R. v. Quach, 2011 ABQB 365

Court of Queen ’ s Bench of Alberta Citation: R. v. Quach, 2011 ABQB 365 Date: 20110607 Docket: 091568907Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Justin Quach Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] This Accused pled guilty on March 1, 2011 to the following charges: 1. That he, between the 4 th day of March, 2009, and the 5 th day of march, 2009, both dates inclusive, at or near Edmonton, Alberta, did unlawfully possess a controlled substance to wit: cocaine for the purpose of trafficking, contrary to

section (5(2) of the Controlled Drugs and Substances Act . 2. That he, between the 4 th day of March, 2009, and the 5 th day of March, 2009, both dates inclusive, at or near Edmonton, Alberta,

2. That he, between the 4 th day of March, 2009, and the 5 th day of March, 2009, both dates inclusive, at or near Edmonton, Alberta, did unlawfully have in his possession property (or proceeds of property) Canadian currency of a value not exceeding five thousand dollars knowing that all (or part) of the property (or proceeds of the property) was obtained (or derived directly or indirectly) by the commission in Canada of an offence punishable by indictment, contrary to

section 355 (

b) of the Criminal Code of Canada . [ 2 ] At the time the Accused pled guilty he admitted to certain facts alleged by the Crown. The Crown’s

summary of events that the Accused admitted to in pleading guilty were that police were engaged in surveillance of what they considered to be a drug stash house when on the day in question March 4, 2009 they observed two individuals who were under surveillance at the stash house residence leaving the stash pad to Londonderry Mall at approximately 18:49 hours. These two individuals were then seen to be engaging in a hand to hand drug transaction, at which time the two individuals under surveillance returned to the stash pad at approximately 19:06 hours.

At 19:09 hours these two individuals left with a white box and drove a Canadian Tire parking lot. At 19:20 hours another hand to hand transaction was witnessed by police involving a vehicle being driven by the Accused Mr. Quach. One of the two individuals from the stash pad placed the white box in the right rear passenger area behind another person seated in the right passenger seat of the vehicle Mr. Quach was the operator. [ 3 ] Mr. Quach’s vehicle was stopped shortly thereafter and one kilogram of cocaine was discovered in the white box. Mr.

Quach was also found to have 28 grams of cocaine on his person and $1,350 in cash. [ 4 ] Although there were issues as to Mr. Quach’s knowledge and control of what was found in the white box, he pled guilty to trafficking in cocaine based on his wilful blindness of the situation. [ 5 ] The Pre-Sentence Report in this matter concludes that Mr. Quach is a hard working young man with no prior criminal record, who is a suitable candidate for community supervision.

His girlfriend attended Court, and even the arresting Sergeant believes that the Accused is an excellent candidate for a Community Supervision Order (“CSO”). [ 6 ] Crown counsel and defence counsel agree that the range of sentence for Mr. Quach is between 24 and 28 months, but they disagree as to the manner in which Mr. Quach should be sentenced. Although Crown counsel concedes that 24 months less one day would be at the lower end of the sentencing range and lead to CSO eligibility, the Crown has not agreed to a joint submission with defence counsel for a CSO.

Both counsel agree that the one kilogram of cocaine seized has a street value of approximately $40,000, and constitutes an amount of cocaine consistent with wholesale trafficking, for which there is a 4-1/2 year starting point in Alberta. Conclusion [ 7 ] The sentencing of Mr. Quach presents some significant challenges. On one hand the Accused presents as a very young individual with no criminal record, who normally would be given a second chance before any significant period of incarceration were to be imposed upon him.

In addition to the Pre-Sentence Report which is very favourable to a conditional sentence, the Accused even has a reference from the investigating and arresting Sergeant. It is not likely that this Accused will need specific deterrence going forward into the future given what I have been advised about him. Furthermore the Court has a significant amount of discretion in the sentencing matters. [ 8 ] However general deterrence is still a valid objective sentencing in case of this kind or the quantity of cocaine involved constitutes wholesale traffacking. The starting point sentence for an offender such as Mr.

Quach with no significant criminal record is 4- 1/2 years. The fact that Mr. Quach has no criminal record is not a mitigating factor, but rather just an absence of an aggravating circumstance. There is however no bar to a conditional sentence in Mr. Quach’s case notwithstanding the guideline sentence as it is not a judicially imposed minimum, nor does it eliminate the sentencing judge’s wide discretion in imposing a sentence.

The failure to impose a sentence consistent with the guideline set by the Court of Appeal is not in and of itself an error of principle, however it does not follow that a sentencing judge can disregard the starting point sentences that have been set by the Court of Appeal. However a conditional sentence is unavailable unless both a probationary sentence and a penitentiary term are not appropriate. [ 9 ] In R. v.

Marchesi , 2009 ABCA 304 the sentencing judge found that a sentence of less than two years was available, but did not rule out a penitentiary term as being appropriate in the particular circumstances of that case. In effect the Court of Appeal found that the trial judge in Marchesi effectively turned the starting point into a conditional sentence of two years less a day, rather than recognizing and confirming the 4-1/2 year starting point that I am dealing with herein.

[10] Furthermore the Court of Appeal stated that absent a finding that a penitentiary sentence was not warranted, a conditionalsentence is not available. The proper approach is to first conclude that the sentence of less than two years is fit, before consideringwhether a sentence can be served in the community. To reason in the opposite direction is an error in principle. In Marchesi, thesentencing judge did not mention the starting point at all, and while it was not a reviewable error to follow a sentencing guideline, thatdoes not mean that the sentencing judge can ignore the sentencing guidelines.

The Court of Appeal in Marchesi overturned the CSO andimposed a period of 30 months incarceration, having regard to the guilty plea and other mitigating factors involved in that commercialtrafficking dial-a-doper situation, which is a slight discount from the 36 month starting point sentence for dial-a-doper convictions. [11] In the present matter, the Accused made a very timely guilty plea, and he is a very youthful offender who shows considerableremorse, and is not an individual who is likely to re-offend. [12] Although our Court of Appeal has endorsed the starting point of 4-1/2 years for “wholesale commercial trafficking” incocaine, they have acknowledged in R. v.

Lau, 2005 ABCA 408 at paragraph 21 that there is “no bright line as to where commercialtrafficking on more than a minimal scale ends and wholesale commercial trafficking begins”. [13] In the present matter, clearly one kilogram of cocaine constitutes an amount of cocaine consistent with wholesale traffickingas opposed to a simple commercial trafficking operation.

However this Accused has pled guilty on the basis of wilful blindness asopposed to direct knowledge and control, and as has been pointed out police surveillance was with respect to other individuals involveddirectly in the stash house, and in fact there was no police surveillance of the Accused until the events took place which arose just priorto the Accused’s arrest. Defence counsel also points out that one of the main stash house perpetrators received a Conditional SentenceOrder, and that sentencing “parity” requires a similar outcome for Mr.

Quach, although the other accused’s antecedents are not known. [14] I conclude that this “parity” argument is not a major factor in Mr. Quach’s sentencing given the lack of knowledge of theantecedents concerning the other accused, and given the fact that the other accused has very little if anything to do with Mr. Quach’scriminal charge(s). Admittedly though Mr. Quach was not the individual that was under surveillance by police, and it may have been asdefence counsel points out that Mr.

Quach has simply happened be the last individual in illegal possession of the “hot potato” whichcontained the one kilogram of cocaine. [15] Nevertheless even though Mr. Quach is very young person [19-1/2 years of age at the time of the offence], and is currentlyjust under 22 years of age at the time of sentencing, his explanation or excuse for becoming involved in drug trafficking is very shallow.Mr. Quach’s explanation for his involvement in this serious criminal activity was that it was “an easy way to make money”, although hedescribes his actions as stupid. Mr.

Quach indicates that he did not fully appreciate the impact of his criminal behaviour until after he wasarrested. His family circumstances do not establish any identifiable abuse, although he did indicate that his father had a gamblingaddiction that impacted the family financially when he was growing up.

The Accused’s mother passed away from cancer in May 2009,shortly after the events of March 4 and 5, 2009 which led to his arrest, and the Accused believes that he contributed to his mother’ssuffering and death. [16] The Accused’s remorsefulness and excellent prospects for the future must of course be balanced with society’s interest indeterring wholesale drug trafficking, as the evils of drug trafficking in Canada are well known as described in R. v. Pushpanathan, (SCC), [1998] 1 S.C.R. 982 at paragraphs 83 to 91:– II. Illicit Drug Trafficking: Background A. Impact in Canada

(1) Incidence of Illicit Drug Use and Trafficking in Canada 83 Illicit drug use and trafficking is a serious problem in Canada and those that traffic in dangerous drugs must be a very realconcern for all Canadians. Recent information shows that there has been an increase both in the use of illicit drugs and in the incidence ofdrug offences. According to a report of the Canadian Centre on Substance Abuse, illicit drug use increased substantially from 1993 to1994: cannabis from 4.2 to 7.4 percent; cocaine from 0.3 to 0.7 percent; LSD, speed or heroin from 0.3 to 1.1 percent (D. McKenzie,Canadian Profile: Alcohol, Tobacco & Other Drugs (1997), at p. 91).

84 The number of drug-related incidents reported annually has increased in each of the past several years. In 1993, 56,811 incidents were reported (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1993, at p. 52); in 1994, that number had increased to 60,594 (Canadian Centre for Justice Statistics, Canadian Crime Statistics 1994, at p. 16). The latest reports show another increase from 1995 to 1996; there were 65,106 drug-related incidents in 1996, which represented a 4.4 percent increase over the previous year (Juristat, vol. 17, No. 8, 1997, at p. 10).

At the end of 1996, there were 2,899 drug offenders incarcerated in federal institutions, constituting 21.3 percent of the federal prison population (L. L. Motiuk and R. L. Belcourt, Research Branch, Correctional Service of Canada, Homicide, Sex, Robbery and Drug Offenders in Federal Corrections: An End-of-1996 Review, at p. 13).

(2) Drugs and Crime 85 Drug offences such as possession and trafficking are only part of the link between the drug trade and criminality. There is an established connection between heavy drug use and crimes motivated by the need to finance a drug habit (Juristat, vol. 14, No. 6, 1994, at p. 5). A Canadian survey of federal inmates showed that 40 percent of men were drug users and half of those had engaged in criminal activity to get drugs.

For women, the ratio is even greater: 25 percent of female inmates in Canada committed their crimes solely to obtain drugs (ibid., p. 12). 86 In addition, the illegal drug trade is known to involve violence as a means of resolving disputes and maintaining discipline (ibid., p. 9).

In 1996, 56 homicides, that is to say one in ten, were reported by police to be drug-related; this was said to be similar to averages for other years (Juristat, vol. 17, No. 9, 1997, at p. 10). 87 Finally, it is well established that the consumption of licit and illicit drugs increases the rate of criminality generally, not just offences directly related to drugs. Among a sample of federal male inmates, over half were under the influence of alcohol or other drugs when they committed at least one of their crimes (Juristat, vol. 14, supra, at p. 11).

Seventy-one percent of those of those who had consumed drugs said they would not have committed the crime if they had not taken the drugs (ibid., p. 12). Thus, as might be expected, U.S. research indicates that drug abusers are more likely to be re-arrested than non-abusers (Bureau of Justice Statistics, Drugs and Crime Facts, 1994, at p. 26).

Furthermore, research indicates that from 30 to 50 percent of those convicted of drug offences re-offend (ibid.; Canadian Centre for Justice Statistics, An Examination of Recidivism in Relation to Offence Histories and Offender Profiles (1993), at p. 21). 88 In the face of all of this evidence, it is impossible to underestimate the harm that is done to Canadian society in the form of criminal activity, often violent, by the trafficking of illicit drugs. Unfortunately, there are also other costs associated with illicit drug trafficking and use, which reflect the widespread harm caused by these activities.

(3) Social and Economic Costs of Illicit Drug Use 89 The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity. 90 In Canada, the total cost to society of substance abuse has been estimated to be $18.45 billion annually (Canadian Centre on Substance Abuse, The Costs of Substance Abuse in Canada: Highlights (1996), at p. 2). Of this amount, the cost flowing from illicit drugs is $1.4 billion (McKenzie, supra, at p. 227).

In 1992 there were 732 deaths, 7,095 hospitalizations and 58,571 hospital days in Canada attributable to illicit drugs (ibid., p. 91).

Mortality from illicit drugs is less than for alcohol and tobacco, but tends to involve younger victims (Costs of Substance Abuse in Canada, supra, at p. 6). 91 These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world. [ 17 ] I am certain the problems associated with drug trafficking in Canada are much worse today than they were in 1998 when Pushpanathan was decided.

[ 18 ] In exercising my discretion in sentencing, and based on the submission/evidence before me on sentencing, I believe that the starting point of 4-1/2 years for wholesale cocaine trafficking can be reduced by approximately one-third for the very timely guilty plea, and can be reduced further to 27 months or one half of the starting point given that Mr. Quach is a very youthful offender who shows considerable remorse, and has otherwise demonstrated excellent prospects for the future. [ 19 ] I cannot however rule out penitentiary time in Mr. Quach’s case, and accordingly a CSO would not be appropriate.

Although Mr. Quach can only be described as a courier of a significant amount of very valuable and very potentially destructive cocaine, even instances of transporting cocaine of this quantity must be generally deterred. Individuals such as Mr. Quach who are lured by the prospect of easy money and greed must also be deterred, otherwise individuals actively involved in the drug trade will have an endless source of innocent looking couriers willing to risk the transportation of significant amounts of illicit drugs for personal gain. [ 20 ] In the present case Mr.

Quach was not addicted to any drugs, nor did he have any other reason to be involved in the illicit drug trade other than the opportunity to make easy money. He appears to have either wilfully acted as courier, or been wilfully blind to what he was transporting. Accordingly while this Accused was not a drug dealer as such, and as a result of his arrest has completely ceased to associate with any illicit drug activity, I conclude that a penitentiary term of 27 months is still warranted.

Had the Accused himself been a drug addict himself, or had the Accused been a victim of some kind of abuse while growing up, or had there been more detailed antecedents supplied with respect to other person(

s) involved in the matter who also received CSO’s, I would have likely issued a CSO because I believe in those circumstances penitentiary time would not have been called for. [ 21 ] There will be no victim fine surcharge in the circumstances. The Accused will be subject to a mandatory 10 year weapons prohibition, and all items seized will be forfeited. Heard on the 2 nd day of June, 2011. Dated at the City of Edmonton, Alberta this 7 th day of June, 2011. Donald Lee J.C.Q.B.A. Appearances: Adam Halliday Public Prosecution Service of Canada, Prairie Region for the Crown Harold Brubaker Engel Brubaker

for the Accused