R. v. LOURENCO 2017, ONSC 7606
COURT FILE NO. CR-16-113
superior COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
SERGIO LOURENCO
R E A S O N S F O R S E N T E N C E
GIVEN BY THE HONOURABLE JUSTICE DI TOMASO
on NOVEMBER 6, 2017 at BARRIE, Ontario
Appearances:
C. Noordegraaf Counsel for the Federal Crown
R. Yasskin Counsel for Sergio Lourenco
superior COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
No Witness Examinations
Transcript Ordered....................... November 6, 2017
Transcript Completed..................... December 22, 2017
Ordering Party Notified.................. December 22, 2017
MONDAY NOVEMBER 6, 2017
R E A S O N S F O R S E N T E N C E
DiTOMASO, J. (Orally):
OVERVIEW
After trial by judge and jury, Mr. Lourenco was found guilty on August 8, 2017 of three counts of trafficking in cocaine and one count of simple possession of cocaine in contravention of the Controlled Drugs and Substances Act. A sentence hearing was conducted on October 5, 2017 with sentence to be imposed today.
THE FACTS
(a) Circumstances of the Offences
Mr. Lourenco operated a pizza shop in LeFroy, Ontario. He was the subject of an undercover operation involving three separate police services. Mr. Lourenco sold cocaine to two different undercover officers with the Ontario Provincial Police. On three separate occasions, he sold a quantity of approximately three grams of cocaine; one gram on each occasion. He was also convicted of simple possession of cocaine in the amount of one ounce.
(b) Circumstances of the Offender
Sergio Lourenco is 57 years of age.
He is not married but has been involved in three long term relationships. He has eight children and maintains contact with five of them. His current common law partner of ten years claims that the couple share a good relationship and that she is anxious for him to return home to better tend to his health issues. He suffers from a respiratory ailment, namely, Chronic Obstructive Pulmonary Disease (COPD) and is currently on medication.
A pre-sentence report was obtained concerning Sergio Lourenco. The pre-sentence report discloses that Mr. Lourenco has a previous criminal record. His last conviction was in 2004. He has served time in jail with probation as a result of some of his convictions. None of his prior convictions involve drugs. While he is not a first offender, he has no previous convictions in respect of drug offences and his criminal record is a dated one.
By way of family background, Mr. Lourenco was and is close to his family. He cares for his elderly mother and father. He enjoys a good relationship with his siblings and with some of his children who are now adults.
He left high school in grade ten to work fulltime. He was employed steadily as a farm worker, approximately ten years. After that he started his own landscaping business and drove truck. He then went on to operate his pizza business in Lefroy.
Mr. Lourenco became a patched member of the Para-Dice Riders for approximately fifteen years. According to Mr. Lourenco the Para-Dice riders "patched over" to Hells Angels. He was a member of the Hells Angels for approximately five years before "retiring".
By way of education, he left high school at the age of fifteen to begin working full-time. Over the years, he has worked steadily at a variety of occupations. However, since he was involved with the current offences, he has not worked since June 2014.
Mr. Lourenco does not suffer from any substance abuse or addiction issues. The pre-sentence report was marked as Exhibit 1 on the sentence hearing.
Marked as Exhibit 2 on the sentence hearing was the Defence sentencing brief. The brief set out a number of medical reports which indicate that Mr. Lourenco suffers from COPD. The brief also indicated that he was to make appointments for checkups for lung cancer and colon cancer, as well as for physiotherapy to his hamstring. There is no evidence of any medical opinion or diagnosis in respect of Mr. Lourenco having either lung cancer or colon cancer. The brief indicates that he has and does take a number of medications for his respiratory ailment.
The brief also contains letters of reference from family members, his common law partner, friends and work colleagues. I have read all of these letters which show Mr. Lourenco to be a caring son, sibling, and friend. He is devoted to his family, especially his elderly father and mother. The letters show that Mr. Lourenco was a hardworking man. He was also a sharing person with friends and neighbours. His common law partner has also indicated that she wishes to reunite with Mr. Lourenco and after his sentence is served wishes to move with him to Orillia. The letters show that Mr. Lourenco also has the benefit of a close and supportive family.
LEGAL PARAMATERS
Due to the nature of the offences for which Mr. Lourenco was convicted, a conditional sentence of imprisonment is not available to him. The offences for which he was convicted are serious pursuant to the Controlled Drugs and Substances Act. Pursuant to a s. 5(3)(a) of the Act a conviction for trafficking in cocaine carries a maximum sentence of imprisonment for life. Pursuant to s. 4(3)(a) of the Act, a conviction for simple possession of cocaine carries a maximum sentence of imprisonment for seven years. There is no question that these offences are extremely serious.
POSITION OF THE CROWN AND THE DEFENCE
Position of the Crown
The Crown submits that the range of sentence for these offences is eight months per each trafficking count, for a total of 24 months, reduced by four months to 20 months upon the application of the totality principle. In addition to the 20 months for trafficking cocaine, there ought to be a term of imprisonment of two months for a global term of imprisonment of 22 months. Further, there are the following ancillary orders:
(a) a section 109 weapons prohibition order for ten years;
(b) a DNA order;
(c) a probation order for two years with conditions.
The Crown agrees that there ought to be credit given to Mr. Lourenco for time served in pre-sentence custody. The Crown does not agree that Mr. Lourenco should be entitled to any additional credit in accordance with the principles set out in R. v. Downes, [2000] O.J. No. 555.
Position of the Defence
The Defence submits that a custodial sentence in the range of 9 to 12 months followed by two years of probation would be an appropriate sentence. In addition, Mr. Lourenco should receive credit on a 1.5:1 basis for pre-sentence custody. The Crown agrees to this credit in the amount of 104 days to August 8, 2017 representing 69 days. When served at a rate of 1.5:1, the number of days agreed upon is 104 days. Mr. Lourenco would also be entitled to pre-sentence custody from August 9 to November 6, 2017 inclusive, representing an additional 90 days at the enhanced credit of 1.5:1.
The Defence further submits that the principles set out in Downes apply and a further credit between three months and 25 days to five months and 22 days is sought.
As for ancillary orders, there is no dispute in respect of the orders sought by the Crown.
REVIEW OF RELEVANT CASE LAW
Both the Crown and the defence submitted case briefs. I have reviewed all of the authorities submitted by both sides. Neither side was able to provide me with cases that were on all fours with the case before me. That is understandable. Each side presented cases which were illustrative of legal principles involved in these kinds of offences. Sentencing depends on the specific facts of each and every case. To a very large measure, sentencing is tailor-made to the offence and the offender.
The Defence relied upon the following cases: R. v. Sawh, [2016] ONSC 7797, R. v. Pinnock, [2013] ONSC 3114, R. v. Bray, [2013] ONSC 1536.
These cases are somewhat dissimilar to the case at bar. Mr. Lourenco does not suffer from any drug addiction which could be considered by the court as a mitigating factor. The cases cited by the Defence were at the low end of the spectrum in respect of sentencing. The sentences included incarceration followed by probation.
The Crown produced two authorities as follows: R. v. Woolcock, [2002] O.J. No. 4927 (C.A), R. v. Berry, {2011} ONSC 8016.
In Woolcock, the Court of Appeal reduced the appellant's sentence to 15 months in prison for trafficking crack cocaine and his conviction on the charge of possessing marihuana was quashed. The appellant's personal circumstances, plus the fact that he had no criminal record until middle age, made it possible that he would reform.
In Berry, Mr. Berry was found guilty of two counts of trafficking marihuana and cocaine. Mr. Berry was sentenced to a custodial term of three years in relation to the cocaine related charge and to a custodial term of two years in relation to the cocaine related charge and to a custodial term of two years in relation to the marihuana charge. The sentences were to be served concurrently.
The cases cited by the Crown assisted in identifying a range for sentencing regarding these drug offences.
AGGRAVATING AND MITIGATING FACTORS
Aggravating Factors
The aggravating factors in this case are as follows:
● Mr. Lourenco was trafficking in cocaine, which is a dangerous substance and which threatens the safety and health of our community.
● Mr. Lourenco trafficked in cocaine for profit, oblivious to the harm that such a powerfully addictive substance was to those who consume this hard drug.
● Mr. Lourenco was involved in repeated transactions where he sold cocaine from his pizza shop, the sale of which was a commercial enterprise which exposed his community to cocaine.
● He engaged in an ongoing criminal enterprise over a period of at least several months.
Mitigating Factors
There are few mitigating factors in this case:
● Mr. Lourenco has a criminal record, although that record is dated and does not relate to drug offences;
● He was on bail for a considerable period of time during which he was under strict house arrest and wore an ankle monitor for 687 days;
● During the time he was on bail, he strictly complied with his conditions of bail and there were no reports of Mr. Lourenco being non-compliant;
● He is supported by his family. He enjoys a close relationship with his family members, friend and ex-common law partner;
● While Mr. Lourenco is not a youthful offender, he is not beyond rehabilitation.
Remorse
While absence of remorse is not an aggravating factor, I find that there was an absence of remorse on the part of Mr. Lourenco. Nothing in his pre-sentence report indicates that he was remorseful for what he had done. When he was asked to speak to sentence, he did not say anything at all which would indicate remorse for what he had done. Such lack of remorse speaks to his lack of insight for his conduct and failure to assume responsibility for what he has done.
In all of the circumstances of this case, I find that the aggravating factors far outweigh any mitigating factors.
PRINCIPLES OF SENTENCING AND REASONS
The fundamental purpose of sentencing as set out in s. 718 of the Criminal Code, is to "contribute, along with the 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 and the harm done to victims or to the community that is caused by 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 acknowledgement of the harm done to victims or to the community."
Section 718.2(a) of the Criminal Code requires the court to consider any relevant aggravating and mitigating circumstances, including evidence that the offence had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation.
Sentencing necessarily involves a balancing of specific and general deterrence with the rehabilitation of offenders.
Mr. Lourenco has been convicted of serious drug offences which he committed while in his fifties. He had a prior criminal record but that record was not related to drug offences. He still has the capacity to be a productive member of society. There are a number of people who see him in that light.
However, in balancing the sentencing factors, Mr. Lourenco's rehabilitation is secondary to the principles of deterrence and denunciation. General deterrence requires a custodial sentence which will convey the appropriate message to the community at large that Mr. Lourenco's conduct is to be condemned and attracts a sentence of imprisonment.
Specific deterrence and denunciation speaks directly to Mr. Lourenco's criminal conduct which deserves the condemnation of society.
I find that Mr. Lourenco's criminal conduct attracts the range of sentence proposed by the Crown.
I have also considered Mr. Lourenco's ill health. I note that he does suffer from COPD which is treated by way of medications. There is no evidence that his respiratory illness cannot be managed while in custody. There is no evidence that Mr. Lourenco suffers from any form of cancer.
In my view, taking all of the factors into consideration, such as the circumstances of the offence, the circumstances of the offender, impact on the community, positions of the Crown and Defence, review of relevant case law, aggravating and mitigating factors principles of sentencing, I find the Crown's position regarding the range of 22 months to be the fit and appropriate penalty.
SENTENCE
Global Sentence
For these reasons, I find that a global sentence for Mr. Lourenco's convictions is as follows:
(1) For the three convictions of trafficking cocaine, 20 months;
(2) For the conviction of simple possession of cocaine, two months consecutive to the trafficking convictions;
(3) For a total of 22 months.
Enhanced Credit
As agreed by the Crown and the Defence, Mr. Lourenco shall receive enhanced credit of 104 days representing 69 days served in pre-sentence custody at an enhanced rate of 1.5:1 for a total of 104 days to and including August 8, 2017.
In addition, Mr. Lourenco shall receive enhanced credit for the period August 9, 2017 to November 6, 2017 inclusive, being 135 days representing 90 days served in pre-sentence custody at an enhanced rate of 1.5:1 for a total of 135 days.
Accordingly, the total enhanced credit for pre-sentence custody is a total of 239 days.
The Downes Principle
The Crown submits that Mr. Lourenco is not entitled to any additional credit applied to his sentence. If the court decides that any credit would be appropriate, the Crown submits that three months and 25 days would appropriate in this case.
The Defence submits that Mr. Lourenco, given his lengthy bail during which time he wore an ankle bracelet, is entitled to credit between three months and 25 days and five months and 22 days.
I find that for 687 days, Mr. Lourenco was under strict conditions limiting his liberty. He wore an ankle bracelet during that time. During that time he was fully compliant. Granting any credit in light of the principles in R. v. Downes, [2006[ O.J. No. 555 is entirely within the discretion of the court. I am of the view that said discretion ought to be in exercised in favour of Mr. Lourenco. I find that a further credit of four months and six days (126 days) is appropriate in all of the circumstances.
Mr. Lourenco, please stand. For the convictions of trafficking cocaine I impose a sentence of 20 months. I further impose a sentence of two months of imprisonment for conviction of simple possession of cocaine to be served consecutively, for a total global sentence of 22 months.
From the global sentence is deducted the enhanced credit for pre-sentence custody on a 1.5:1 basis totalling 239 days. Further, you shall receive an additional credit of four months and six days (126 days).
The total credit that you will receive is 239 days plus 126 days for a total of 365 days or 12 months. The net sentence to be served in reformatory is ten months (22 months, less 12 months = 10 months).
Ancillary Orders
In addition, I am ordering that Mr. Lourenco provide a DNA sample under s. 487.051 of the Criminal Code, as well as a weapons prohibition for ten years pursuant to s. 109 of the Criminal Code.
In respect of probation, Mr. Lourenco will serve a term of two years of probation following his release from custody with the statutory conditions and further conditions that he:
Abstain from the purchase, possession and consumption of unlawful drugs or substances;
That he not be in possession of drug paraphernalia, including digital scales;
That he not associate with anyone known to him to have a criminal record or engaged in criminal activity;
That he report to a probation officer as directed;
That he find and maintain suitable employment.
Please be seated.
FORM 2
Certificate of Transcript
Evidence Act, subsection 5(2)
I, Shannon Heryet, certify that this document is a true and
accurate transcript of the recording of R. v. Sergio Lourenco in
the Superior Court of Justice, held at 75 Mulcaster Street,
Barrie, Ontario, taken from Recording
No.(’s)3811_03_20171106_091205_10_Ditomso.dcr which has been
certified in Form 1.
December , 2017 __________________________________
Shannon Heryet - ACT #3389634078