R. v. Dallal, 2018 ONSC 715

COURT FILE NO.: CR-15-90000616-0000

DATE: 20180131

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SHLOMO DALLAL

Accused

M. Helena Solin, for the Crown

Spiro Nicolakakis, for the Accused

HEARD: November 24, 2017

B.A. ALLEN J.

REASONS FOR DECISION ON SENTENCE

BACKGROUND

1The offender, Shlomo Dallal (“Mr. Dallal”), pleaded guilty on May 23, 2017 to one count of trafficking cocaine. He was also charged with possession of cocaine for the purpose of trafficking and possession of proceeds of crime for which he did not plead guilty.

2The basic facts are that on the evening of May 17, 2013, Mr. Dallal agreed to sell a quantity of cocaine to an undercover officer. Mr. Dallal’s co-accused contacted the undercover officer. The officer contacted Mr. Dallal to arrange a meeting. Mr. Dallal drove to the meeting spot. The co-accused from the back seat of the vehicle provided the cocaine to the undercover officer. The officer passed buy-money to Mr. Dallal. Mr. Dalall, his co-accused and another passenger in the vehicle were arrested. Funds in the amount of $790.00 were found in Mr. Djetouand’s possession.

MR. DALLAL’S LIFE

3Mr. Dallal is age 65 years. He has no past criminal record or outstanding charges. He is married with two adult children. He immigrated some years ago to Canada from Israel. He had been previously married in Israel and has two other adult children there. For a number of years Mr. Dallal had a stable life. He operated a shoe business which failed several years ago. From that time Mr. Dallal has done a number of jobs such as taxi driving.

4Around 2013/2014 Mr. Dallal’s wife began to see negative changes in her husband in terms of his behaviour and his associates. He began associating with bad elements. At the same time his health began to fail. He developed benign tumours in his throat for which he has had surgery and has been prescribed medication. As a result of that condition he has difficulty speaking and vocalizing words. He underwent further surgery in September 2017 and continues to take medication. He likely faces further future surgery.

5Mr. Dallal’s wife wrote a letter of support for her husband. She indicates she sees a change in her husband’s disposition and outlook. From her point of view her husband has learned some life lessons from his experience with the criminal justice system. He understands the importance of being careful of whom he associates with. He has worked odd jobs since his arrest. Although he is of retirement age, he is planning to work with his brother in his wholesale flower business. His brother plans to take him on to work with him. Mr. Dallal is also amenable to doing community work.

AGGRAVATING AND MITIGATING FACTORS

6The mitigating factors outweigh the aggravating factors in this case. Mr. Dallal is of senior age. He has no past criminal record. He pleaded guilty, albeit just before trial, obviating the necessity of a costly criminal proceeding.

7Mr. Dallal has had surgery and still suffers from a health condition that impedes his ability to communicate with others verbally. He faces possible future surgery. He has a close and stable family life and a wife that understands his past failings and is willing to support him and help keep him on a positive path. Mr. Dallal has a prospective job opportunity in his brother’s business and is willing to keep busy with community work.

8The main aggravating factor of course is his conviction of the serious crime of trafficking in a highly addictive and heinous drug. The offence involved .95 grams of cocaine and $120.00 in proceeds.

THE PARTIES’ POSITIONS

9The Crown seeks a 30-day intermittent sentence with a discretionary DNA order. The defence seeks a conditional sentence with a one-year period of probation.

THE LAW ON SUSPENDED SENTENCES

10A suspended sentence involves the court imposing a sentence after conviction. The sentence is suspended or delayed to allow the offender to serve a period of probation which cannot exceed three years. The offender must comply with the conditions of probation. Failing compliance with the terms of probation, the offender can be sentenced for the offence of breach of probation and the suspended sentence can be revoked.

11The principles set out in the Criminal Code guide the sentencing judge in their determination of whether to impose a custodial or suspended sentence. For example, the court can rely on s. 718.2(d) which provides “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances”; and, s. 718.2(e) which provides that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.

12Drug trafficking cases have garnered special attention from the courts. The Ontario Court of Appeal has held that the appropriate range of sentencing for street level trafficking in cocaine is six months to two years less a day. Cases that involve larger quantity narcotics offences committed during probation should attract sentences at the higher end of the range: [R. v. Woolcock, [2002] O.J. No. 4927, at paras. 8 and 15, (Ont. C.A.)].

13Conditional sentences for trafficking in controlled drugs were eliminated in 2012 with amendments to the Criminal Code. With this some trial judges have imposed suspended sentences: [R. v. Thevarajah, 2016 ONSC 6739 (Ont. S.C.J.); R. v. McGill, 2016 ONCJ 138, [2016] O.J. No. 1346, at para. 61, (Ont. C.J.); R. v. Caputi, [2013] O.J. No. 6447, unreported (Ont. C.J.); R. v. Azeez, 2014 ONCJ 311,2014 ONCJ 311 (Ont. C.J.); R. v. Moniz, unreported, 2015 (Ont. C.J.); and R. v. Duncan, [2016] O.J. No. 25 (Ont. C.J.)].

14Most often courts have tended to impose a custodial sentence. It has been observed that reported cases imposing suspended sentences for an offender convicted of trafficking in Schedule I drugs like cocaine or heroin are rare: R. v. McGill, at para. [61]. In those rare cases courts have relied on the doctrine of “exceptional circumstances”.

15Exceptional circumstances have been found in cases involving the following mitigating circumstances:

• rehabilitation after arrest [R. v. Duncan, [2016] O. J. 25 (Ont. C.J.)];

• a guilty plea to trafficking in cocaine [R. v. McGill, 2016 ONCJ 138, [2016] O. J. 1346 (Ont. C.J.)];

• a guilty plea to trafficking in MDMA [R. v. Caputi, [2013] O.J. 6447 (Ont. C.J.)];

• small amounts of drugs, post-conviction sobriety and no prior convictions for some of the accused [R. v. Voong, 2015 BCCA 285, [2015] B.C.J. No. 1335 (B.C.C.A.)];

• no related record, rehabilitation, youthful offender [R. v. Dickey, [2015] B.B.J. No. 1465 (B.C.S.C.); affirmed [2016] B.C.J. No. 615 (B.C.C.A.)];

• a guilty plea and rehabilitation [R. v. Carillo, [2014] B.C.J. No. 873 (B.C.C.A.)]; and

• a guilty plea, no criminal record, good prospects for rehabilitation [R. v. Orr, [2015] B.C.J. No. 1553 (B.C.P.C.)].

16The case before me involves some of the exceptional circumstances recognized by other courts: a guilty plea to trafficking in cocaine; no prior criminal record; trafficking involving a small amount of cocaine; and good prospects for rehabilitation. Added to those factors are Mr. Dallal’s senior age and his health condition. Mr. Dallal also seems to appreciate the importance of living a pro-social life and keeping himself occupied through employment and community work.

CONCLUSION

17I find this is an appropriate case for a suspended sentence with a one-year period of probation. I believe this sentence achieves the objectives of denunciation and deterrence, parity with similar cases and proportionality of the crime to the sentence. The sentence conforms to the principle enunciated in s. 718.2(e) that “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders”.

SENTENCE

18I will now pronounce sentence. Shlomo Dallal, will you please stand?

19You have been convicted for trafficking in cocaine. You stand to be sentenced for that offence.

20I sentence you to a suspended sentence.

21I also sentence you to a probationary period of one year on the following conditions:

(a) You will keep the peace and be of good behaviour.

(b) You will appear before the court when required to do so by the court.

(c) You will notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

(d) You will report to a probation officer (i) within four working days, or such longer period as the court directs, after the making of the probation order, and (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer.

(e) You will attend for and actively participate in, and to the satisfaction of your probation officer, any assessment, treatment or counselling as required by your probation officer and you will sign whatever consents or releases as may be required by your probation officer in order to monitor and verify compliance with said assessment, treatment or counselling and you will provide written proof of completion of said assessment, treatment or counselling to your probation officer.

(f) You will attend and actively participate, and to the satisfaction of your probation officer, in 50 hours of community service at a community centre or agency as approved by your probation officer. You will provide proof of completion of said community service to your probation officer.

(g) You shall not be within 100 meters of Marcel Djetouand or any place where he resides, is employed or attends school.

(h) You will not own, possess or carry any weapons as defined by the Criminal Code.

22In addition there shall be the following ancillary order:

(a) A Criminal Code section 109 weapons prohibition for ten years.

(b) A DNA order under section 487.04 of the Criminal Code.