Court File and Parties

COURT FILE NO.: CR-22-90000308 DATE: 20241206

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – DUY TAM NGUYEN

Counsel: E. Skowron and D. Lumba, for the Crown K. Schofield and T. Kapetaneas, for Mr. Nguyen

HEARD: November 22, 2024

REASONS FOR SENTENCE

SCHRECK J.:

[1] Duy Tam Nguyen operated a “stash house” which the police searched and where they found significant amounts of cocaine and methamphetamine and two firearms. Following a trial, Mr. Nguyen was convicted of two counts of possession of methamphetamine for the purpose of trafficking (Counts 1 and 5), possession of a non-restricted firearm without being the holder of a licence (Count 2), possession of a restricted firearm without being the holder of a licence (Count 3) and possession of cocaine for the purpose of trafficking (Count 6). He was acquitted of possession of proceeds of crime not exceeding $5000 (Count 4).

[2] The following reasons explain the sentences that will be imposed in this case.

I. FACTS

A. The Offences

[3] The facts are set out in detail in my reasons for judgment, reported as R. v. Nguyen, 2024 ONSC 3144. Briefly, an undercover police officer purchased crystal methamphetamine and cocaine from a man named Saengsouly Phankham on several occasions in February and March 2021 and Mr. Nguyen was observed meeting with Mr. Phankham immediately before some of the purchases. Mr. Nguyen and Mr. Phankham were arrested on March 16, 2021, at which time the police found a bag containing 174 grams of methamphetamine on Mr. Nguyen’s person.

[4] At the time of his arrest, Mr. Nguyen was in possession of keys to a residence on Huron Street. The police executed a search warrant there and found various drug trafficking paraphernalia, about 60 grams of crack cocaine, 1.34 kilograms of powder cocaine and 386 grams of methamphetamine. They also found a loaded 20-gauge pistol-grip shotgun (a “non-restricted firearm” as defined in s. 84(1) of the Criminal Code), a .45 calibre handgun (a “restricted firearm”), a loaded magazine, and 100 rounds of .45 calibre ammunition. The evidence established that Mr. Nguyen had knowledge and control of all of these items and was therefore legally in possession of them.

[5] A report prepared by D.C. Rob Asner, whom counsel agreed should be qualified as an expert in the distribution, sale, packaging and pricing of cocaine and methamphetamine, was admitted on consent for its truth. According to him, the methamphetamine found on Mr. Nguyen’s person was worth between $3,115 and $4,359 if sold by the ounce and between $10,462 and $13,950 if sold by the gram. The crack cocaine seized at the Huron Street address was worth between $2600 and $3200 if sold by the ounce and between $4771 and $5964 if sold by the gram. The powder cocaine was worth between $48,240 and $73,700 if sold by the kilogram and between $106,880 and $133,600 if sold by the gram. The methamphetamine seized during the execution of the warrant was worth between $6,895 and $9,651 if sold by the ounce and between $23,163 and $30,884 if sold by the gram.

B. The Offender

(i) Background and Character

[6] Mr. Nguyen is 39 years old. He and his siblings were born in Canada to Vietnamese refugees. According to a report prepared by Carole Eastman, a Certified Addiction Counsellor, Mr. Nguyen experienced various forms of complex trauma throughout his life, although the details surrounding this are unclear as Mr. Nguyen would prefer not to share them for personal reasons. According to the report, he was beaten by his father as a form of discipline. Mr. Nguyen also experienced anti-Asian racism while growing up. He now makes his living as an automotive detailer.

[7] Mr. Nguyen has ongoing addiction issues and has apparently been a user of cocaine, methamphetamine and other drugs since he was 25 years old. It is Ms. Eastman’s opinion that he has a severe substance use disorder. She believes that Mr. Nguyen now understands how his life experiences have contributed towards problems in his life, including involvement in the offences he is being sentenced for, and that he is prepared to address them.

[8] Several letters written by Mr. Nguyen’s family members, friends and business associates were filed at the sentencing hearing. They all speak of Mr. Nguyen in positive terms and describe the offences as being out of character for him.

(ii) Criminal Record

[9] In 2006, Mr. Nguyen was convicted of robbery, use of an imitation firearm during the commission of an offence and being disguised with intent to commit an indictable offence. He received a sentence of one year and five months in addition to 286 days of presentence custody.

[10] In 2010, Mr. Nguyen was convicted of possession of a Schedule II controlled substance for the purpose of trafficking. He received a 12-month conditional sentence.

(iii) Presentence Custody and Bail

[11] After his arrest on March 16, 2021, Mr. Nguyen was in custody until he was released on bail on April 8, 2021, a total of 23 days. He was subjected to full or partial lockdowns on 11 of those days.

[12] While on bail, he was subject to house arrest and GPS monitoring for 117 days. Thereafter, he was subject to a curfew from 11:00 p.m. to 6:00 a.m.

II. ANALYSIS

A. Relevant Sentencing Principles

[13] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society ….” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718 (a) to (f), including denunciation, general and specific deterrence and rehabilitation. As the Ontario Court of Appeal observed in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 58, the various objectives “will not necessarily point toward the same sentencing disposition” and that the court must “prioritize and blend the different objectives of sentencing so as to properly reflect the seriousness of the offence and the responsibility of the offender.”

[14] While there will rarely be only one possible fit sentence, s. 718.1 of the Code provides that any sentence that is ultimately imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender”: R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 37; R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at para. 30.

B. Positions of the Parties

[15] The Crown seeks a sentence of four years on the two counts of possession of methamphetamine for the purpose of trafficking (Counts 1 and 5), six years consecutive for possession of cocaine for the purpose of trafficking (Count 6) and three years consecutive for the two firearm possession offences (Counts 2 and 3). This would be a total of 13 years, which the Crown submits should be reduced to nine and a half years to give effect to the principle of totality and various mitigating factors.

[16] The defence submits that the total sentence should be five and a half years less credit for presentence custody (including enhanced credit because of harsh custodial conditions) and time spent subject to restrictive bail conditions, for a total of four years.

C. Applicable Sentencing Ranges

(i) Firearm Possession

[17] Mr. Nguyen unlawfully possessed two firearms, one of which was a handgun. Firearms of this nature are manufactured for one specific purpose, which is to terminate the lives of human beings, something which can easily be accomplished with only a slight amount of pressure applied to the trigger. They are instruments of death. The public threat posed by firearms cannot be overstated.

[18] There is a well-established range of sentences for firearm possession offences involving handguns of between two and five years imprisonment for a first offence: R. v. Hussey-Rodgriques, 2024 ONSC 2671, at para. 88; R. v. Burke-Whittaker, 2024 ONSC 2906, at para. 27. The gravity of firearm possession offences is always significant, so where an individual is situated within the range will depend on the offender’s level of moral culpability. This often depends on the reason for which the firearm was possessed.

[19] Where the firearm was possessed by an “outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade,” the level of moral culpability will be high: R. v. Nur, 2013 ONCA 677, 117 O.R. (3d) 401, at para. 51 (aff’d 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82); R. v. Mohiadin, 2021 ONCA 122, at para. 12. Because of this, such offenders tend to receive sentences at the higher end of the range: R. v. Graham, 2018 ONSC 6817, at para. 38, aff’d 2020 ONCA 692, 474 C.R.R. (2d) 137; R. v. Marshall, 2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; R. v. Mensah, 2024 ONSC 2796, at para. 52. In this case, the firearms were found at what is commonly described as a “stash house,” that is, a location where illegal drugs intended for sale are stored. They were clearly possessed as a “tool of the trade,” although there is no evidence that they were possessed in public.

[20] Most, if not all, of these cases involved convictions under s. 95(1) of the Criminal Code of possessing a firearm that was loaded or with readily accessible ammunition. Mr. Nguyen was convicted under s. 91(1) of possessing a firearm without being the holder of a licence, which is a less serious offence: R. v. Boussalas, 2015 ONSC 1536, at para. 14; R. v. Kennedy, 2016 MBCA 5, 323 Man. R. (2d) 265, at para. 29. That said, there was ammunition found for both firearms in this case. I will, however, keep the distinction between the offences in mind when determining the appropriate sentence.

(ii) Possession of Cocaine for the Purpose of Trafficking

[21] Mr. Nguyen possessed at total of 1396 grams of cocaine (both crack and powder). My colleague, Stribopoulos J., recently considered the applicable sentencing range for cases involving similar amounts in R. v. McAlpine, 2024 ONSC 797, 548 C.R.R. (2d) 53, at paras. 53-55:

The Court of Appeal has repeatedly recognized that for first offenders who possess large quantities of cocaine (more than a pound) for trafficking, the range of sentences is between five and eight years of imprisonment: see R. v. Bryan, 2011 ONCA 273, at para. 1; R. v Wawrykiewicz, 2019 ONCA 21, at para. 15; R. v. Brown, 2021 ONCA 35, at para. 9; R. v. Morgan, 2021 ONCA 812, 407 C.C.C. (3d) 147, at para. 20.

After citing various cases, Justice Weiler, in R. v. Bajada (2003), 169 O.A.C. 226 (C.A.), noted, at para. 13, that it “would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record.”

Given the substantial quantity of cocaine involved in this case - 1,114.5 grams, almost 2 1/2 lbs - I agree with the Crown that, in the circumstances, the applicable sentencing range for Mr. McAlpine’s offence of possessing cocaine for the purpose of trafficking is between five and eight years of imprisonment.

(iii) Possession of Methamphetamine for the Purpose of Trafficking

[22] The sentencing range for possession of methamphetamine for the purpose of trafficking is less clear. Sentences in the upper single digits are not uncommon where multiple kilograms are involved: R. v. Ticzon, 2018 ONCA 198, at paras. 10-12; R. v. Chanmany 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 52-56; R. v. Oraha, 2012 ONSC 1439, at para. 43; R. v. Wu, 2014 ONSC 6000, at para. 36.

[23] However, there appears to be less consistency in the sentencing jurisprudence where smaller amounts of less than a kilogram are involved, as in this case, which involved a total of 560 grams. Amounts of this nature appear to attract sentences ranging from the upper reformatory range to five years: R. v. Musa, 2022 ONSC 3734, at paras. 3, 55; R. v. Shevalier, [2017] O.J. No. 7247 (C.J.), at paras. 5, 53, 58; R. v. Bosnjak, 2023 ONCJ 608, at paras. 36, 145; R. v. Gagnon, 2017 ONSC 7470, at paras. 7, 59; R. v. Prestula, 2018 ONSC 4214, at paras. 5, 25; R. v. Bennett, 2023 ONCJ 616, at paras. 3-4, 35, 39. The lack of clarity is perhaps due to the fact that in all of these cases, the offender had been convicted of possessing more than one type of drug and the sentences for possession of methamphetamine for the purpose of trafficking were made concurrent to other sentences.

D. Aggravating and Mitigating Factors

(i) Aggravating Factors

[24] The fact that Mr. Nguyen has a prior criminal record is an aggravating factor. This is particularly true of the drug offences, as he has a previous conviction for such an offence, albeit for a Schedule II substance. While Mr. Nguyen has no prior firearms convictions, he was previously convicted of using an imitation firearm in the commission of an offence. However, the aggravating effect of this conviction is somewhat muted because it occurred 18 years ago.

[25] Another aggravating factor is the apparent sophistication of the trafficking operation. The drugs were found together with a variety of packaging paraphernalia in an apartment unit that appears to have been rented for the sole purpose of being used as a “stash house.” In addition to this, the number of purchases made by the undercover officer show that this was an ongoing endeavour.

[26] The fact that more than one type of drug was involved is also an aggravating factor.

(ii) Mitigating Factors

(a) Social Context

[27] As noted earlier, Mr. Nguyen appears to have suffered some sort of trauma while he was younger, although the details respecting this are unclear. He was also the victim of anti-Asian racism. However, factors such as these are only relevant where they have some connection to the offence: Morris, at para. 97; R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at para. 128. There is no clear connection in this case.

(b) Rehabilitative Prospects

[28] The materials filed at the sentencing hearing suggest that Mr. Nguyen has recently gained some insight into his conduct and has expressed an intention to change the trajectory of his life. This, together with his employment history and his supportive family, all bode well for his rehabilitation.

(c) Presentence Custody and Bail

[29] Mr. Nguyen spent 117 days on bail subject to house arrest, which should be taken into account in arriving at a fit sentence: R. v. Downes (2006), 79 O.R. (3d) 321 (Ont. C.A.), at para. 33; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. Courts are not required to quantify a specific amount of credit, and doing so risks skewing the calculation of the ultimate sentence: R. v. Marshall, 2021 ONCA 344, at para. 53. When courts do quantify the credit, it is often between a quarter and a third of the total time spent on bail: R. v. Long, 2021 ONSC 4747, at para. 39; R. v. Navarathinam, 2021 ONSC 4241, at paras. 47-51; R. v. Campbell, 2021 ONSC 4193, at paras. 15-20; R. v. Inshanally, 2021 ONSC 3432, at paras. 35-37. In this case, Mr. Nguyen is entitled to a credit of 47 days for the time he spent subject to house arrest. For the remainder of the time he was on bail, Mr. Nguyen was subject to a curfew and was also subject to GPS monitoring for a small portion of this period. In my view, there should only be minimal credit for this amounting to 21 days.

[30] Mr. Nguyen spent 11 days of his presentence custody subject to lockdowns. The unacceptability of this practice has been the subject of frequent judicial commentary and should be taken into account in determining a fit sentence: R. v. Duncan, 2016 ONCA 754; R. v. Shaikh, 2024 ONSC 774, at paras. 22-30. Mr. Nguyen is entitled to a credit of 17 days for this.

[31] The total “Downes” and “Duncan” credit is 85 days, or two months and three weeks, in addition to the usual credit for presentence custody which is discussed later in these reasons.

E. Determining Fit Sentences

(i) The Principle of Totality

[32] Having considered the applicable sentencing range and the aggravating and mitigating factors, I must now determine the appropriate sentence for each count. In doing so, I must keep in mind the principle of totality. The importance of this principle was recently explained in R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, at para. 100:

This principle must be observed in appropriate cases to preserve the principle of proportionality and to reflect the fact that where sentences are combined, the functional value in imposing the sentences can generally be achieved without multiplying fit sentences: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 15-25. Simply put, an offender is not typically going to need to fully serve each component for the principles and goals of sentencing to be satisfied.

[33] The totality principle ensures proportionality, but also ensures that the sentencing objective of rehabilitation is not overshadowed by the competing objectives of denunciation and deterrence, as was explained in R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at para. 18:

In short, a combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender. The overall length of the custodial period imposed must still relate to and reflect the variety of sentencing goals, including denunciation, deterrence (specific and general), rehabilitation, the need to separate offenders from society where necessary, and the general imperative of promoting respect for the law and the maintenance of a just, peaceful and safe society: Criminal Code, s. 718. In this regard, the authorities recognize that where the ultimate effect of the combined sentences is to deprive the offender of any hope of release or rehabilitation, the functional value of these sentencing principles meets the point of diminishing returns: see R. v. C. (J.A.) (1995), 26 O.R. (3d) 462 (C.A.). This point was reinforced by Lamer C.J. in M.(C.A.), [1996] 1 S.C.R. 500, at para. 74.

See also R. v. England, 2024 ONCA 360, at para. 92.

(ii) Firearm Possession

[34] As noted earlier, the possession of firearms in this case was connected to drug trafficking. Having considered the relevant aggravating and mitigating factors, I have concluded that the appropriate sentence for possession of a restricted firearm (Count 3) is four years. However, to give effect to the principle of totality, the sentence that will be imposed is three years.

[35] The appropriate sentence for possession of the non-restricted firearm (Count 2) is two years.

(iii) Cocaine

[36] Given the amounts involved and the sophisticated nature of the operation, the appropriate sentence for possession of cocaine for the purpose of trafficking (Count 6) would be six years, but the sentence that will be imposed will be five years to give effect to the principle of totality. This sentence will be reduced by the two months and three weeks of “Downes” and “Duncan” credit discussed earlier. The sentence to be imposed will therefore be four years, nine months and one week.

(iv) Methamphetamine

[37] As noted earlier, the range for possession of methamphetamine of less than a kilogram for the purpose of trafficking is not entirely clear. Having considered similar cases and the factors in this case, I am of the view that three years is appropriate for Count 5, which involved 386 grams, and two years is appropriate for Count 1, which involved 174 grams.

(v) Consecutive or Concurrent?

[38] It is well established that in cases of this nature where firearm possession is linked to drug trafficking, the sentences for the possession offences and the trafficking offences should be consecutive: R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 128-129; R. v. Graham, 2018 ONSC 6817, at para. 43. However, the sentences for the two firearm possession offences will be concurrent.

[39] The Crown submits that the sentences for the cocaine and the methamphetamine convictions should be consecutive because they involve different drugs. I do not agree. The fact that more than one type of drug was possessed is an aggravating factor that has been considered in determining the appropriate sentence. In virtually all of the cases cited earlier where more than one type of drug was involved, concurrent sentences were imposed. In my view, this is the correct approach for the reasons explained in R. v. Felix, 2019 ABCA 458, 98 Alta. L.R. (6th) 136, at para. 81 (aff’d without reference to this point sub nom. R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366):

All sentences should run concurrently. The entire volume of drugs trafficked contributes to the finding of a wholesale operation. Although different drugs must be charged under different counts, it would be inconsistent with the wholesale framework to impose consecutive sentences. While allowing for exceptions in appropriate circumstances, this treatment concords with principles of totality for multiple-drug transactions, as stated in R. v Brodt, 2016 ABCA 373 at para 5, 46 Alta LR (6th) 213….

F. Credit for Presentence Custody

[40] In accordance with R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575, Mr. Nguyen is entitled to a credit of 35 days, or approximately one month and one week, for the 23 days he spent in presentence custody.

III. DISPOSITION

A. Sentences Imposed

[41] The sentences that are imposed are as follows:

Drug Offences:

• Count 1: 2 years
• Count 5: 3 years, concurrent
• Count 6: 4 years, 9 months and 1 week, concurrent

Firearm offences

• Count 2: 2 years, concurrent to Count 3
• Count 3: 3 years, consecutive to Counts 1, 5 and 6

[42] The total sentence is therefore seven years, nine months and one week. From this, a credit of one month and one week for 23 days of presentence custody is to be deducted. The sentence that remains to be served is therefore seven years and eight months.

B. Ancillary Orders

[43] Pursuant to s. 487.051(2) of the Criminal Code, Mr. Nguyen is ordered to provide a sample of his DNA for inclusion in the national databank.

[44] Pursuant to s. 109(3) of the Criminal Code, there will be an order prohibiting Mr. Nguyen from possessing any firearm, cross-bow, restricted weapon, ammunition or explosive substance for life.

Justice P.A. Schreck

Released: December 6, 2024