ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR/13/90000/3360000
DATE: 20150722

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

FRANK LUU

C. de Sa for the Public Prosecution Service of Canada
K. Schofield, for Mr. Luu

Heard: December 8, 2014 and June 29, 2015

M. Forestell J.

reasons for sentencing

Introduction

1Mr. Luu pleaded guilty on December 8, 2015 to one count of trafficking in a controlled substance and one count of possession of a controlled substance for the purpose of trafficking. On June 29, 2015 I heard submissions on sentencing and adjourned the matter until today for sentencing.

Circumstances of the Offences

2The facts in support of the guilty pleas may be summarized as follows:

P.C. Carreia, working as an undercover officer, purchased cocaine from Mr. Luu on August 16, 2011, August 18, 2011 and September 1, 2011. The sales involved 3.53 grams of cocaine for $220; 3.45 grams of cocaine for $220; and, 8.4 grams of cocaine for $420. When the police arrested Mr. Luu on September 1, 2011 they found 69.19 grams of cocaine, 6.6 grams of MDMA, 22 grams of marijuana and $1,055 in Canadian currency in his vehicle. On the same day, a search warrant was executed at Mr. Luu’s residence where the police located: 104.8 grams of cocaine, a small amount of MDMA, scales, a money counter and currency.

3The expert opinion of Detective Constable Andrew Lipkus contained in the report filed on sentencing was that Mr. Luu was a street to mid-level commercial trafficker. The drugs in his possession were valued at between about $8,800 and $19,600.

Circumstances of the Offender

4Mr. Luu is 28 years-old. He was 24 at the time of the offences. Mr. Luu grew up in Toronto. He lived with both parents until they separated when Mr. Luu was about 12 years-old. His father was physically abusive to his mother. Mr. Luu lived with his mother and had little contact with his father after his parents separated.

5Mr. Luu graduated from high school in Toronto in 2005 and attended the University of Toronto for two years. After leaving university, Mr. Luu was employed at the Spoke Club for one year and then at Cumbraes Butcher Shop for five years. At both the Spoke Club and Cumbraes Mr. Luu worked his way up in the business, ultimately working as a sous chef at Cumbraes. It was while employed in the restaurant industry that Mr. Luu began using cocaine. He reported becoming a heavy user of cocaine during the eighteen months before his arrest. His minimum wage position was not sufficient to support the cost of the cocaine that he was consuming. It was at this point that he began trafficking to support his cocaine habit.

6He reported curbing his use after his arrest and ultimately abstaining completely.

7After his arrest on the charges before the Court, Mr. Luu was released on a house arrest bail on September 6, 2011. He was initially not permitted to leave his residence for employment. This was varied on September 11, 2012 to a house arrest bail with an employment exception. He worked from August 21, 2012 to February 2015 at a warehouse stocking shelves. From March 2014 to March 2015 he worked on a part-time basis as kitchen help. In March 2015 he began an apprenticeship at Custodio’s Meat and Eat. He remains employed at Custodio’s. He has also been employed since May 2015 by M-9 Design setting up backyard food gardens.

8In addition to his employment, Mr. Luu completed 200 hours of community service in 2013.

9Mr. Luu spent the equivalent of 17 days in pre-trial custody. He also spent 3 years and 10 months on strict bail conditions. As I noted earlier, the first 12 months on bail Mr. Luu was on house arrest with no exceptions. This was changed to house arrest with an exception for employment and then in April 2013 the house arrest was changed to a curfew of 10:00 p.m. to 6:00 a.m.

10During the time that Mr. Luu was on bail, the police checked his compliance frequently.

The Positions of the Parties

11The position of the Crown is that a global sentence of 2 ½ to 3 years’ imprisonment is appropriate before credit for pre-trial custody and strict bail.

12Counsel for Mr. Luu submits that a conditional sentence should be imposed.

Analysis

13Sections 742.1 to 742.7 of the Criminal Code, at the time of these offences, authorized a court to make an order for a conditional sentence of imprisonment. A conditional sentence would not be available to Mr. Luu had the offences been committed after the amendments to the Criminal Code.

14A conditional sentence is only available if I conclude, after taking into account all of the relevant sentencing principles, that a fit and appropriate sentence is one of imprisonment for less than two years, that having the offender serve the sentence in the community would not endanger the community and that a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code, R.S.C., 1985, c. C-46.

15In this case, for the reasons that I will now set out, I have concluded that a sentence of under two years would be a fit and appropriate sentence, that having Mr. Luu serve that sentence in the community would not endanger the community and that a conditional sentence is consistent with the fundamental purpose and principles of sentencing. I will address each of these preconditions separately.

1. Is the appropriate sentence one of less than two years?

16In determining whether a reformatory sentence is a fit sentence I have considered s. 718.2 of the Code which requires that I take into account that a sentence may be increased or decreased depending on the presence of relevant aggravating or mitigating circumstances and that similar sentences should be imposed on similar offenders for similar offences.

17I have also considered the principles governing sentences of imprisonment, particularly for first offenders. The Court of Appeal made it clear in R. v. Priest[1] that when sentencing first offenders, “the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances.”

18Rehabilitation is a valid objective of sentencing and is of particular importance in sentencing first offenders. In R. v. Woolcock our Court of Appeal pointed out the importance of rehabilitation in the protection of the public saying at para. 13:

One of the dangers of imposing a lengthy term of imprisonment on facts such as these is that it could impair the rehabilitation and reintegration of this person as a responsible member of his community. This type of risk has been recognized by this court in R. v. Pearce (1974), 1974 1448 (ON CA), 16 C.C.C. (2d) 369 (Ont. C.A.). At p. 371, Dubin J.A., dissenting, stated:

It ought not to be overlooked that it is important that persons in prisons who are to be released at some time will not return to a life of crime but will become self-supporting, capable of assuming new responsibilities and turn in the direction of becoming useful members of society. If a prison term is of such a length as to endanger the future rehabilitation of an accused, then the term of imprisonment imposed on him will not protect society in the future.[2]

19The range of sentence for first offenders engaged in commercial trafficking in cocaine is between a high reformatory sentence and 6 years’ incarceration.[3] The defence seeks a sentence at the very lowest end of that range. The Crown has argued that a sentence around the middle of that range should be imposed.

20Mr. Luu engaged in repeated drug transactions. He was a commercial trafficker at the street to mid-level. He was not an addict-trafficker in the sense of a person who trafficked only to obtain drugs for himself. Mr. Luu trafficked for profit. He was, however, an addict and his addiction was one of the causes of his criminal conduct. His drug trafficking began when his substance abuse became too expensive and his drug trafficking ended with his arrest, bail conditions and treatment.

21Aggravating factors in this case are: that Mr. Luu trafficked on three occasions; that he was operating a commercial enterprise; that he was in possession of a significant amount of cocaine; and, that he was also in possession of MDMA. Mitigating factors are: Mr. Luu’s youth; the fact that these are his first offences; and, his good conduct and rehabilitative efforts while on bail.

22While a sentence of two years less a day is at the low end of the range, it is a sentence that is fit in this case because of Mr. Luu’s youth and his conduct in rehabilitating himself. He has sought help for his addiction, found employment and made efforts to make reparation to the community through volunteer work. His guilty plea and his conduct since his arrest evidence remorse.

2. Would a conditional sentence endanger the community?

23The second requirement before a conditional sentence can be imposed is that it must not endanger the community.

24I recognize the damage to the community from drug trafficking.

25As noted by Bassel J. in R. v. Amour, “The devastating health effects on cocaine drug users, the terribly addictive aspect of this drug, the disastrous effects on their families, and the ruination of their lives all reflect very real victims, which is an aggravating factor.”[4] Our courts have repeatedly emphasized the connection between drug trafficking and other crime, including violent crime.[5]

26In this case, Mr. Luu has spent three and one-half years on bail without incident. He is not trafficking in drugs or using drugs. While I recognize the serious danger to society inherent in drug trafficking, I find that the community would not be endangered if Mr. Luu served his sentence in the community.

3. Is a conditional sentence consistent with the fundamental purpose and principles of sentencing?

27The final requirement for the imposition of a conditional sentence is that it must be consistent with the fundamental purpose and principles of sentencing.

28The purpose and objectives of sentencing are set out in s. 718 of the Criminal Code. Generally speaking, the fundamental purpose of sentencing is to foster respect for the law and to maintain a just, peaceful and safe society. Section 718.1 of the Code requires that the sentence be proportionate to the gravity of the offence and the degree of responsibility of the offender.

29Courts attempt to achieve these purposes by imposing just penalties that have one or more objectives, including denunciation, specific and general deterrence, rehabilitation, reparation to the community and the promotion of a sense of responsibility in the offender.

30The devastating effects of cocaine have been well articulated in the case law. The possession of MDMA in conjunction with the cocaine in this case is an aggravating factor. The paramount sentencing objectives in sentencing for these offences are deterrence and denunciation. Our Court of Appeal has observed that conditional sentences will be rare in cases of drug trafficking.[6]

31While incarceration is considered a greater deterrent than a conditional sentence, as stated in R. v. Proulx, “…a conditional sentence can provide significant deterrence if sufficiently punitive[.]”[7]

32In this case, I find that a lengthy conditional sentence with sufficiently strict terms is consistent with the purpose and principles of sentencing. A lengthy conditional sentence with terms that allow Mr. Luu only to leave his home for employment or treatment or counselling is punitive and satisfies the objectives of deterrence and denunciation. Such a sentence also advances the objective of rehabilitation in particular by allowing Mr. Luu to continue his employment.

Credit for Pre-trial Custody and Strict Bail

33I have taken into account Mr. Luu’s time on strict bail and his conduct while on bail as a mitigating factor in sentencing. It is a factor in my decision that a conditional sentence is appropriate. I do not intend to give any credit for the strict bail in the sense of reducing the length of the sentence. Mr. Luu was not prejudiced by the strict bail terms – he was given the opportunity to prove that he could abide by strict terms.

34I must credit him for the time spent in actual custody which is the equivalent of 17 days.

Conclusion

35On Count 4, trafficking in cocaine, I impose a sentence of two years less 18 days to be served in the community on the following terms:

1. The mandatory statutory conditions as set out in section 742.3(1) of the Criminal Code;

2. In addition to the statutory terms it is ordered that he comply with the following conditions:

(a) For the first 18 months of the sentence to be at his residence at all times except for the following reasons:

(i) reporting to his supervisor;

(ii) attendance at his place of employment or school or for employment purposes provided it is not between 10:00 p.m. and 6:00 a.m.;

(iii) attendance at scheduled counselling, medical or dental appointments;

(iv) dealing with any medical emergency affecting him or a member of his immediate family;

(v) a four-hour period weekly, the precise time to be agreed upon by his supervisor, during which time he may attend to personal matters such as banking, shopping and household errands;

(vi) travel to and from any of these activities; or,

(vii) at any other time with the prior written permission of the supervisor.

(b) For the remainder of the sentence, not to be away from his residence between 11:00 p.m. and 6:00 a.m. except in the event of a medical emergency affecting him or a member of his immediate family or with the prior written permission of his supervisor;

(c) Present himself at the door of his residence at any time between 11:00 p.m. and 6:00 a.m. if the police knock at the door for the purpose of checking his compliance with this order;

(d) Make reasonable efforts to maintain employment or attend school;

(e) Abstain from the consumption of any non-medically prescribed drugs;

(f) Take such treatment or counselling as is recommended by the supervisor; and

(g) Report as required to his supervisor and sign consents to allow the supervisor access to reports from any counselling or treatment programme.

36After the expiration of the conditional sentence there will be a term of probation for two years with the same terms except that there will be no house arrest or curfew.

37On Count 5, possession of cocaine for the purpose of trafficking, I impose a concurrent conditional sentence of the same length and on the same terms.

38In addition, there will be an order under s. 109 of the Code prohibiting Mr. Luu from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for 10 years and any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life.

39In light of the nature of the offence, there will be a further order under s. 487.051 of the Code authorizing the taking of samples of bodily substances for the purpose of forensic DNA analysis.

40On consent, there will be an order that the Mr. Luu forfeit all monies seized by the police.

Forestell J.