R. v. Huynh, 2012 ABQB 483

Court of Queen ’ s Bench of Alberta Citation: R. v. Huynh, 2012 ABQB 483 Date: 20120725 Docket: 091159350Q1 Registry: Calgary Between: Her Majesty the Queen in Right of Canada Crown - and - Dinh Long Huynh Accused Corrected judgment: A corrigendum was issued on August 16, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment _______________________________________________________ Memorandum of Sentencing Decision of the Honourable Mr. Justice W.P.

Sullivan _______________________________________________________ Introduction [ 1 ] The Accused, Dinh Long Huynh, is single, aged 30 years, a high school graduate and is employed in the restaurant industry in the City of Calgary. He is charged on the 19 th day of September, 2009 at Calgary with possessing cocaine for the purposes of trafficking and on the same day and place, did lawfully have in his possession Canadian currency of a value of not exceeding $5,000.00 knowing that all or part of the property was obtained as a result of the Commission in Canada of an offence.

Both offences being contrary to the Controlled Drugs and Substances Act and contrary to s.354 of the Criminal Code of Canada . He has no criminal record, and states that he is remorseful for his behaviour. I convicted him after trial on both counts.

[2] Mr. Huynh has no issue with respect to substance abuse or mental health. Facts [3] Mr. Huynh was being investigated for trafficking in an narcotic at the time of his arrest, 412 grams of cocaine and an amountof cash ($1,130.00) were found in his motor vehicle at the time of his arrest. Analysis [4] In R. v. Ly [2006] AJ No. 216 I reviewed the law as follows: 8 The Criminal Code applies to sentencing under the Controlled Drugs and Substances Act via s. 10(1) of the latter R. v. Trinh(2000), 266 A.R. 180 at paras. 12-13, 2000 ABCA 231; R. v.

Overacker (2005), 198 C.C.C. (3d) 472, 2005 ABCA 150). 9 A three-year sentence is the guideline sentence or starting-point sentence in Alberta for cocaine trafficking in the nature of "acommercial operation on something more than a minimal scale" R. v. Maskell (1981), 1981 ABCA 50 , 58 C.C.C. (2d) 408 at413 (Alta. C.A.); R. v. Rahime (2001), 156 C.C.C. (3d) 349 at para. 18, 2001 ABCA 203; R. v. Lau (2004), 193 C.C.C. (3d) 51 at para.20, 2004 ABCA 408.) I find that Mr. Ly was engaged in commercial cocaine trafficking on more than a minimal scale.

The AlbertaCourt of Appeal, per Hunt J.A., observed in Lau at para. 27 that "[t]he commercial cases that attracted a 3-year starting point ... typicallyinvolved a few grams of cocaine with 2 ounces (about 57 grams) at the high end of the scale". Mr. Ly had in his possession 14.3 grams ofcocaine. Having regard to the authorities, this is a sufficient quantity of cocaine to merit the characterization of Mr. Ly's cocainetrafficking as commercial cocaine trafficking on more than a minimal scale. 10 While the guideline sentence in this case is three years, the actual sentence imposed may vary.

As the Alberta Court of Appealsaid in R. v. Christie (2004), 189 C.C.C. (3d) 274 at para. 30, 2004 ABCA 287, guideline sentences "provide the judge with a foundationfrom which the judge can move up or down to reflect the circumstances of the offence and the offender". In arriving at a sentence higherthan the three-year guideline sentence, I have given careful consideration to the circumstances of this case in the context of thefundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code. 11

Section 718 of the Criminal Code lists various objectives that a sentence may be designed to accomplish. General deterrence anddenunciation are recognized as the paramount objectives of a drug trafficking sentence R. v. Ostertag (2000), 35 C.R. (5th) 350 at para.41, 2000 ABCA 232). Specific deterrence is also recognized as a significant, if not paramount, objective of a drug trafficking sentence R.v. Phun (1997), 1997 ABCA 344 , 120 C.C.C. (3d) 560 at para. 35 (Alta. C.A.); R. v. Wey (1999), 142 C.C.C. (3d) 556 at para.9, 1999 ABCA 251). Given that Mr.

Ly committed this offence while on parole for the same type of offence, I am of the view that asignificant sentence is necessary to meet these objectives. A harsher sentence may have a greater deterrent effect (Maskell at 412; R. v.Proulx, [2000] 1 S.C.R. 61 at para. 107, 2000 SCC 5), and a longer sentence denounces more than a shorter one R. v. McKinnon (2005),192 C.C.C. (3d) 494 at para. 33, 2005 ABCA 8). 12 Rehabilitation of the offender is another objective that ought to be addressed when imposing a sentence for drug trafficking(Ostertag at paras. 41-45).

However, I agree with the Crown that this objective should not be over-emphasized here. Given Mr. Ly'scriminal history, his minimizing of his behaviour in relation to this offence, and his mature age at the time of this offence, the objectiveof rehabilitation cannot outweigh the objectives of deterrence and denunciation. 13

Section 718.1 of the Criminal Code directs that a sentence be proportionate to the gravity of the offence and the degree ofresponsibility of the offender. The Alberta Court of Appeal in Overacker provided guidance for determining the gravity of an offence and

the degree of responsibility of an offender. The Court indicated at paras. 19 and 21 that the gravity of an offence is reflected in themaximum available penalty for the offence and that it can be affected by aggravating circumstances. The Court indicated at para. 23 thatfactors relevant to determining the degree of responsibility of an offender include the degree of the offender's participation in the offence(whether peripheral or integral), the offender's knowledge of the scope of the offence, the offender's motivation in committing theoffence, and any aggravating or mitigating circumstances.

Further factors include persistence and an opportunity to reflect ®. v. Ambrose(2000), 271 A.R. 164 at para. 8, 2000 ABCA 264). 14 I find that both the gravity of this offence and Mr. Ly's degree of responsibility require a significant sentence. The gravity of thisoffence is great. The maximum available penalty for possession of cocaine for the purpose of trafficking is life imprisonment (ControlledDrugs and Substances Act, s. 5(3)(a)), and, as will be discussed below, there are significant aggravating circumstances. 15 Mr. Ly's degree of responsibility is similarly great. I accept the Crown's position that Mr.

Ly is a supplier to the street level crackcocaine dealer. There is no question as to Mr. Ly's awareness of the scope of the offence. Mr. Ly also would have been able to reflect onhis actions, as trafficking "is a crime of calculation, of planning and deliberation, rather than a crime of opportunity" (Ostertag at para.21). Finally, Mr. Ly's motivation in committing this offence and the significant aggravating and lesser mitigating circumstances in thiscase, which will be discussed below, speak to a high degree of responsibility. 16 Under s. 718.2(

a) of the Criminal Code, a sentence should be increased or reduced to account for any relevant aggravating ormitigating circumstances relating to the offence or the offender. One mitigating circumstance in this case is that Mr. Ly maintains steadyemployment. Another mitigating circumstance is Mr. Ly's guilty plea. Although his guilty plea came rather late in the proceedings, Iacknowledge the cost saving to the system occasioned by it. However, according to the pre-sentence report, Mr.

Ly stated that heaccepted responsibility for this offence, but he minimized his behaviour and put most of the blame on his co-accused. It would seem tome that minimizing one's behaviour demonstrates a failure to accept responsibility for that behaviour. There is some suggestion that Mr.Ly has obtained counselling, but there is no evidence as to the extent of such counselling. Further, the counselling is said to have beenfor "personal issues" such as depression, rather than being related to or directed at Mr. Ly's involvement with drugs. Finally, defencecounsel argues that Mr.

Ly is a devoted father but admits, quite rightly, that his role of drug trafficker conflicts with his role of devotedfather. 17 The aggravating circumstances in this case significantly outweigh the mitigating ones. One such aggravating circumstance is Mr.Ly's role of supplier to the street level crack cocaine dealer. Under s. 10(2)(

b) of the Controlled Drugs and Substances Act, it is anaggravating factor that a person convicted of a designated substance offence, such as possession of a controlled substance for the purposeof trafficking or trafficking in a controlled substance, was previously convicted of a designated substance offence, as is the case here.Very seriously aggravating is Mr. Ly's being on parole for the same type of offence when he committed this offence R. v. Mahari(1996), 1996 ABCA 263 , 187 A.R. 35 at para. 3 (C.A.)).

The fact that the drug involved here is crack cocaine is aggravating, ascrack cocaine is recognized as a particularly nefarious drug (Trinh at para. 5). Further, I find that Mr. Ly committed this offence purelyfor profit. According to the pre-sentence report, Mr. Ly denies the use of drugs, and there is no evidence that his involvement in cocainetrafficking was to support an addiction. The pre-sentence report also indicates that Mr. Ly committed this offence for profit. The AlbertaCourt of Appeal in R. v.

Getty (1990), 1990 ABCA 51 , 104 A.R. 180, stated at para. 30 that "a trafficker not being himself anaddict is an aggravating factor indicating that trafficking was a cold blooded mercenary business' (per Davey, C.J.B.C., in R. v. Campbell(1969), (BC CA), 67 W.W.R. (N.S.) 678 (B.C. C.A.))". Taken together, these aggravating circumstances call for asignificant upward departure from the three-year guideline sentence. 18

Section 718.2(

b) of the Criminal Code requires that a sentence be similar to sentences imposed on similar offenders for similaroffences committed in similar circumstances (Christie at paras. 40-43). Again, a three-year sentence is the guideline sentence in Albertafor offences involving commercial cocaine trafficking on more than a minimal scale. I therefore have begun with a three-year term andadjusted it as required by the circumstances of the offence and the offender. 19 Sections 718.2(

d) and 718.2(

e) of the Criminal Code require that I consider whether sanctions less restrictive than imprisonmentmay be appropriate in the circumstances. In Proulx, the Supreme Court of Canada, per Lamer C.J., held at para. 114 that, "[w]herepunitive objectives such as denunciation and deterrence are particularly pressing, such as cases in which there are aggravatingcircumstances, incarceration will generally be the preferable sanction".

Not only are there significant aggravating circumstances in thiscase, but, as discussed above, denunciation and general deterrence are the paramount objectives of a drug trafficking sentence. 20 Defence counsel seeks a conditional sentence for Mr. Ly. In Proulx, Lamer C.J. outlined the criteria for imposing a conditionalsentence at paras. 46-47:

[

Section 742.1 of the Criminal Code ] lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2.

In my view, the first three criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. This decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 . 21 Mr. Ly fails at the first stage of the Proulx analysis. I am satisfied that only the first of the three prerequisites, that of no minimum term of imprisonment, is met.

The second prerequisite is not met, as I find that the appropriate range of sentence in this case is a term of imprisonment of greater than two years. The third prerequisite is also not met. In addressing the issue of endangerment to the community, Lamer C.J. in Proulx stated at para. 69 that, "[i]f the judge finds that there is a real risk of re-offence, incarceration should be imposed". I find that Mr. Ly poses a real risk of re-offence. Not only does Mr.

Ly have a criminal record for trafficking offences for which he was on parole when he committed this offence, he has also failed to accept full responsibility for his criminal behaviour. Consequently, a conditional sentence is unavailable to Mr. Ly. 22 Even if a conditional sentence could be imposed in this case, I would hold that such a sentence would not be appropriate under the second stage of the Proulx analysis.

A conditional sentence in this case would not be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code , based on my analysis above. 23 After considering the circumstances of this case in the context of the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code , I find an appropriate sentence in this case to be 60 months' incarceration. Applying the usual two- for-one credit for pre-sentence custody to the approximately two months that Mr. Ly has been so detained R. v.

Wust , [2000] 1 S.C.R. 455 at para. 45 , 2000 SCC 18 ), I sentence Mr. Ly to 56 months' incarceration. [ 5 ] See also R. v. Blais [2009] A.J. No. 180 for similar analysis. Conclusion [ 6 ] Mr. Huynh was a supplier on more than a minimal scale to what might be considered as “Street Level Traffickers”. The circumstance parallel of Ly. Although sentencing is an individualized process the similarities out weigh the differences. Keeping in mind that Mr. Huynh has no record but was involved in greater amounts, I am satisfied that the appropriate sentence for Mr. Huynh is 48

months in prison. (47 months for the CDSA offence and 1 month consecutive for the C.C. offence) Dated at the City of Calgary, Alberta this 25 th day of July, 2012. W.P. Sullivan J.C.Q.B.A. Appearances: Paul M. Bourassa for the Crown Jamil Sawani for the Accused _______________________________________________________ Corrigendum of the Sentencing Decision of the Honourable Mr. Justice W.P. Sullivan _______________________________________________________ Page 1: Paragraph 1: Delete: s.357 Replace with: s.354