Court File and Parties
Court File No.: CR-17-90000550 CR-17-90000285 Date: 2018-07-18 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Joshua Prestula Defendant
Counsel: Chris Walsh, for the Crown William Jaksa, for the Defendant
Heard: June 25, 2018
Before: Michael G. Quigley, J.
Reasons for Sentence
[1] On March 2, 2018, Joshua Prestula pleaded guilty before me to three counts of drug related offences. On the indictment relating to October 20, 2015 and December 7, 2015, he pleaded guilty to Count 5, possession of a number of illegal drugs for the purposes of trafficking, to trafficking in those drugs under Count 9 and to possession of $2,000 of police buy-money under Count 10. On the August 2, 2017 indictment, he pleaded guilty to Count 3 possession for the purposes of trafficking on October 27, 2016.
[2] As the chronology below shows, Mr. Prestula was a virtual pharmacy given the range of drugs he possessed for illicit sale. Most importantly, he was in possession of large quantities of cocaine, and was also in possession of a quantity of fentanyl. He was initially charged with a co-accused, Mr. Nischal, who has also pleaded guilty and been sentenced, and with another co-accused whose charges are proceeding to trial.
The Offences
[3] The arrest of the accused resulted from sales of illicit drugs he made to undercover police officers (“UC”). On October 20, 2015, officers of Toronto Police Service contacted Mr. Prestula’s co-accused and arranged to purchase cocaine. The UC went to a designated location. This offender arrived shortly thereafter driving a grey Lexus automobile. Mr. Prestula supplied a quantity of cocaine in exchange for $6,000 of police buy-money. He was not arrested on that occasion.
[4] On December 7, 2015, the UC arranged another purchase of a large quantity of cocaine. The exchange was to take place at a shopping plaza. The UC arrived at the designated location and the offender arrived shortly thereafter, again driving the grey Lexus vehicle. He handed over a half-kilo of cocaine to the UC, whereupon both this offender and his co-accused were arrested and charged. At the time of his arrest, Mr. Prestula was found to be in possession of 13.7 g of fentanyl, having a value of $870.
[5] While released on a recognizance, another UC arranged three undercover purchases of small quantities of drugs from the offender, on October 11, 19 and 20. Based on these transactions the police obtained a warrant to search Mr. Prestula’s residence. When they executed that warrant on October 27, 2016, they found Mr. Prestula in bed with his common law spouse, and seized a significant trove of illicit drugs and proceeds of crime: $32,000 Canadian, $1,687 U.S. currency, 79.41 g of soft cocaine, 81.6 g of crack cocaine, 35.5 g of methamphetamines, 145 g of a cutting agent, and a bullet proof vest. At the time he was found at that location, Mr. Prestula was supposed to be living under terms of house arrest at another residence.
[6] While defence counsel indicated he took a slightly different view of the facts, and in particular the role of Mr. Nischal in the first transactions as compared to the offender, he did agree that Mr. Prestula was involved in trafficking on October 20 and December 7.
Circumstances of the Offender
[7] A pre-sentence report was prepared, dated May 4, 2018. As defence counsel conceded, it is difficult to call it favourable, though he concedes it is accurate.
[8] Mr. Prestula had a tumultuous upbringing. He grew up without a father and was raised by his mother. He looked to his uncle as a male role model and the closest approximation to a father figure, but was severely traumatized by discovering his uncle’s dead body when he was but nine years of age. His mother was a serious alcoholic and after the uncle died, he and his mother were ostracized from the family. He was in foster care for extended periods of time during which he suffered physical, emotional and sexual abuse. He has post-traumatic stress disorder and has been diagnosed with attention deficit hyperactivity disorder.
[9] Despite these negative antecedents, while in custody he has completed his high school diploma and several college programs. He is certified as qualified in the removal of asbestos from buildings, and has been employed when not incarcerated. His previous employer, Mark Perlov, has expressed willingness to employ him again following his release.
Issues and positions of the parties
[10] The issue on this sentencing hearing is what is the fit sentence for this repeat offender, who has pleaded guilty to these very serious offences, and for whom deterrence and denunciation must be the principal sentencing factors, given his very difficult background, the arguably inhumane circumstances of a significant portion of his pre-sentencing incarceration, and his prospects for rehabilitation? Crown counsel seeks a global sentence of 6 years before credit for pre-sentence custody. Defence counsel seeks a sentence of 4 years and 9 months at the outside, and seeks enhanced credit for the extended periods of time Mr. Prestula was under complete lockdown at the Toronto South Detention Centre.
[11] As noted, the Crown seeks a global sentence of 6 years that he would see allocated as follows: 6 years for trafficking in ½ kilo of cocaine and 6 years concurrent for the possession of 13.7 g of fentanyl. In addition, the Crown seeks three-year concurrent sentences for the possession of 84.2 g of cocaine on October 20, 2015 and the drugs found during the execution of the October 27, 2016 warrant. Crown counsel refers to and relies upon the decisions in R. v. Boardman [1] , R. v. Pimentel [2] , and R. v. Leite [3] , the most recent decision dealing with possession of fentanyl.
[12] He also refers to R. v. Pham [4] , and R. v. Bahari . [5] Relative to the smaller quantities of cocaine, for which lesser concurrent sentences are proposed, he relies upon R. v. Labelle [6] , where a sentence of 3.5 years was imposed, as well as a 2.5 year probation which was struck down on appeal as an illegal sentence. In R. v. MacIntosh [7] the Court of Appeal reduced the original sentence imposed by the trial judge for possession of 108.6 g of cocaine to three years. Finally, in R. v. Bryan [8] , where the same quantities of drugs were present as in this case, a range of 5-8 years was confirmed.
[13] Based on these authorities, Crown counsel asserts that the bottom end of the range for cocaine is 5-8 years, and 5-9 years for fentanyl, however, those ranges were claimed to be for offenders without prior records, unlike this offender who has previously served seven years for his substantial prior record. Plainly that is an aggravating factor.
[14] Nevertheless, the Crown acknowledges that Mr. Prestula has from the outset taken responsibility for his conduct; he has taken responsibility for both sets of circumstances and that is a significantly mitigating factor. However, the Crown is less hopeful about Mr. Prestula’s prospects of rehabilitation. In the result, he asserts that the appropriate sentence is six years of imprisonment after taking account of mitigating factors.
[15] As noted defence counsel took a different view of the facts on the basis that the co-accused, Nischal, was the original police target, who became involved in increased sales in increasing amounts up to ½ kilo, and on two separate occasions the police surveillance observed both Nischal and Cortina, the other co-accused. In effect, it was defence counsel’s position that were it not for Nischal imposing on his friendship with Mr. Prestula and asking him to appear to be the person who was in actual possession of the drugs to protect Nischal, Prestula might not have even been involved. Nischal testified that on October 20, 2015, he had “begged” Mr. Prestula to come and collect the money for him, so that he would not get ripped off, which he was afraid of.
[16] Mr. Nischal’s criminal record is more extensive than Mr. Prestula’s, involving 9 prior drug related convictions, not including these offences. Further he has been convicted of firearm offences, of assaults and of 12 fail to comply offences, as well as fraud convictions. His record shows a total of 27 entries, yet his longest sentence before these offences was just over two years.
[17] In spite of these circumstances, and Nischal seeming to be not only the target of the police efforts but also the key organizer of the sale transactions with the UC, he has been sentenced to only 33 months of incarceration, less than half of the 72 months sought by the Crown for Mr. Prestula. Based on these circumstances, Mr. Jaksa entreats the court to pay strong attention to the parity principle. He says that the lesser role of this offender should not command a greater sentence for the 2015 offences than that imposed upon his more involved co-accused. Mr. Jaksa is seeking a sentence of 18-24 months on those offences.
Pre-Sentence Custody
[18] Mr. Prestula had spent 675 days in custody prior to the sentencing hearing. He is entitled to one and a half days credit for each of those days, for a total of 33 months of basic pre-sentence custody credit.
[19] However, the defence gave notice as well of his intention to seek enhanced credit. The foundation for this is that of the total time Mr. Prestula has been incarcerated, up until April 5, 2018 when the report from corrections was produced, 203 days or 34.23% of his time in custody has been spent in conditions of total lockdown. Not only that, but on 47 occasions those lockdowns have continued for more than one day. Indeed, I was advised that in December 2017, 21 out of the 31 days in the month were in total lockdown.
[20] These are inhumane conditions. Prisoners are unable to wash or shower or have exercise. They are confined to their cells. This cuts inmates off from their families and increases their sense of isolation. I accept defence counsel’s submissions on this issue that this will have created real hardship and increased anxiety for this offender given his pre-existing medical conditions. It cannot help but have had a compounding effect on his anxiety disorder, as has been noted by Ms. Sott, causing him to effectively become numb and shut down communications to survive the lengthy periods of unrelieved containment.
[21] Accordingly, in addition to 33 months of credit, Mr. Prestula will receive an additional 7.5 months of enhanced credit based on these unfortunate conditions. As well, he will receive 35 days (23 days x 1.5), ie 5 weeks of further credit accumulated since the hearing, enhanced by 12 days of Downes credit. As such, I am crediting him with a total of 42.5 months of pre-sentence custody.
Sentence
[22] In a case like this, involving significant quantities of serious drugs, including cocaine, crack cocaine and most serious of all, fentanyl, which is causing untold deaths across this nation, it is plain that the most important sentencing factors are denunciation and deterrence. Before the most recent development of our national opioid crisis, heroin was the most serious of the street drugs, and commanded the most severe sentences, but that special status has now been taken over by the insidious and life threatening proliferation of fentanyl being available on the streets of this country, and this city, in ever increasing quantities.
[23] Against that background, I accept that the global sentence that must be imposed on this offender before credit, must be at least five years of imprisonment. However, there are a number of factors that cause me to conclude that in these circumstances, the six-year sentence sought by the Crown is somewhat higher than is required. The factors that cause me to reach that conclusion are (i) Mr. Prestula’s medical afflictions, (ii) his clear and unequivocal expression of remorse and taking responsibility for his conduct, (iii) his intention to resolve this matter with a plea from the outset, even though only taken more recently, (iv) his strong and direct expression to me of his determination brought on by these events to turn his life around, as reflected in the personal letter he wrote and which was filed as an exhibit on this hearing, (v) his mother’s plain need to have him back with her to help her as soon as possible, and (vi) the potential prospects for his rehabilitation, with his former employer willing to again take him on for gainful employment.
[24] On the other hand, I accept that the aggravating factor of his prior criminal antecedents prevents him from being eligible for the lowest level of sentence in the appropriate range.
[25] Having considered all of those factors, Mr. Prestula, I sentence you to a global sentence of five years and three months imprisonment (63 months), five years and three months for possession of the ½ kilo of cocaine, five years and three months concurrent for the possession of fentanyl, and two and a half years (30 months) concurrent for each of the October 20, 2015 and October 27, 2016 offences. After granting you 42.5 months of pre-sentence custody credit, for reasons set out above, I thus sentence you to serve a remaining sentence of 20.5 months. You will also be subject to a DNA order and a section 109 weapons prohibition order for life.
[26] Mr. Prestula, this is the most lenient sentence I have found I am able to impose upon you. I do so in the belief that the words you spoke to me at this sentencing hearing in June came from your heart, and that you will have the courage to mark this as a point of departure in your life to turn and walk the other road. I believe you are capable of doing this with effort and fortitude. I wish you well as you start down that road, and sincerely hope that you will not reoffend and disappoint the faith I have placed in you today and your prospects for rehabilitation.
Michael G. Quigley, J.