Her Majesty the Queen v. Cong Thanh Tran, 2014 ONSC 4386

COURT FILE NO.: CR-14-90000284-0000

DATE: 20140811

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CONG THANH TRAN

Defendant

R. Visca, for the Crown

M. McKee, for the Defendant

HEARD: April 14, 15, 16, 17, 22, 23:

June 12; August 11, 2014

J. WILSON J.

REASONS FOR SENTENCE

[1] Mr. Tran was convicted in a trial before a jury on April 22, 2014 of conspiracy to export ecstasy to the United States. The quantity of drug involved was 208,000 ecstasy pills with a street value for bulk sales of $3 to $6 per pill. He was also convicted of possession of ecstasy for the purpose of exporting. Finally, he was convicted of possession of a weapon, that is, a large kitchen knife for the purpose of committing an offence.

[2] In this undercover operation, Mr. Tran was present at certain key meetings between the undercover police agent posing as a drug dealer, and Mr. Lao, another high level drug dealer well after the plan for the exportation had been formulated. The undercover officer was to provide a driver to transport ecstasy furnished by Mr. Lao to be deliveredto Houston Texas. The undercover officer’s driver was to exchange the ecstasy for cocaine with the Houston drug dealer, and was to return with 5 kilograms of cocaine to be imported into Canada for Mr. Lao.

[3] At the first meeting where Mr. Tran was present, Mr. Lao confirmed that Mr. Tran would be delivering the ecstasy drugs to the undercover officer in furtherance of this plan. As planned, Mr. Tran delivered the ecstasy pills to the undercover officer, showed him the pills and packaging, and confirmed the number of pills. Further he provided the undercover agent with part of a code to use after the drugs were transported over the border.

[4] As planned, after the delivery of the ecstasy shipment, the U.S. drug dealers provided 5 kilograms of cocaine. Mr. Tran had no part in any discussions concerning the second phase of this transaction, and was not charged with importing cocaine.

[5] The Canadian authorities cooperated with the U.S. authorities, and parties in the United States were arrested after the ecstasy had been delivered and the cocaine provided for the return journey.

[6] The arrest in Canada was planned to take place on the date set between Mr. Lao and the undercover agent for the supposed payment of the agreed upon fee for transporting the drugs to the United States, and bringing the drugs back to Canada.

[7] On that day, Mr. Lao and Mr. Tran arrived at the designated meeting place with the undercover agent in Mr. Tran’s vehicle, with Mr. Tran driving. The undercover officer was not present for the arrest of Mr. Lao and Mr. Tran.

[8] At the time of the arrest Mr. Lao and Mr. Tran did not have the agreed upon funds to pay the undercover officer for transporting the ecstasy. After the arrest, copies of court papers confirming the arrest of the recipients of the drugs in Texas were located in Mr. Tran’s vehicle, along with a large kitchen knife.

[9] There was no evidence called in the trial about specifically where the knife was located in Mr. Tran’s van. Mr. Tran testified that Mr. Lao brought a briefcase with him and that he was unaware of its contents. The inference drawn by the conviction by the jury in count 3, was that Mr. Lao and Mr. Tran knew of the presence of the knife and that Mr. Tran constructively possessed the knife with the intention to threaten or harm the undercover agent for the drug deal gone bad.

The Position of the Crown and the Defence

[10] The Crown seeks a sentence of 9 to 10 years, whereas the defence counsel seeks a sentence of 2 years.

[11] Counsel take a very different view of Mr. Tran’s role in the exporting conspiracy. The large differential in the suggested sentence flows from the view of Mr. Tran’s role in this transaction.

[12] The Crown takes the position that Mr. Tran was an important figure, though not the primary actor. The Crown concedes that Mr. Lao was the primary actor.

[13] The defence argues that Mr. Tran was a minor delivery person, who received $200 for the delivery of the drugs. The defence argues that Mr. Tran was a dupe and a pawn to protect Mr. Lao, who was the person primarily in charge.

Circumstances of the Offender

[14] Mr. Tran immigrated to Canada from Vietnam in 1991. He lived in Vancouver in the early years and later in Brampton. He married in Vietnam, but was divorced in 2000. He may have a daughter. His family resides in Vietnam. He has a grade 5 education, and took an English course for 6 months when he first came to Canada. He performs renovation work.

Prior Criminal Record

[15] Mr. Tran has two prior criminal convictions. The Crown is not relying upon the first conviction that was in the United States.

[16] Mr. Tran’s second criminal conviction was in 2008 for possession over. He was sentenced to 12 months incarceration. Shortly after his release from incarceration, Mr. Tran was involved in this matter.

Presentence report

[17] The presentence report confirms that Mr. Tran continues to minimize his role in the drug conspiracy, continuing to allege that he thought the pills he was delivering in the parking lot were for health purposes. He exhibits little or no insight. He denies that a prior presentence report was prepared for the 2008 offence, and denies the factual content of that report referring to a problem with gambling.

Work history

[18] Mr. Tran does renovation work and installs hardwood floors. Two of his clients attended court, not to give a character reference but to ask that he could finish the work on their basement. It appears that Mr. Tran lives modestly, drives a late model car and does renovation work to support himself. It is not clear what benefit Mr. Tran was to receive for helping Mr. Lao with the delivery of drugs. He testified that he was to receive $200 for gas. Mr. Tran was not a trustworthy witness and I do not accept this evidence. The evidence does illustrate however that Mr. Tran was a minor player in this transaction.

Limited support available to accused

[19] Mr. Tran has no family in Canada. Those that provided assistance for the preparation of the Presentence Report knew little about him, although they confirmed he was a good worker and was gullible, that is, his “problem is believing people easy”.

The role played by Mr. Tran in this transaction

[20] Clearly, Mr. Lao was the business man driving the transactions, using his contacts in the United States and in his numerous contacts with the undercover officer to facilitate the delivery of the drugs across the border. Mr. Lao and the undercover officer discussed the proposed transport of the 200,000 ecstasy pills and import of the 5 kilograms of cocaine over a period of several months beginning in August 2009. These discussions culminated with Mr. Tran’s delivery of the drugs to the undercover officer on November 25, 2009, the delivery of the ecstasy to Houston. In Houston, the ecstasy was exchanged for the cocaine, and the players in the United States were arrested after the exchange. All of the drugs were seized in the cooperative operation between the Canadian and the US authorities.

[21] Mr. Tran and Mr. Lao were arrested on December 16, 2009.

[22] The Crown concedes that Mr. Lao was the primary person responsible in the conspiracy to export the 200,000 ecstasy pills with the undercover agent. It was Mr. Lao’s contacts who received the ecstasy. Mr. Lao was also charged with conspiracy to import 5 kilograms of cocaine. Mr. Tran was not charged in relation to the importing of cocaine.

[23] There were numerous meetings and contacts between Mr. Lao and the undercover officer during the period from August 2009 to the date of his arrest in December 2009. At no time did Mr. Tran separately ever contact the undercover officer or the players in the United States on his own. The only time he was alone with the undercover officer was the brief encounter on November 25, 2009. Mr. Tran and Mr. Lao drove off together to pick up the drugs, and Mr. Tran returned alone to deliver the drugs. Mr. Lao reappeared soon after the actual delivery of the drugs had taken place.

[24] Mr Tran was present at four key meetings with Mr. Lao and the undercover officer, playing essentially a passive role.

[25] The first meeting Mr. Tran attended was on October 7, 2009, several months after Mr. Lao and the undercover officer had planned for the exportation of the drugs. Mr. Tran did not participate in the meeting with Mr. Lao and the undercover officer, but Mr. Lao confirmed that it would be Mr Tran who would be delivering the drugs to the undercover officer.

[26] Mr. Tran was also present at another two meetings in November 2009. From the nature of the conversation was clear that Mr. Tran was aware that the plan was for the exportation of an illegal drug. The jury did not accept Mr. Tran’s evidence that he thought that the drugs he was delivering in the parking lot of the restaurant were for muscle building drugs that were not illegal. The evidence of the contents of the conversations fully supports the jury’s conclusions that Mr. Tran was a member of the conspiracy to export and that he possessed the ecstasy for the purpose of exportation, although clearly his role was a minor one compared to Mr. Lao.

[27] It appears that Mr. Lao used Mr. Tran to protect himself from actually possessing the drugs prior to their transfer to the undercover officer. Mr. Lao was present with the undercover officer prior to the delivery of the drugs. When it came time for the actual delivery, Mr. Lao had temporarily disappeared, leaving Mr. Tran with the drugs to be delivered and transferred to the undercover officer.

[28] All communication after the delivery of the drugs by Mr. Tran was between Mr. Lao and the undercover officer.

Position of the Crown on Sentence

[29] Methamphetamine has now been reclassified as a schedule 1 drug, and is in the same category of drugs as heroin and cocaine. Clearly it is a highly addictive drug and dangerous to the public. The crown provided caselaw that confirms the seriousness of ecstasy, or methamphetamine as a drug. (See: R. v. Villanueva, 2007 ONCJ 87, R. v. Copeland (2007), 2007 CanLII 37232 (Ont. S.C.)).

[30] As confirmed in R. v. Villanueva at para 48, a review of sentences “for persons dealing in hard drugs at the mid-level or higher in the trafficking hierarchy can expect to receive substantial penitentiary terms. The length of the term will depend on all of the circumstances of the case”.

[31] The Crown relies on the decision R. v. Oraha, 2012 ONSC 1439, aff’d 2014 ONCA 359. Archibald J. found that based upon his review of the caselaw, an appropriate sentence for possession of 3 kilos of cocaine for the purpose of trafficking was 6 to 8 years.

[32] The Crown also relies on the decision of Dambrot J. in R. v. Velle Chanmany, 2013 ONSC 5623. Danbrot J. concluded that Mr. Chanmany was a lazy and greedy 32 year old man who had an aversion to work but was attracted to living well. He became an active wholesaler of cocaine and methamphetamine in large quantities - in that case 7 kilograms of the drug. Danbrot J. sentenced Mr. Chanmany to 9 years, less 6 months credit to reflect his respect of the conditions of judicial interim release.

[33] I agree with the Crown’s submission that the appropriate range of sentence having regard to the caselaw for the possession of kilograms of methamphetamine for the purpose of trafficking for the primary operator, such as Mr. Lao is in the range of 6 to 9 years. The fact that the drugs were exported to the United States is a further aggravating factor, reflecting the need for a substantial sentence. The difficulty I have with the Crown’s submission, is that although 9 or 10 years would be a reasonable sentence for Mr. Lao for the exporting charges, I do not think it is reasonable for the degree of culpability of Mr. Tran in the facts of this case. Mr. Tran is not as low on the scale as a simple mule, but he is much closer to a mule fact situation, than the mid to high level dealer such as Mr. Lao directing the transaction.

[34] I turn to consider the sentence of Mr. Lao, having regard to his degree of responsibility and culpability for not only the exporting charge, but also for importing 5 kilograms of cocaine, to assess what is a reasonable sentence for Mr. Tran, emphasizing the factors of deterrence appropriate in this case.

Sentencing of Mr. Lao

[35] Mr. Lao pleaded guilty to both exporting the ecstasy, and to importing the cocaine, as well as a separate forgery charge in relation to a false lease prepared in another drug transaction designed to mislead the police. Mr. Tran was not charged with the forgery of the false lease as he was not involved in the other transaction.

[36] The total sentence imposed in a joint submission by Crown and defence counsel for Mr. Lao on a guilty plea was equivalent to 10 years and 6 months. Mr. Lao was given credit for time served of 4 years 9 months for pre-trial custody. Mr. Lao was sentenced to an additional period of incarceration of 5 years and three months for the exporting and the importing charges, to run concurrent, as well as a further six months sentence consecutive for the forgery of the lease. The charge relating to the knife was withdrawn.

[37] Mr. Lao’s criminal record was filed at my request as an exhibit. It is not disputed that Mr. Lao had a much more serious criminal record than Mr. Tran.

Conclusions

[38] I must consider the purposes and principles of sentencing enunciated in s. 718 of the Criminal Code, and the objectives of sentencing, namely "denunciation, deterrence, separation from society, rehabilitation, reparation, and promotion of responsibility and acknowledgement of harm". Further, I must consider that a fundamental principle of sentencing is that sentences must be proportionate to the gravity of the offence, and the degree of responsibility of the offender.

[39] I have considered the following aggravating or mitigating circumstances related to the offence or to the offender:

(1) prior criminal record;

(2) the quantity of drug involved;

(3) Mr. Tran’s role in this transaction; and

(4) Mr. Tran’s lack of remorse and insight.

[40] Mr. Tran was convicted of conspiracy to export ecstasy to the United States, and possession of ecstasy for the purpose of exporting. In my view, in the facts and circumstances of this case Mr. Tran should have imposed a sentence of 5 years for his role in this major exporting of an extremely dangerous drug, concurrent on these two charges.

[41] The conviction of the weapon possession charge shall result in an additional sentence of 6 months consecutive, to the five year sentence, in accordance with the submissions of the Crown. This results in a total sentence of 5 years, and six months.

[42] Mr. Tran was compliant on bail and fulfilled his conditions for several years from November 2009 to the date of this trial in 2014. It is appropriate in accordance with the approach taken in R. v. Velle Chanmany, 2013 ONSC 5623 that Mr. Tran be given 6 months’ credit for being on bail, respecting his conditions of bail and the restrictions on his freedom for the time since his arrest in 2009 to the date of his trial. After taking into account the six month credit for bail compliance, the remaining outstanding sentence left to serve is five years.

[43] This sentence recognizes the seriousness of the offence, but also recognizes the relatively minor role played by Mr. Tran in this transaction. It appears that he was used by Mr. Lao, and it is not clear what financial gain Mr. Tran hoped to reap. In reaching these conclusions I have considered the facts and circumstances of this case, the cases referred to me by counsel, and also the sentence imposed upon Mr. Lao. The most helpful comparative indicator of an appropriate sentence for Mr. Tran is to view the sentence equivalent to 10 years imposed upon Mr. Lao after taking into account time served, for his role in not one, but two major drug transactions. I have considered Mr. Lao’s more serious criminal record, as well as the mitigating factor that Mr. Lao pleaded guilty in assessing the appropriate sentence for Mr. Tran.

[44] The conditions agreed upon by counsel in the sentencing hearing include DNA testing and a ten year section 109 weapons prohibition order.

[45] I thank counsel for their courtesy and professionalism throughout.

J. Wilson J.

Released: August 11, 2014