COURT FILE NO.: CR-20-0184-00
DATE: 2022-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Kozak, for the Crown
- and -
DAVID HUI
G. Joseph, for the Accused
Accused
HEARD: July 6, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Reasons for Sentence
Overview
[1] On April 22, 2022, I found Mr. Hui and Mr. Saboon guilty of the kidnapping of and first degree murder of Lee Chiodo.[^1]
[2] Section 745 of the Criminal Code provides that the sentence for a person convicted of first degree murder shall be imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence.
[3] Section 279(1.1) of the Criminal Code provides that the sentence for a person convicted of kidnapping, if a restricted firearm or prohibited firearm is used, is a minimum punishment of imprisonment for a term of imprisonment for five years up to a term of imprisonment for life.
[4] On June 22, 2022, I sentenced Mr. Saboon to life imprisonment without eligibility for parole for 25 years for the first degree murder conviction. I also sentenced him to a concurrent life sentence for the kidnapping conviction[^2].
[5] Although the circumstances of the offences and the victim impact are the same, the circumstances of the offenders are different.
The Facts
Circumstances of the Offence
[6] The circumstances of the offence are as set out in in my decision of April 22, 2022.
[7] This was a cold blooded kidnapping and murder, motivated by greed and profit in the drug trade. Mr. Chiodo was taken to a remote area of the city and shot in the back of the head while he was lying face down and defenceless.
Circumstances of the Offender
[8] David Hui is 51 years old. He is a high school graduate and has completed some post-secondary education. According to his counsel, Mr. Hui has worked since he was 15. He became the manager of a restaurant at 19, also became a bartender, and eventually worked his way up to management of the bar which he later owned for 10 years. In 2001 he sustained a serious injury in a motorcycle accident and, unfortunately, became addicted to the pain medication he was prescribed. That addiction led to the loss of his business, his then fiancée, and depression. Another girlfriend committed suicide and that added to his depression and compounded his addiction.
[9] His criminal record consists of three convictions for possession of drugs between 2013 and 2015 for which he received fines and a 2016 conviction for assault causing bodily harm for which he received a suspended sentence and probation for 12 months. Mr. Hui has never been sentenced to imprisonment. According to counsel, Mr. Hui had a “spotless” record while in custody and, filed as exhibits, were seven certificates for courses completed through the Thunder Bay District Jail Chaplaincy.
[10] Four letters of support were filed on behalf of Mr Hui from a former romantic partner, a university professor, a high school teacher who he helped when she was young, and his mother. All spoke very highly of Mr. Hui’s personality, and I accept that their opinions as genuine.
[11] His former romantic partner said that “Once upon a time Dave was a different man, a man I believe is still in there.” She described that man as “decent, intelligent, warm and compassionate.”
[12] The university professor described Mr. Hui as a “kind man who is generous with his time in helping others.” He opined that Mr. Hui’s involvement with drugs began with back injuries sustained in a motorcycle accident many years ago. He said that he believes that, “despite his present circumstances, David has a future.”
[13] The high school teacher described how Mr. Hui assisted her when she was a young teenager working at the restaurant that he managed and going through significant family and personal issues. She said that, “when I was floundering on my own, vulnerable and with few resources, Dave was the one caring adult I needed.” She described him as “patient, kind, empathetic, and more than willing to go out of his way to make a positive difference in another person’s life.” She concluded by saying:
This is the Dave Hui I know. It might be a juxtaposition to the Dave Hui you are asked to sentence, but know that in the mess that his life became because of addictions and layers of damage I know nothing about, my Dave exists too.
[14] His mother told me of Mr. Hui’s physical and mental health issues. The physical issues include arthritis and pain from a serious motorcycle accident about 20 years ago. At present, he suffers from pain, high blood pressure, depression, and insomnia. The loss of a business and a girlfriend to suicide had a profound impact on him she said. Throughout, she said that her son continues to be “the positive, friendly, caring and helpful person he always is”.
[15] These letters of support emphasize the dangers posed to all by addiction and the drug trade and how lives can be darkened and destroyed by addiction and involvement in drug crime.
Impact on the Family of the Victim and the Community
[16] Victim impact statements were received from Lee Chiodo’s brother Peter on behalf of, their sister Elizabeth, and other family members and friends and from Mr. Chiodo’s mother, Sandra Hay. I repeat what I said at the time of Mr. Saboon’s sentencing.
[17] Lee Chiodo was described as a “gentle soul” who would never resort to violence. Although he struggled with addiction, he was fighting to get off drugs and, a week before his death, he had attempted to reach out to be placed in a rehab facility. His sister had to take a semester off from university because of the stress and trauma caused by his murder.
[18] His mother is suffering from anxiety, depression, and panic attacks. She fears for her safety. She said: “you don’t know what pain is until you know the light has gone out of the eyes of someone that you love.”
[19] I thank Mr. Peter Chiodo and Ms. Sandra Hay for sharing their victim impact statements with me.
[20] I cannot begin to comprehend the grief, stress, and trauma felt by Mr. Chiodo’s family and friends.
[21] These crimes and Mr. Chiodo’s death are evidence of the scourge of gun and drug crime that is infecting this city and this region.
Statement of Mr. Hui
[22] Mr. Hui did not wish to address the court.
Legal Parameters
[23] Section 745 of the Criminal Code provides that the sentence for a person convicted of first degree murder shall be imprisonment for life without eligibility for parole until the person has served twenty-five years of the sentence.
[24] Section 279(1.1) of the Criminal Code provides that the sentence for a person convicted of kidnapping, if a restricted firearm or prohibited firearm is used, is a minimum punishment of imprisonment for a term of imprisonment for five years up to a term of imprisonment for life.
[25] Section 718 of the Criminal Code states that the fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have objectives. Chief among those objectives are the denunciation of unlawful conduct and the harm done to victims, the deterrence of offenders and other persons from committing offences and, where necessary, to separate offenders from society.
Positions of the Crown and the Defence
[26] There is no dispute between counsel that Parliament requires that the sentence for first degree murder is life imprisonment with no eligibility for parole for at least 25 years.
[27] Counsel disagree on the sentence to be imposed for kidnapping. The Crown submits that the circumstances, the kidnapping to enforce a drug debt, likewise requires a concurrent sentence in the range of 10 years to life. Counsel for Mr. Hui submits, relying upon R. v. Kawal [^3] and R. v. Dhillon[^4], that a sentence of 10 years, to be served concurrently, is appropriate.
The Sentence
[28] With respect to the kidnapping, I agree with counsel for the Crown that the context of this offence, kidnapping in furtherance of payment for a drug debt, calls out for denunciation, deterrence, and the separation of offenders from society.
[29] I sentenced Mr. Saboon to a concurrent life sentence for the kidnapping. Mr. Saboon, unlike Mr. Hui, had an extensive criminal record. Mr. Saboon had been convicted of 39 offences, 14 as a young offender and 25 in 8 years as an adult. The convictions included multiple convictions for robbery, armed robbery, and drug offences. Time in federal prison did not have the desired deterrent effect.
[30] In my trial reasons, I found Mr. Saboon the principal in the kidnapping and Mr. Hui a party to the kidnapping as an aider[^5].
[31] While parity is an important principle in determining sentence, the backgrounds of Mr. Saboon and Mr. Hui and the roles in the kidnapping are different.
[32] While both Kawal and Dhillon have some similarities to the present case, there are differences too. Kawal involved attempted murder and kidnapping. Two of the accused had pleaded guilty. Kawal received a life sentence for attempted murder and 10 years concurrent for kidnapping. Dhillon received a global sentence sentence of 16 years, 14 years for manslaughter, 10 years concurrent for kidnapping, and two years consecutive for offering an indignity to a body.
[33] This was a kidnapping to enforce a drug debt and denunciation and deterrence have to be the leading factors to guide sentence. I acknowledge Mr. Hui’s limited criminal record.
[34] On Count 1, first degree murder, I sentence David Hui to imprisonment for life without eligibility for parole until he has served twenty-five years of the sentence.
[35] On Count 2, kidnapping, I sentenced David Hui to 15 years of imprisonment, to be served concurrently with the sentence for Count 1.
Ancillary Orders
[36] Certain orders are mandated by the Criminal Code. There will be a s. 109 weapons prohibition order for life and an order that Mr. Hui submit his DNA to the national DNA data bank on both counts.
[37] Thank you for your assistance today counsel.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: July 6, 2022
COURT FILE NO.: CR-20-0184-00
DATE: 2022-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
DAVID HUI
Accused
REASONS FOR SENTENCE
Newton J.
Released: July 6, 2022
/lvp
[^1]: R. v. Hui and Saboon, 2022 ONSC 2402. [^2]: R. v. Saboon, 2022 ONSC 3736. [^3]: R. v. Kawal, 2018 ONSC 7531, [Kawal]. [^4]: R. v. Dhillon, 2019 ONCA 159. [Dhillon]. [^5]: R. v. Hui and Saboon, 2022 ONSC 2402 at para. 127.