Her Majesty the Queen v. David D’Souza, 2017 ONSC 4380

Court File No.: CR-15-769 Date: 2017-07-20

Superior Court of Justice – Ontario

Between: Her Majesty the Queen, for the Crown Counsel: O. Melnik

And: David D’Souza, Defendant Counsel: R. Christie

Heard: July 7, 2017

Reasons for Sentence Before: M. J. Donohue, J.

Overview

[1] Mr. D’Souza stands to be sentenced after conviction on one count of possession of heroin, and one count of possession of heroin for the purpose of trafficking. Mr. D’Souza was acquitted on a charge of trafficking. The total amount seized from his auto body shop was 34.2 grams of heroin.

Circumstances of the Offence

[2] On July 17, 2013, Mr. D’Souza and his auto body shop were under surveillance by police in the street crime and drug unit. He was observed to come out of his body shop and get into a parked car on the passenger side to converse with the driver. The driver, Mr. Samra, testified that Mr. D’Souza sold him heroin in a manila envelope. Police followed Mr. Samra and arrested him. Sometime later Mr. Samra told police that he was sold the heroin by Mr. D’Souza.

[3] In search of the body shop conducted under warrant on the evening of July 17, 2013 the police found a package of heroin with dime baggies in the cabinet above the main desk in the office.

[4] A 32-gram bag of heroin was located in the pocket of a sweater hanging in the office alcove. Other indicia of trafficking were found, including a debt book on the desk, dime baggies in the desk drawer and $900 in cash which Mr. D’Souza had on his person that evening upon his arrest.

[5] It was admitted in the trial that the total of 34.2 grams had a street value of $8,208 if sold at the gram level.

[6] Mr. D’Souza explained that the sweater belonged to his employee Andres and he denied ownership of, or knowledge about, the drugs either in the sweater or the desk cabinet. He confirmed that he met with Mr. Samra in the car outside his body shop but testified that they discussed doing work on Mr. Samra’s car and they did not transact a sale of drugs.

[7] The jury found Mr. D’Souza not guilty of trafficking but guilty of the possession charges.

[8] The jury, in convicting on the possession charges must have rejected some of Mr. D’Souza’s explanations. On the basis of all the evidence, they must have found that Mr. D’Souza had knowledge and control of the drugs located in his office and possessed them.

[9] I was satisfied that his knowledge and control of the drugs was reasonably inferred from the surrounding circumstances of being located in the office he owned and at the desk where he worked.

Circumstances of the Offender

[10] Mr. D’Souza is age 58 and was born in the USA. He immigrated to Canada 25 years ago to marry his wife. They have three adult sons. He was very involved in raising their sons and encouraged sports.

[11] Mr. D’Souza graduated from the University of Maryland in 1980 from a Criminal justice program. He also got a diploma in private investigations. He worked for an American airline for a number of years. He was laid off just before the airline went bankrupt. This coincided with his move to Canada.

[12] His wife has been the breadwinner of the family. Initially Mr. D’Souza was not granted a work visa. He was a stay at home dad until their youngest child was school aged. He was not successful in his business ventures. Mr. D’Souza tried a Dive Shop, CFX Auto Collision, Miata Used Parts Shop and finally Capital Auto Collision, each of which struggled financially and did not survive.

[13] Mr. D’Souza, as confirmed by his wife, sister, and doctor, has never used illegal substances.

[14] Mr. D’Souza denies responsibility for the offences before the Court. He blames his employees. His wife and sister describe him as naïve and someone that was taken advantage of. His wife said he was a family man who cared deeply about his community. She said he has done volunteer work as well.

[15] The probation officer’s assessment was,” The subject minimizes his involvement in the offence and does not appear to accept responsibility for his actions. The subject’s approach to such serious charges was very relaxed. The subject’s sister opines that the subject “does not grasp consequences well”, which places him in dangerous situations without fully understanding how it will affect his life.”

[16] Mr. D’Souza has no criminal record.

Impact on the Victim and/or Community

[17] The Ontario Court of Appeal, in R. v Sidhu, [2009] O.J. No.325 (Ont. C.A.) 242 emphasized the danger of heroin and stated, “Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs—it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a “despicable” crime and one that “tears at the very fabric of our society.”

Legal Parameters

[18] Possession of a heroin is punishable by a maximum of seven years imprisonment.

[19] Possession of heroin for the purpose of trafficking has a maximum punishment of life imprisonment.

Positions of Crown and Defence

[20] The Crown seeks a penitentiary sentence of five years as being the range for this offender in these circumstances. The Crown seeks the ancillary DNA orders and weapons prohibition.

[21] Defence proposes a sentence of 2 years less two days as appropriate to meet the appropriate principles of sentencing in this area. The defence submitted that the range for a low level trafficker is 2 to 4 years.

Case Law

[22] The Crown relies on the following four cases: R. v. Pimentel, [2004] O.J. No. 5780 (Sup. Ct.); R. v. Van Nguyen (1997), 31 O.T.C. 132 (Ct. J. (Gen. Div.)); and R. v. Mete, [1980] O.J. No. 1438 (S.C. C.A.); R. v. Dhillon, 2017 ONSC 258.

[23] In Pimentel the offender was sentenced to four years imprisonment for possession of heroin for the purpose of trafficking and possession of the proceeds of crime. The heroin had a value of $2,300 and the offender had a lengthy criminal record. The court reviewed a number of cases of similar amounts of heroin which resulted in a range of custodial sentences ranging from 3-7 years in length.

[24] At paragraph 14 the court referred to the decision of the Ontario Court of Appeal of R. v. Belanger, [1973] O.J. No. 355 (S.C. C.A.) at para. 2:

Heroin is a pernicious and addictive narcotic. Consequently, severe sentences are imposed by the courts to deter those tempted by commercial gain from trafficking in the illicit drug. Heroin is considered a ‘hard drug’.

[25] In Van Nguyen the 28 year old offender, who had no criminal record, was sentenced to seven years penitentiary time. The charge was trafficking in 27.95 grams of heroin, sold for $6,000.

[26] In Mete the Ontario Court of Appeal reduced a sentence from twelve years to seven years for an offender guilty of trafficking in heroin of two-thirds of an ounce of heroin for $2,000. The offender had been an addict who trafficked to supply his own habit and had an extensive criminal record, including a previous conviction for trafficking in heroin.

[27] R v Dhillon, a decision of the Superior Court of Ontario, involved a 53 year old male with no criminal record convicted of trafficking in heroin involving ½ a kilogram. The court considered that the global range in those circumstances was six to nine years in jail. He was sentenced to seven years in custody less time served. The court noted that this was not a mistake of youth in light of the defendant’s age.

[28] The defence relies on the case of R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289, when the Court affirmed the trial judge’s sentence of four years’ imprisonment. The case involved 75 grams of heroin with an estimated street value of $18,000. The defence points out that this was twice the amount of drugs located in this case.

[29] The defence also relies on the case of R. v. Zamani, [1999] O.J. No. 3780 (C.A.). The accused was convicted of selling 50 grams of heroin for $5,500. The sentence imposed was 2 years less a day. The Court of Appeal noted that the trial judge could have imposed a sentence of 3 to 4 years on the facts of the case. The majority of the court deferred to the trial judge’s conclusion that the accused showed a strong potential for rehabilitation. They decided that they could not say that an imposition of a maximum reformatory term was outside the range.

[30] I note that the dissenting Judge, Charron J.A., stated that the mitigating factors of “no criminal record and a supportive wife and family” did not justify the imposition of a sentence outside of the general range.

Mitigating and Aggravating Factors

[31] There are a number of aggravating factors in this case.

[32] Because Mr. D’Souza is not a user or addict of heroin, it follows that he must have been in possession of the drugs for the purpose of making a commercial profit. This is also an aggravating factor.

[33] There are also several mitigating factors.

[34] Mr. D’Souza has no prior criminal record.

[35] Mr. D’Souza has been a loving father and husband. He is noted to be an community minded person by family. He does not abuse substances. He has good family support and loving relationships.

Right of Allocution

[36] The accused was advised of his right of allocution and he indicated that he did not wish to say anything.

Principles of Sentencing

[37] The Criminal Code sets out the purpose and principles of sentencing as follows:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, 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 the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles: (a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, (b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[38] Section 10(1) of the Controlled Drugs and Substances Act provides as follows:

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part 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.

[39] None of the aggravating factors set out in s. 10(2) of the Controlled Drugs and Substances Act apply in this case.

[40] Section 487.051(3) of the Criminal Code allows the court to make a DNA order for the circumstances of this charge on application by the prosecutor, if the court is satisfied that such an order is in the best interests of the administration of justice. In deciding whether to make the order, the court is required to consider the following: the defendant’s criminal record; the nature of the offence; the circumstances surrounding its commission; and the impact such an order would have on the defendant’s privacy and security of the person.

Reasons

[41] The most important sentencing principles in a case such as this are denunciation, and deterrence. The sentence must also be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[42] Counsel agreed that Mr. D’Souza was in the category of a “low level trafficker”.

[43] On review of the case law relied on by the defence I do not find the circumstances of Mr. D’Souza place him in any exceptional category where a sentence in the appropriate range would not be necessary. Mr. D’Souza is not an addict, he is a man of mature years, and the substance involved was heroin. Further, Mr. D’Souza had education, experience and a level of comfort in his living circumstances. He was not a vulnerable person as we often see in the court system.

[44] The sentence of four years in custody, is reasonable in light of the authorities, and takes into consideration Mr. D’Souza’s personal circumstances of being a loving father and community minded member of society. It is my decision that a sentence of four years in custody is required for the purposes of denunciation in a case such as this.

[45] An order for the taking of a D.N.A. sample pursuant to 487.051(3) is appropriate in this case.

Ancillary Orders

[46] A weapons prohibition order under s. 109(2)(a)(ii) of the Criminal Code shall issue for a period of ten years after Mr. D’Souza’s release from custody.

[47] A D.N.A. order under s. 487.051(3) of the Criminal Code shall issue.

Final Decision

[48] Mr. D’Souza is sentenced to four years in custody on each count/charge to be served concurrently, less a day for pre-sentence custody.

[49] A D.N.A. order under s. 487.051(3) of the Criminal Code shall issue.

[50] A weapons prohibition order under s. 109(2)(a)(ii) of the Criminal Code shall issue for a period of ten years after Mr. D’Souza’s release from custody.

M. J. Donohue, J. Released: July 20, 2017