial and appellate levels, in which a conditional sentence has been imposed for drug trafficking, even in cases involving serious drugs, like cocaine and heroin, and involving much larger quantities than in this case.⁶

15Ms. Nassar, on behalf of the Crown, relies on R. v. Mangal,⁷ in which Conway J., acknowledging that conditional sentences have been imposed for drug-related offences, concluded that while there were prospects for the rehabilitation of the defendant, a young first offender, the case warranted emphasis on denunciation and deterrence. She had real concern about the risk that he would re-offend, if returned to his home, the community in which the trafficking occurred, while he was under the supervision of his grandmother. Moreover, the quantity of cocaine in that case was 9.16 grams and the defendant admitted that he was a “commercial” dealer.

16While statements of general principle provide an appropriate framework for sentencing, it is an inherently individual process. The circumstances here are different from Mangal. Here, I have a young man, with no prior convictions, who sold a small quantity of cocaine in an opportunity drug buy. There is no evidence that this was part of a larger commercial operation. Mr. Corcho’s work history demonstrates that he has both the desire and the ability to be a productive member of society and I am satisfied that service of his sentence in the community would not endanger the safety of the community. The terms that will be imposed will not only minimize that risk, but they will assist in ensuring that, in the longer term, after the sentence has been served, Mr. Corcho will not re-offend.

17I am satisfied that there is minimal risk of Mr. Corcho re-offending and that permitting him to serve his sentence in the community would not endanger the safety of the community. I am also satisfied that a conditional sentence would be consistent with the fundamental purpose and principals of sentencing. A conditional sentence, with appropriate terms, can serve the goals of denunciation and deterrence and can be appropriately tailored to satisfy the objective of rehabilitation, to ensure that Mr. Corcho receives appropriate supervision as he pursues his employment and educational goals.

Conclusion

18Mr. Corcho, please stand.

19I agree with the observation of your lawyer, Mr. Corcho, that you are at a crossroads in your life. I have decided that it would be wrong to put you on the road leading to jail. While it might serve to denounce the trafficking in drugs, and perhaps deter others, I believe it would interfere with your rehabilitation and that, ultimately, it is not in society’s interest. I have decided to put you on the road that can lead to your productive re-integration into society, by serving your sentence in the community, under close supervision.

20As you serve this sentence, I would like you to remember two things. First, whether you continue on the right road is up to you. If you stray off the road, you can expect serious consequences and you can expect to serve the balance of your term in jail. Second, this sentence is not intended to be easy. You will be under close supervision for a considerable period of time. I have confidence in you Mr. Corcho. I hope you have confidence in yourself.

21Having taken into account the two days you spent in custody prior to trial, for the offence of trafficking in cocaine, I sentence you to fifteen (15) months, to be served in the community, on the following conditions:

(a) you are to keep the peace and be of good behaviour;

(b) you are to appear before the court when the court requires you to do so;

(c) you will report to your supervisor within two (2) business days from today and thereafter when required and in the matter directed by the supervisor;

(d) you will remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor;

(e) you will notify the court or the supervisor of any change of employment or occupation and/or any change of name or address;

(f) you will maintain full time employment or attend an educational program full time, unless you have permission from your supervisor otherwise;

(g) you shall abstain from the consumption of alcohol or drugs except in accordance with a medical prescription;

(h) you shall abstain from being in the company of or associated with anyone known to have a criminal record or who is the subject of criminal charges, except members of your family;

(i) for the first six (6) months of this sentence you shall be confined to your residence under house arrest twenty-four (24) hours per day, seven (7) days per week except for the following:

(i) being at school or work, and including the time necessary to travel to and from school or work;

(ii) attending medical appointments approved in advance by your supervisor;

(iii) dealing with a personal medical emergency;

(iv) reporting to your supervisor;

(v) once a week for a period including transportation not exceeding five (5) hours for personal or household errands, provided that the period is agreed in advance with your supervisor;

(vi) on Sundays between 10:30 a.m. and 1:30 p.m., for the purposes of travelling to and attending at Church;

(j) For the next nine (9) month period, you shall remain subject to the conditions set out in (a) through (h) inclusive, and, in addition, you shall not be away from your place of residence each night between the hours of 11:00 p.m. and 6:00 a.m., subject to any exceptions with permission in advance from your supervisor.

22At the completion of your conditional sentence, there will be a term of probation of six (6) months on the same terms that govern your conditional sentence, save for the substitution of a probation officer for a supervisor, to whom you must report within two business days of the end of your conditional sentence, and you will no longer be under house arrest and you will have no curfew. In addition, you shall:

(a) notify the court or your probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;

(b) report to your probation officer as required.

23In addition there will be a mandatory weapons prohibitions order under s. 109(1)(c) of the Criminal Code, for ten years.

24With respect to the conviction for possession of the proceeds of crime, I impose a conditional sentence of six (6) months, to be served concurrently with your other sentence, in the community and on the same conditions.

G.R. Strathy J.

Footnotes

1. 1[2002] O.J. No. 4927 (C.A.).
2. 2(2000), 2000 SCC 5, 140 C.C.C. (3d) 449 (S.C.C.).
3. 3R. v. Ellrodt, 1999 BCCA 57; R. v. Salazar, [2000] O.J. No. 4974 (S.C.J.); R. v. Kerr, 2001 21142 (ON CA), [2001] O.J. No. 5085 (C.A.); R. v. Moore, [2000] O.J. No. 2260 (S.C.J.); R. v. Frame, [1997] O.J. No. 5557 (O.C.J.); R. v. Kang, [2005] B.C.J. No. 2777 (Prov. Ct.); R. v. Kreutziger, 2005 BCCA 231; R. v. Lee, 2007 ABCA 288; R. v. Byrne, 2009 NLCA 3; R. v. Schneider, 2007 BCCA 560; R. v. Li, [1999] O.J. No. 1586 (S.C.J.); R. v. Rahime, 2001 ABCA 203; R. v. Tran, [2001] O.J. No. 5764; R. v. Otchere-Badu, 2010 ONSC 5271.
4. 4[2012] O.J. No. 3348, 2012 ONSC 4125.
5. 5[2011] O.J. No. 996, 2011 ONSC 1445.
6. 6See footnote 3.
7. 7[2009] O.J. No. 1373 (S.C.J.).