ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-10-90000169-0000
DATE: 20130909
BETWEEN:
HER MAJESTY THE QUEEN
– and –
VELLE CHANMANY
Sarah Egan, for the Crown
Leora Shemesh, for the offender
HEARD: June 27, 2013
REASONS FOR SENTENCE
M. Dambrot J.:
[1] On April 5, 2013, I found Velle Chanmany guilty of possession of methamphetamine for the purpose of trafficking, and possession of Canadian currency that was the proceeds of crime. I found that in the early hours of the morning of May 8, 2008, members of the Toronto Police Service executed a general warrant on a motor vehicle in the control of the offender, and seized 7 kilos of methamphetamine and $1,800 located in the rear seat. The offender was in possession of the methamphetamine for the purpose of trafficking, and in possession of the money knowing that it was the proceeds of crime. I am now obliged to impose sentence for these offences.
THE OFFENCE
The evidence at trial
[2] I accepted the following evidence led by the Crown at trial.
[3] In 2008, members of the Toronto Police Service were conducting a large investigation referred to as Project Blackhawk. That investigation commenced in 2006, and culminated in approximately 30 arrests on June 18 and 19, 2008. The offender was one of about a dozen targets of the investigation. All of the targets were under physical and audio surveillance.
[4] On April 29, 2008, the police seized 52 kilos of methamphetamine from a van, and dismantled a methamphetamine laboratory at 1645 Sismet Road, Unit 13, in Mississauga. The operator of the laboratory, Sataya Vongkosy, was not arrested at that time.
[5] On May 7, 2008, a team of police officers was tasked with locating and conducting surveillance on the offender, while other officers monitored his phone calls. At 8:58 p.m., the offender and Vongkosy spoke on the telephone. At 9:41 p.m., the offender arrived at the residence of Vongkosy’s parents, walked into the residence empty handed, and emerged at 9:52 p.m. carrying a bright yellow shopping bag and a dark coloured bag, both of which appeared to be full and heavy. The offender placed both bags into the rear seat of his vehicle and drove away.
[6] When the offender left the residence, he drove in a manner consistent with counter-surveillance, including taking an indirect route to downtown Toronto, popping in and out of “unsensible” side streets, and increasing and decreasing speed. Chanmany was aware that he was under police surveillance. Because of Chanmany’s counter-surveillance measures, the officers stayed back and “let him run”, following him downtown using GPS information rather than visual observation. As a result, they did not know his precise route downtown, but they stayed close, saw him occasionally, knew his approximate track, and knew when and where he stopped. Ultimately Chanmany parked his car in a parking lot in the entertainment district of downtown Toronto, paid the attendant and left the area on foot. In order to avoid being arrested in physical possession of the methamphetamine, he fled the area before the police arrived, leaving the drugs behind.
[7] By midnight, the police had set up surveillance on the vehicle. They maintained surveillance until 5:00 a.m., but the offender did not return. At 5:05 a.m. the police executed their warrant on the vehicle. They smashed the rear driver-side window and from the rear seat seized a laundry hamper, a black satchel and two laundry bags, one of which contained the yellow bag that the police had seen earlier. The officers then returned to their station, leaving the damaged car behind. The offender did not return to his car until about 11:00 a.m. the next morning.
[8] When the seized items were examined at the police station, the police found seven vacuum-sealed one-kilo bags of methamphetamine in the yellow bag, and $1,800 in $20 bills in the black satchel.
[9] Velle Chanmany testified in his own defence. He admitted that he was a kilo and multi-kilo level cocaine trafficker in the time period leading up to this offence, but he denied ever selling methamphetamine. In particular, he denied being in possession of the methamphetamine seized from his car. His position at trial was that the police never seized any drugs from his car, and that their evidence was fabricated.
[10] I concluded that Chanmany’s denial of ever selling methamphetamine and his denial of being in possession of the methamphetamine seized from his car were untruthful. I was satisfied that Chanmany was actively engaged in trafficking in methamphetamine at the wholesale level with his friend Vongkosy, and that on May 7 and 8, 2008, he took possession of seven kilos of methamphetamine directly or indirectly from Vongkosy, intending to traffic in them by delivering them to a person or persons unknown.
THE OFFENDER
[11] Chanmany testified that he is 32 years of age and was born in Saskatoon. He moved to Ontario with his family when he was seven years old, and has lived in Kitchener most of his life. He has a high school education. He left home after finishing high school, and has worked for only 3 or 4 months in his life, when he was 22, in his mother’s factory making bumpers. He has earned money by gambling and selling cocaine. He began selling ounces of cocaine in 2004, and then graduated to selling kilos by 2006. At times, he has sold multiple kilos. He stopped there because his customers could not afford more.
[12] In 2006, Chanmany usually sold 1 or 2 kilos of cocaine at a time, at a price of $25,000 to $30,000 per kilo. His cocaine was usually fronted to him by “Kevin”; Chanmany then sold it to others. Chanmany got in touch with the people he dealt with on cell phones and Blackberries. He had more than one at a time, and kept switching them so that the police could not get a hold of his contacts. He obtained phones in his brother’s name, but not in his own name. When he called people, he usually used short names, and not real names, and coded language to pursue his drug trafficking business. For example, he used the word “files” for money and “girls” for cocaine. He usually employed runners to pick up cocaine from his supplier and to deliver it to his customers, but he picked up the money from his customers himself. However he did transfer cocaine himself in his vehicle at times. Although he sold cocaine, he never used it.
[13] As I indicated, Chanmany denied ever selling methamphetamine. In particular, he denied being in possession of the methamphetamine seized from his car. His position at trial was that the police never seized any drugs from his car, and that their evidence was fabricated.
[14] I concluded that Chanmany told the truth about all of the things I have summarized above, save for his denial of ever selling methamphetamine, and his denial of being in possession of the methamphetamine seized from his car. In the end, I was satisfied that Chanmany was a lazy and greedy young man who had an aversion to work, but was attracted to living well. As a result, he became an active wholesaler of cocaine and methamphetamine.
[15] In light of the fact that Chanmany is a first offender, I ordered a pre-sentence report. From this report, I learned that the offender’s parents divorced when he was six years of age, and that he moved to Oshawa with his mother, brother and half-sister a short time later. When the offender was ten the family moved to Kitchener, where the offender has resided ever since. The offender’s mother, with whom he was close, passed away last year. His father lives in San Francisco.
[16] The offender’s last and only employment was six years ago, when he worked briefly at his mother’s place of employment. He quit after a few months because he felt he was not making enough money for the amount of work he was doing. He told the author of the pre-sentence report that he then decided to give himself a “break from working”, although once arrested, he said that his bail conditions were too restrictive to permit him to find work the first few years. I have no doubt that if the offender really wanted to work, his judicial interim release order could have been modified to permit him to do so. He has assisted at a friend’s martial arts academy on a volunteer basis over the past two and a half years and is said to have been “very helpful”. At present, the offender’s source of income is from family support and an inheritance. He says that he wants to find employment once he is released. I find as a fact that, in reality, the offender has little motivation to work, and much prefers the easy life.
[17] I note that while the offender testified that he never used cocaine, he has used other drugs in the past, principally marihuana and, occasionally, MDMA. He has not used drugs for the past five years. He says that he no longer associates with people involved in criminal activity.
[18] The offender was released from custody after his arrest in 2008. From July 10, 2008 to sometime in March 2011, a period of approximately two years and seven months, he was subject to house arrest, and was not permitted to be away from his residence except in the company of a surety. Thereafter, with the Crown’s consent, he has instead been subject to a curfew from midnight to 6:00 a.m. each day, unless in the company of a surety. As a result, as noted in the pre-sentence report, for the last two and a half years Chanmany has been a student at the MAS Thai Boxing Academy. After achieving his Blue Oratchiet he took on an assistant instructor role as a volunteer.
THE POSITIONS OF THE PARTIES
[19] Crown counsel submitted that denunciation and deterrence were the paramount considerations in imposing sentence on Chanmany, and that a 12 year period of imprisonment for the methamphetamine offence and an 18 month concurrent sentence for the proceeds of crime offence would be appropriate, together with certain ancillary orders. Counsel for the offender submitted that a sentence of six years imprisonment less one year credit for spending five years on onerous terms of judicial interim release would be appropriate.
DETERMINATION OF SENTENCE
[20] In determining the appropriate sentence to impose in this case, I begin by reminding myself of the applicable principles. Subsection 10(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, (“CDSA”) provides that the fundamental purpose of sentencing for offences under s. 4 or 5 of the CDSA is “to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.” Section 718 of the Criminal Code, R.S.C. 1985, c. C-46, directs judges to attempt to achieve those goals 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, and the promotion of a sense of responsibility in the offender. Section 718.1 provides that whatever sanction is imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
[21] In determining the sanction required in the particular circumstances of a case, a judge must consider “any relevant aggravating or mitigating circumstances relating to the offence or the offender”, and specifically must take into account the existence of any of the aggravating circumstances set out in paragraph 718.2(a) of the Code. Where sentence is to be imposed for a designated substance offence, the court is further required to consider the presence of any of the circumstances set forth in paragraphs 10(2)(a) to (c) of the CDSA. I will refer to these aggravating circumstances insofar as they are pertinent. In addition, paragraph 718.2(b) of the Code provides that the court must bear in mind that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[22] I turn next to the application of these principles.
The gravity of the offence
[23] The offence of possession of methamphetamine for the purpose of trafficking is of increasing prevalence in this province, and has come to be recognized as a most serious offence. Methamphetamine is consistently referred to as a “hard” drug. It causes enormous harm to individual users, and significant harm to the health and safety of the community. It has been said that in many respects, the destructive consequences of crystal methamphetamine mirror those of two other hard drugs, heroin and cocaine. I do not doubt the accuracy of this statement. In addition, the methamphetamine offence committed by Chanmany is a particularly serious one. Seven kilos of methamphetamine is a very large quantity indeed. There can be no doubt that the offender was a participant in what can only be described as a high-level, wholesale delivery of a very dangerous drug.
The degree of responsibility of the offender
[24] While there is no dispute that possession of seven kilos of methamphetamine for the purpose of trafficking is a grave offence, counsel disagree about the offender’s moral blameworthiness in relation to it. The dispute centres on the use I can make of the offender’s evidence that he began selling ounces of cocaine in 2004, and graduated to selling kilos and sometimes multiple kilos by 2006, at a price of $25,000 to $30,000 per kilo. Relying on R. v. Edwards (2001), 2001 24105 (ON CA), 54 O.R. (3d) 737 (C.A.), Crown counsel argues that while I may not punish the offender for other untried offences, I may take his evidence of his trafficking history into account insofar as it sheds light on his background or character or explains the circumstances of the offence. She says that this evidence is highly relevant for these purposes, and clearly disentitles Chanmany to any leniency.
[25] For her part, counsel for the offender argues that I cannot use Chanmany’s evidence that he was a kilo level cocaine trafficker to establish that he was a high level methamphetamine trafficker. She submitted that I am restricted to considering this offence as a one off delivery of methamphetamine.
[26] In my view, it is beyond question that the evidence of Chanmany’s cocaine trafficking at the kilo level is relevant for sentencing purposes. While of course I cannot fashion a sentence that punishes him for his past cocaine trafficking, Chanmany’s cocaine history sheds light on his background and character, and explains the circumstances of the methamphetamine offence. The narrow distinction pressed for by counsel for the offender is not a meaningful one. I reject the assertion that this offence was a one off foray into methamphetamine trafficking. I found as a fact in my reasons for judgment that Chanmany was actively engaged in trafficking in methamphetamine at the wholesale level. It is impossible to imagine that Chanmany’s first experience with methamphetamine was as a participant in a seven kilo transaction, but it seems to me to hardly matter.
[27] Cocaine and methamphetamine are both listed in Schedule I of the CDSA. Offences involving Schedule I drugs attract the most severe penalties under the Act. Methamphetamine and crack cocaine have been treated by the courts as being similar in their dangerousness. Offences involving those two drugs attract similar sentences. It is fair to say that the offender is a long term, high level trafficker in dangerous, Schedule I drugs, and that this offence is a particularly egregious example. What is more, he is a user of neither drug, and is motivated to sell these drugs entirely by greed, in order to support a lavish lifestyle without having to undertake any real work. He is apparently quite indifferent to the suffering that may be caused by the use of the drugs in which he traffics. Whether these inferences drawn from the cocaine evidence are classified as being related to background, character, an explanation of the circumstances of the offence, or all three, they properly have an impact on the quantum of sentence. As the Crown put it, they disentitle the offender to leniency. Again, even if I am wrong, and the offender has not trafficked in methamphetamine prior to this offence, it makes no difference for the purpose of sentencing.
The paramount sentencing objectives
[28] In this case, in order to achieve the fundamental purpose of sentencing, the paramount sentencing objectives must be denunciation of Chanmany’s conduct and deterrence of others who might be tempted to engage in similar behaviour.
Aggravating and mitigating circumstances
[29] In this case, the mitigating circumstances include the facts that:
• Chanmany is a first offender
• He has the support of his family
• His freedom was constrained by bail conditions for a lengthy period of time, and on conditions that were onerous for the first three years
• Given his age, he likely has some rehabilitative potential, although his volunteering at a martial arts academy is a frail demonstration of it
[30] The aggravating circumstances include the facts that:
• Chanmany committed a very serious offence involving a hard drug that does great harm to users and to the community
• His culpability was at a very high level and was the culmination of activity that had continued over a significant period of time
• He is not a user, and committed the offence for commercial gain for reasons of greed
The appropriate sentence
[31] The task that remains is to select a sentence that will satisfy the need for denunciation and deterrence, have appropriate regard to the aggravating and mitigating circumstances, and take into account Chanmany’s rehabilitative potential.
[32] In an effort to assist me in giving effect to the principle that the sentence that I impose must be similar to sentences imposed on similar offenders who have committed similar offences, the parties have referred to a large number of sentencing cases in support of their conflicting positions. Unsurprisingly, none of the offenders and offences in these cases is identical to Chanmany and his trafficking offence. Nonetheless, I have reviewed these cases closely, and found them instructive. I will refer to only two of these.
[33] First, in R. v. A.S., 2010 ONCA 441, 258 C.C.C. (3d) 13, a Crown appeal from sentence, the Court of Appeal declined to interfere with a six year sentence less credit of seven months of pre-trial custody. The offender had trafficked in a total of 7 kilos of methamphetamine and 2.2 kilos of marihuana over a 14 month period. In that case the offender had a lengthy criminal record, but with no sentence greater than seven months. On the other hand, while the offender had previously trafficked in marihuana, it appeared that the offender had not trafficked in methamphetamine prior to an undercover officer’s request to supply him with that drug. In addition the offender was a methamphetamine addict throughout the period of the offences. It was also noted that while the greater quantity of methamphetamine was trafficked after methamphetamine became a Schedule I offence, the chain of offences was initiated by the undercover officer before that change. Finally, the offender cooperated with the police both before and after being sentenced.
[34] In the particular circumstances of that case, the court declined to interfere with the sentence, but characterized it as low.
[35] In my opinion, Chanmany’s offence is considerably more aggravated than was the offence committed by A.S. While Chanmany is a first offender and A.S. was not, A.S. had not previously sold hard drugs, while Chanmany is a long term kilo level trafficker in cocaine; A.S. trafficked in 7 kilos of methamphetamine over 14 months, while Chanmany was in a position to possess 7 kilos for the purpose of trafficking on a single day; A.S. was a methamphetamine addict, while Chanmany did not use hard drugs at all; A.S.’s offence was instigated by a police officer, while Chanmany’s was not; and A.S. cooperated with the police. Despite these differences, counsel for Chanmany pressed for the same six year sentence as was imposed on A.S. In my view, if a six year sentence was low for A.S., it is entirely inappropriate for Chanmany.
[36] The second case I will refer to is R. v. Oraha, 2012 ONSC 1439, a decision of my colleague Archibald J. Oraha was convicted of possession of 3 kilos of cocaine, 3 kilos of methamphetamine and 1.3 kilos of MDMA, each for the purpose of trafficking, and conspiracy to traffic in 3 kilos of cocaine. Oraha was 25 years of age, recently married, had a four-month old child and was a first offender. He expressed remorse for his crimes, and effectively pleaded guilty to the offences. He had a positive pre-sentence report. He was working with children and teenagers at a community centre, and was said to be making a difference and to have an outstanding character. Despite all of this, the sentencing judge determined that it was necessary to emphasize deterrence and denunciation, and sentenced the offender to nine years imprisonment.
[37] The trial judge characterized Oraha as a high level commercial trafficker, but at the lower end of that “hierarchy”. He held that the appropriate sentence was 6-8 years for each of the cocaine and methamphetamine possession for the purpose of trafficking offences, 2 years for the MDMA offence and 5-7 years for the conspiracy offence. He imposed a global sentence of nine years, taking into account that a positive change in Oraha was likely, and that he had a substantial likelihood of reformation.
[38] It is impossible to draw an exact relationship between the sentencing of Oraha and that of Chanmany. While in many respects their offences are different, the total quantity of hard drugs seized in each case is similar, and both Oraha and Chanmany trafficked in both cocaine and methamphetamine. On the other hand, in Oraha’s favour, he was considerably younger than Chanmany at the time of sentencing, and his prospects of rehabilitation were markedly better. He had demonstrated a life change that has to date eluded Chanmany. However I am also mindful of the fact that while I can take into account Chanmany’s trafficking history, I am nonetheless sentencing him for a single incident. In the end, I conclude that their sentences should not be markedly different.
Disposition
[39] In my opinion, the sentence that will best balance the need for denunciation and deterrence with Chanmany’s prospects for rehabilitation, and that is proportionate to both the gravity of the offences and the degree of responsibility of the offender, is a term of imprisonment of 9 years for the offence of possession for the purpose of trafficking, less 6 months to reflect his 5 years on judicial interim release, and 18 months for the offence of possession of proceeds of crime, to be served concurrently. In addition I make a DNA order and a forfeiture order under s. 109 of the Criminal Code with respect to $1,800 seized in his motor vehicle and $12,300 seized from him in the course of this investigation in Guelph.
M. Dambrot J.
Released: September 9, 2013
COURT FILE NO.: CR-10-90000169-0000
DATE: 20130909
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
VELLE CHANMANY
REASONS FOR SENTENCE
DAMBROT J.
RELEASED: September 9, 2013