R. v. Saccoccia, 2017 ONSC 5531

CITATION: R. v. Saccoccia, 2017 ONSC 5531 COURT FILE NO.: CR-16-30000059-0000 DATE: 20170918

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Crown

– and –

CHRISTOPHER SACCOCCIA Accused

Ron Krueger, for the Crown Ismar Horic, for Mr. Saccoccia

HEARD: July 21, 2017

THORBURN J.

REASONS FOR SENTENCE

1. OVERVIEW

[1] Mr. Saccoccia was convicted of possession for the purpose of trafficking heroin, cocaine and MDMA, and possession of proceeds of crime.

[2] He invited the court to find him guilty after dismissal of his Application to dismiss this proceeding for delay and dismissal of his Application to quash the search warrant because the Information to Obtain did not contain reasonable grounds to believe an offence had or would be committed.

[3] After considering the unusual circumstances of this offender, this offence, and taking into account the principles of sentencing, I find that the appropriate global sentence is thirty three months.

2. THE CIRCUMSTANCES OF THESE OFFENCES

[4] In late 2003, the Toronto Police Service began an investigation into various gangs in Toronto. Project Battery focused on the so-called “Asian Assassinz”.

[5] It is agreed that Mr. Saccoccia was not associated with the Asian Assassinz.

[6] Ken Mai was an alleged Asian Assassinz associate and a mid-level drug dealer. He used his apartment to store and traffic illegal drugs. In covert entries, police searched Mr. Mai’s apartment four times between April 23 and May 28, 2014. On each occasion they found large quantities of heroin, cocaine and marijuana. On the last occasion they found large amounts of MDMA and BZP/TFMPP.

[7] Mr. Saccoccia’s unit was in the same building and on the same floor as Mr. Mai’s.

[8] Police surveillance established that on April 3, 2014, Ken Mai visited Mr. Saccoccia’s apartment. Police therefore added Mr. Saccoccia to the investigation and installed a covert video camera outside of his apartment on April 23, 2014.

[9] Between January 30 and March 13, 2014, Mr. Saccoccia went to Mr. Mai’s apartment four times. Between May 1 and May 27, 2014, Mr. Mai went to Mr. Saccoccia’s apartment five times. Once Mr. Mai was carrying a gym bag and stayed only a minute. On another occasion he came and picked up three bottles of beer from Mr. Saccoccia. On two occasions, Mr. Mai was carrying a satchel. No actual drug transaction was observed.

[10] Based on the above information, police obtained a search warrant that was executed on Christopher Saccoccia’s unit on May 28, 2014.

[11] When police entered the apartment, Mr. Saccoccia and his then-girlfriend told police they had injected heroin at 1 a.m. that morning. New and used needles were found in the kitchen.

[12] During the search police found:

a. 84.64 grams of heroin,

b. 0.64 grams of morphine,

c. 6.56 grams of cocaine,

d. 1.77 grams of MDMA, and

e. 7.14 grams of marijuana.

[13] Police also found $21,815.00 in Canadian currency in a safe in Mr. Saccoccia’s bedroom, 112 grams of cutting agent, nine cellphones, five digital scales, a grinder and Ziploc bags.

[14] According to expert evidence, the heroin supply is worth about $9,000. If it were sold in small quantities it could be worth as much as $25,350. Mr. Saccoccia’s cocaine supply is worth about $520 to $650.

[15] The quantity of drugs seized is consistent with possession for the purpose of trafficking rather than personal consumption.

[16] After the search, one of Mr. Saccoccia’s cell phones was examined by police. Mr. Saccoccia had several phone numbers for Mr. Mai in his cell phone. There were many calls and text messages between Mr. Mai and Mr. Saccoccia that showed that they socialized on a frequent but irregular basis by drinking alcohol or smoking marijuana. There was one text message where Mr. Mai agreed to sell Mr. Saccoccia drugs.

3. INFORMATION ABOUT THIS OFFENDER

[17] Mr. Saccoccia completed high school and was a good student. After high school he worked in a technical support centre and then went back to school to study multimedia production and digital media content. He worked in this area until 2007.

[18] In 2007, he was a passenger in a vehicle struck by another vehicle that ran through a red light. Mr. Saccoccia sustained back injuries and was prescribed Oxycontin to manage his back pain. Mr. Saccoccia developed an addiction to the Oxycontin.

[19] Shortly thereafter, his father died of cancer. He and his father had a very close relationship and Mr. Saccoccia had a difficult time dealing with his death and the family was preoccupied with his father’s death.

[20] Mr. Saccoccia’s physician noticed his addictive behaviour and stopped prescribing him Oxycontin (to which he had become addicted) so he obtained it illicitly. Soon thereafter he also developed an addiction to heroin.

[21] Mr. Saccoccia’s life fell apart. Drug use dominated most aspects of his life and he was no longer able to work. At the time of his arrest, he was $30,000 in debt, his friends were addicts and he had distanced himself from his supportive family.

[22] Over the last three and one half years since his arrest in 2014, Mr. Saccoccia has made significant efforts to turn his life around.

[23] He began one-on-one counselling sessions which he says have been a revelation. He has been meeting with a social worker with Breakaway Addiction Services on a weekly basis since 2014. He also began a methadone treatment which has also proven to be successful in combatting his addiction. As part of his treatment, he is required to undergo weekly drug tests. His methadone use is now significantly reduced.

[24] Mr. Saccoccia notes that his Breakaway Addiction Services counsellor encourages slow withdrawal from drug consumption (not the sudden decision to stop his prescription to Oxycontin ordered by his previous physician).

[25] Ms. Collision, his social worker, is optimistic about his future. She also notes however that “the strain of the protracted legal process has had an observable negative impact on Christopher’s health and well-being…The prolonged nature of the legal process has made future planning nearly impossible: financial insecurity has contributed to significant stress and ambiguity about the future has interfered with making employment related decisions and plans.”

[26] For the last three and one half years Mr. Saccoccia has been on bail. There have been no breaches of his bail conditions while he has been on bail.

[27] His family advises that in the last three years, Mr. Saccoccia has significantly improved his relationship with his strong supportive family.

[28] His mother, two sisters and brother-in-law all wrote strong letters of support. In particular his brother-in-law states that,

As the only other male in the immediate family, Chris and I have bonded over these past few years. I have watched him grow from this experience and I am really starting to see the person that he truly is. We have had several discussions about these offences and he understands that he has made his mistakes, and he is incredibly remorseful. However, I believe that these acts are not a reflection of his true character, especially as I see more and more of this version of him every time we see each other. Additionally, I strongly believe that, with a fair sentencing from the court and the continued support of this family and friends, Chris can overcome his challenges and become a contributing member of society once again.

[29] Mr. Saccoccia readily acknowledged his drug consumption to police when they entered his apartment prior to his arrest. He acknowledges that he will have to fight addiction for the rest of his life but says his addiction no longer dominates his life.

[30] He has been working over the last year as an alternate taxi driver. He has removed himself from all negative influences and no longer associates with anyone addicted to or who sells drugs.

[31] He hopes to open up his own business as a tattoo artist and his family believes this to be a realistic goal.

[32] He has no prior criminal record.

4. THE PRINCIPLES OF SENTENCING

[33] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that in sentencing a person convicted of offences, the court must consider:

i. denunciation of the unlawful conduct;

ii. deterring the offender and others from committing offences;

iii. separation of offenders from society where necessary;

iv. rehabilitation of offenders;

v. reparation for harm done to victims or to the community; and

vi. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[34] In cases of drug trafficking, denunciation and deterrence are particularly important.

[35] Offenders should receive sentences similar to those accorded to similar offenders who commit similar offences. Sentences imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Sentences may be increased or reduced to account for aggravating or mitigating circumstances.

Consecutive versus Concurrent Sentences

[36] Sentences should be concurrent where, “the acts constituting the offences were part of a linked series of acts within a single endeavour”. This is a factual assessment. (R. v. G.P.W. (1998), 106 B.C.A.C. 239 (B.C.C.A.) at para. 35 and R. v. Li, 2009 BCCA 85, 2009 B.C.C.A. 85 at para 47).

The Totality Principle

[37] Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, 1983 CanLII 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para 13).

4. THE POSITIONS OF THE PARTIES

[38] It is agreed that the acts were part of a linked series of acts and that the sentences should therefore be concurrent.

[39] The Crown seeks a global sentence of seven years: seven years for possession of heroin for the purpose of trafficking, two years concurrent for possession of cocaine for the purpose of trafficking, eighteen months concurrent for possession of MDMA for the purpose of trafficking and eighteen months concurrent for possession of proceeds of crime.

[40] The Defence seeks a global sentence of two to three years.

[41] The parties agree that because of his conviction, Mr. Saccoccia must be subject to a firearms prohibition for life, a DNA order and forfeiture of the property seized by police (including the money, cellphones and drug paraphernalia).

5. ANALYSIS OF THE LAW AND CONCLUSION

[42] The most serious charge facing Mr. Saccoccia is the charge of possession of heroin for the purpose of trafficking. The courts have held that heroin is a destructive and dangerous drug. (R. v. Sidhu, [2009] OJ No 325 (CA) at para. 12 and Pushpanathan v. Canada (Minister of Citizenship and Immigration) 1998 CanLII 778 (SCC), [1998] 1 S.C.R. 982 at para. 79.)

[43] The factors to be considered when determining an appropriate sentence for drug possession for the purpose of trafficking include the quantity of drugs involved; the role the offender played; the offender’s criminal record; and whether the offender pleaded guilty. (R. v. Goncalves, 2011 ONSC 2577, [2011] O.J. No. 2029, aff’d 2012 ONCA 139, 2012 CarswellOnt 2548.)

[44] There is a considerable range in sentences imposed for trafficking heroin as evidenced in the following sample of cases:

a. A 37 year old offender with a prior criminal record that included drug offences, fraud, break and enter and driving while impaired became addicted to heroin. He had relapsed “on occasion” but he had been on the methadone program for about 9 years. When police searched his home they found 39.52 grams of heroin and 898.15 grams of cocaine. He completed his last probation term during which his reporting habits were described as “dismal” but he did abide by other conditions. He had been subject to community supervision in 1993 during which his response to supervision was described as “very poor”. He was a valued member of his family.

He was found to be a street level supplier although a digital scale was seized, there were indications of a sophisticated operation as the drugs were in the process of being packaged, there was a system used to destroy evidence and police located on his person, a substance used to cut drugs to increase the volume and thereby increase the profit. However, the court found no direct evidence of his involvement in packaging (although he was found with drugs packaged in the same design as bags in the basement.) On the conviction for possession of heroin for the purpose of trafficking, he received a sentence of two years less a day. (R. v. Goncalves (supra)).

b. A 43 year old offender with a supportive family who demonstrated strong potential for rehabilitation received a sentence of two years less a day for trafficking 50 grams of heroin. The sentence was upheld on appeal. (R. v. Zamini [1999] O.J. No 3780.)

c. A 23 year old offender who was convicted of possession for the purpose of trafficking 442 grams of cocaine, 1717 grams of crack cocaine, 694 grams of heroin and 830 grams of methamphetamine at the time he was at large on a promise to appear was sentenced to two years less a day following by two years’ probation. (R. v. Hunter [2014] B.C.J. No 2040.)

d. An offender found with 2.08 grams of heroin was sentenced to three years in the penitentiary (R. v. DaSilva, [2004] O.J. No. 4808 (SCJ).

e. An offender who trafficked 75 grams of heroin was sentenced to four years in custody. The sentence was upheld on appeal. (R. v. Anang [2016] O.J. No. 5789)

f. An offender found with 5.1 grams of heroin was sentenced to five years in the penitentiary (R. v. Pimentel, [2004] OJ No 5780 (SCJ) Hill J.).

g. An offender who trafficked 6.71 grams of heroin was sentenced to six years in the penitentiary (R. v. Bahari [1994] O.J. No. 2625 (CA).).

h. Another offender who was found guilty of trafficking 84 grams of heroin who was trafficking at a high level, whose motivation was greed and who showed no remorse, was sentenced to six years in the penitentiary (R. v. Giang Nguyen [2005] OJ No 1948, aff’d OJ No 5450 (CA)).

i. An offender found delivering 101 grams of heroin was sentenced to seven years. The offender had no criminal record, was a heroin user, and while he did not plead guilty at trial, the trial was short because a number of facts were admitted. (R. v. Dhillon [2017] OJ No 227 (SCJ)).

[45] I find that there are several important mitigating factors that suggest that Mr. Saccoccia should receive a sentence at the low end of the range:

a. Unlike any of the cases I have been provided, Mr. Saccoccia did not choose to become a drug addict. He succumbed to addiction after being prescribed Oxycontin by a physician to alleviate his back pain. Once he became addicted to the Oxycontin, there is no evidence of any steps taken to address his addiction and instead, his supply was simply cut off.

This is an important mitigating fact that is in stark contrast to those who voluntarily assume the risk of deciding to consume or sell illegal drugs for personal satisfaction and/or financial gain. (This alone, in my view warrants a sentence at the low end of the range);

b. I do not agree with the Crown submission that Mr. Saccoccia should be sentenced as a commercial level trafficker.

There is no evidence that Mr. Saccoccia earned significant sums selling drugs. He did not lead an affluent lifestyle: although he was found with drugs worth at least $9,500 and $21,850 in cash, he had no significant assets. He was renting an apartment and was $30,000 in debt.

Moreover, as in Goncalves (supra), although drug paraphernalia and a cutting agent were found and there was some evidence of a sophisticated operation, there was no direct evidence of his involvement in packaging or selling drugs. Mr. Saccoccia was a heroin addict who socialized with a neighbour who was a midlevel supplier and on at least one occasion bought some form of drugs from him. In the absence of positive evidence from which I could conclude beyond a reasonable doubt that Mr. Saccoccia was a midlevel supplier, I am obliged to draw the inference most favourable to him, namely that he was a street level seller who was an addict;

c. Mr. Saccoccia has made real efforts over a 3 ½ year period to overcome his addiction and has achieved significant success. He has addressed his addiction, sought help, separated himself from those in the drug trade, and had a rapprochement with his family who support him;

d. his family are willing and able to assist with his rehabilitation;

e. he has no prior criminal record; and

f. he invited the court to find him guilty after the dismissal of his Applications thereby avoiding trial costs.

[46] For these reasons, I find that Mr. Saccoccia’s level of moral culpability is less than the offenders in the cases cited above, and his chances of rehabilitation are excellent. Moreover, I am concerned that incarcerating him may seriously adversely affect the real progress Mr. Saccoccia has made to address his drug addiction.

[47] However, courts must impose sentences to denounce the sale of harmful drugs and deter others from selling them even when they do so in some measure to service their own drug affliction. I am also mindful of the quantity of drugs seized.

[48] For these reasons, Mr. Saccoccia is sentenced to thirty three months in custody.

[49] The sentences for the lesser offences of possession of cocaine for the purpose of trafficking, possession of MDMA for the purpose of trafficking and possession of proceeds of crime should be concurrent to the sentence for possession of heroin for the purpose of trafficking as “the acts constituting the offences were part of a linked series of acts within a single endeavour”.

[50] Mr. Saccoccia shall receive a sentence of 12 months concurrent each for possession of 6.56 grams of cocaine for the purpose of trafficking, possession of 1.77 grams of MDMA for the purpose of trafficking, and possession of proceeds of crime.

[51] Mr. Saccoccia spent two days in presentence custody and his thirty three month sentence is therefore reduced by three days.

[52] Mr. Saccoccia will also be subject to a firearms prohibition for life, a DNA order, and an order forfeiting the seized property that includes the money, cell phones and drug paraphernalia.

[53] I strongly recommend that Mr. Saccoccia be sent to a facility that has the means to provide consistent access to methadone treatment to assist him with his drug addiction and that all necessary steps be taken to ensure he is sent to a facility that has the resources to deal with his ongoing health issues.

Thorburn J.

Released: September 18, 2017

CITATION: R. v. Saccoccia, 2017 ONSC 5531 COURT FILE NO.: CR-16-30000059-0000 DATE: 20170918

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

CHRISTOPHER SACCOCCIA Accused

reasons for sentence

THORBURN J.

Released: September 18, 2017