COURT FILE NO.: CR-20-10000327-0000
DATE: 20210325
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
her majesty the queen
- and -
WILLIAM DATTA
Accused
Ms. E. Pancer, for the Crown
Mr. H. Aly, for the Mr. Datta
HEARD: February 26, 2021
M. FORESTELL J.
REASONS FOR SENTENCE
1. History of the Proceedings
[1] William Datta was convicted of firearms and drug offences on October 5, 2020 after a trial by judge and jury.
[2] The matter was adjourned for sentencing. Submissions were made on February 26, 2021 on an application to stay proceedings and on sentencing. In separate reasons, I dismissed the application to stay the proceedings. These are my reasons for sentence.
2. Circumstances of the Offences
[3] Mr. Datta was found guilty of two counts of trafficking in firearms (Counts 1 and 2); two counts of possessing a firearm for the purpose of trafficking (Counts 3 and 4); possession of proceeds of an indictable offence (Count 6); two counts of possession of cocaine for the purpose of trafficking (Counts 7 and 9) and two counts of possession of fentanyl for the purpose of trafficking (Counts 8 and 10).
[4] The circumstances of the firearms offences are that Mr. Datta sold two firearms to an undercover officer. He arranged to sell the guns to the undercover officer through another man, Alan Cunningham. On October 17, 2018, Mr. Datta drove to the parking lot of a plaza. Mr. Cunningham met him in his car with the money from the undercover officer. Mr. Datta gave Mr. Cunningham a bag containing four guns. The undercover officer was invited by Mr. Cunningham to choose two of the guns. The officer chose a Smith and Wesson and a Steyr handgun. The cost of the two guns was $7,500.00. After the transaction was complete, Mr. Datta left the plaza parking lot with the $7,500.00 and the two remaining guns, another Smith and Wesson and a revolver.
[5] On November 1, 2018, search warrants were executed on the Acura and the residence of Mr. Datta. Mr. Datta was arrested after he entered the silver Acura. When officers searched the Acura, they located 121.95 grams of crack cocaine and 122.25 grams of fentanyl in the centre console. They also located a bag containing eight rounds of ammunition. Officers also located 24.52 grams of crack cocaine and 3.45 grams of fentanyl in the front pouch of the sweatshirt Mr. Datta was wearing.
3. Circumstances of the Offender
[6] Mr. Datta is 44 years old. He is single and has no children. He did not finish high school and has not held consistent employment in the years since he left school.
[7] His criminal record is largely dated and consists of a 2000 conviction for trafficking in a Schedule I substance, a 2003 conviction for failing to comply with a recognizance, a 2004 conviction for possession of a Schedule I substance and 2017 convictions for failing to stop for police and obstruct police.
[8] The Pre-sentence Report provides information about Mr. Datta’s early life. It is reported that he was the victim of physical abuse at the hands of his father. His father died when he was 15 years-old and he was raised by his mother. Mr. Datta’s mother remains supportive of Mr. Datta. In addition to his mother, Mr. Datta has friends in the community, including a surety who provided him with employment opportunities while awaiting trial.
[9] As summarized by the probation officer who prepared the Pre-sentence Report in this case: “[Mr. Datta] was raised in a home characterized by violence, emotional abuse, and alcohol abuse. Based on information received, it appears that [he] often left the familial home to escape the violence and sought comfort from peers who were often older than him and may have been engaged in some pro-criminal behaviour. [His] father passed away when he was 15 years-old, and he was raised and supported by his mother since that time; however, the absence of safe home environment and positive male role model during the subject's pivotal developmental years may have led to [him] being more susceptible to negative peers influences.”
4. Positions of the Parties
[10] The Crown submits that a global sentence of 13 years’ imprisonment, before credit for pre-sentence custody and strict bail, is appropriate. The Crown’s position is that the offences call for sentences that would add up to 17 years, but that the principle of totality should be applied to reduce the sentence to 13 years.
[11] The position of the defence is that a global sentence of seven to nine years’ imprisonment is sufficient to satisfy the objectives of denunciation and deterrence. Counsel for Mr. Datta also submits that Mr. Datta should receive credit for pre-trial custody and for the two years and seven days that he spent on a restrictive house arrest bail.
5. Analysis
[12] The fundamental purpose of sentencing, as set out in the Criminal Code, is to ensure respect for the law and to promote a just, peaceful and safe society. The imposition of just sanctions requires me to consider the sentencing objectives which include denunciation, deterrence, rehabilitation, the promotion of responsibility and the acknowledgement of the harm which criminal activity brings to our community. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[13] In offences such as those before me, the paramount sentencing objectives are denunciation and deterrence. Our courts have repeatedly commented on the proliferation of guns in our community and the danger to the community from increased gun violence. The courts have stated that severe and exemplary sentences are required to deter gun violence.
[14] Similarly, denunciation and deterrence are paramount considerations for the offences of possession of crack cocaine for the purpose of trafficking and the possession of Fentanyl for the purpose of trafficking. Fentanyl, in particular, is an extremely dangerous drug that is addictive and deadly.
[15] Firearms offences and drug offences are serious and dangerous when considered independently, and so the combination of the two is a further aggravating circumstance.
[16] Mr. Datta was engaged in a commercial enterprise selling guns and dangerous addictive drugs. He put the lives of others at risk in order to make a profit. The offences committed by Mr. Datta merit a severe sentence.
[17] I recognize however, that rehabilitation remains an objective that I must consider. Mr. Datta is not a first offender, but his record is dated and his prior convictions much less serious than the offences before me. Mr. Datta had a difficult upbringing marked by violence in his home. He has expressed a desire to upgrade his education. I note however, that he took no steps to do so during his time on bail. Mr. Datta has been on probation in the past and has been on bail with no issues for a lengthy period of time. I find that Mr. Datta has some limited prospects for rehabilitation.
[18] A further consideration in determining the appropriate sentence is the range of sentence for each of these offences.
[19] For the offences of possession of crack cocaine for the purpose of trafficking in the amounts and circumstances found in this case the range of sentence is three to four years. This takes into account the quantity of cocaine, the purely commercial nature of the enterprise and the circumstances of Mr. Datta.
[20] The offences of possession of Fentanyl for the purpose of trafficking attract a sentence in a higher range because of the profound impact of this drug on our community. The Court of Appeal for Ontario has not established a range of sentence for this offence but has indicated that generally, even first offenders who are involved in trafficking significant amounts of Fentanyl should expect to receive significant penitentiary sentences.[^1] In recent cases sentences in the range of seven to eight years have been imposed for possession of Fentanyl for the purpose of trafficking in similar amounts to those in this case.[^2]
[21] The offences of trafficking in firearms and possession of firearms for the purpose of trafficking each warrant a sentence in the range of three to five years.
[22] The sale of the two guns to the undercover officer and the possession of an additional two guns for the purpose of selling them, in principle, should be consecutive to each other as they represent separate transactions.
[23] The co-accused in this case, Mr. Cunningham, who facilitated sales of guns to the officer on three occasions, including the sale that is the subject of this charge, received a sentence of nine years’ imprisonment after pleading guilty.
[24] The firearms offences and the drug offences in this case arise out of separate and distinct events. Separate transactions ought to result in consecutive sentences if the result is a total term that is not unduly long or harsh.[^3]
[25] If I imposed sentences in the ranges set out above and made them consecutive to each other, as set out above, it would result in a global sentence in the range of 13-18 years’ imprisonment before credit for presentence custody and strict bail. The principle of totality requires that I ensure that the total sentence imposed does not exceed the offender’s overall culpability.[^4] I must ultimately look at the overall sentence and apply the principles of proportionality and restraint. A sentence of 13 or more years for this offender would be excessive and is not necessary to achieve the paramount objectives of denunciation and deterrence.
[26] I have concluded that a sentence of 11 years meets the relevant sentencing objectives.
[27] Mr. Datta spent 110 days in pretrial custody and is entitled to credit of 165 days for that time in custody. Mr. Datta was on a strict house arrest bail after he was released from custody. He was permitted to leave the house with his surety to attend work. I have no evidence before me as to any specific hardship resulting from the strict bail. The Crown concedes that some credit should be given for the time spent on bail but submits that it should be limited. In my view, credit of 60 days should be given. This brings the total credit for pre-trial custody and bail to 225 days.
[28] The sentence I impose is a global sentence of 11 years, broken down as follows:
Count 1: trafficking in a firearm (Smith and Wesson) – 5 years’ imprisonment;
Count 2: trafficking in a firearm (Steyr) – 5 years’ imprisonment concurrent to all other sentences;
Count 3: Possession of a firearm for the purpose of trafficking (revolver) – 4 years’ imprisonment concurrent to all other sentences;
Count 4: possession of a firearm for the purpose of trafficking (Smith and Wesson) – 4 years’ imprisonment concurrent to all other sentences;
Count 6: possession of proceeds – 1 year imprisonment concurrent to all other sentences;
Count 7: possession of cocaine for the purpose of trafficking (centre console, 121.95 grams) – 3 years’ imprisonment concurrent to all other sentences;
Count 8: possession of Fentanyl for the purpose of trafficking (centre console, 122.25 grams) – 6 years’ imprisonment before credit for presentence custody — 110 actual days credited at 1.5:1 for 165 days and credit for strict bail of 60 days for a total credit of 225 days. The sentence remaining to be served on this count is 5 years and 140 days and this sentence is to be served consecutive to all other sentences;
Count 9: possession of cocaine for the purpose of trafficking (on his person, 24.52 grams) – 1.5 years’ imprisonment concurrent to all other sentences;
Count 10: possession of Fentanyl for the purpose of trafficking (on his person, 3.45 grams) – 2 years’ imprisonment concurrent to all other sentences.
6. Conclusion
[29] The total sentence is 11 years before credit for presentence custody and strict bail. The credit is for a total of 225 days. The sentence remaining to be served is 10 years and 140 days.
[30] In addition,
There will be a prohibition order under s. 109 of the Criminal Code prohibiting Mr. Datta from possessing any firearm, restricted weapon, ammunition or explosive substance for life.
The firearms and drug charges are secondary designated offences. Taking into account the seriousness of the circumstances of the offences and given the minimal intrusion on Mr. Datta’s privacy, it is in the interests of the administration of justice to make a DNA order under s. 487.051(3). I therefore order that Mr. Datta is required to provide such number of samples of bodily substances that are reasonably required for the purpose of forensic DNA analysis.
The firearms and ammunition shall be forfeited.
M. Forestell J.
Released: March 25, 2021
COURT FILE NO.: CR-20-10000327-0000
DATE: 20210325
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
her majesty the queen
Respondent
- and -
WILLIAM DATTA
Applicant
REASONS FOR SENTENCE
M. Forestell J.
Released: March 25, 2021
[^1]: R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 (C.A.)
[^2]: R. v. Leite, 2018 ONCJ 132; R. v. Smyth, 2019 ONCJ 81, [2019] O.J. No. 813
[^3]: R. v. McArthur, 2008 BCCA 47, [2008] B.C.J. No. 280 (B.C.C.A.), at para. 15
[^4]: R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100