R. v. Tran, 2014 MBPC 44

R. v. Tran Citation No. 2014 MBPC 44 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) Anne Turner and Christina Cheater, for the Crown ) - and – ) ) Anthony Tran ) Roberta Campbell, for the Accused ) ) Judgment delivered: ) November 1, 2014 CORRIN, BRIAN, P.J. Introduction [ 1 ] On April 16, 2014, the accused was found guilty of charges of possession for the purpose of trafficking (s.5(2) CDSA) and possess property obtained by crime under $5,000.00 (s.354 (1)(a)). The offences took place on July 9, 2010 and the trial took place on December 11, 2013.

No information was provided to the court as to why it took almost 4 years to resolve this matter. [ 2 ] The accused was the subject of a traffic stop by Winnipeg Police Service on July 9, 2010. At such time, the following items were seized from his vehicle by the police: 687 ¼ gr. rocks of cocaine; 5 ounces of powdered cocaine; a digital scale and $1,525.00 cash. The $1,525.00 cash constituted the property obtained by crime. [ 3 ] The following were filed as exhibits at the sentencing: • S-1 – A pre-sentence report dated June 27, 2014 prepared by Kristie Pedrosa and Patrick Cortino, Probation Officers.

The report described the offender to be “very low risk to re-offend”. [ 4 ] The accused admits that he asked an unnamed drug dealer for an employment opportunity. It is his position that he did this in order to earn money to go to university and that he had only been so employed for approximately 2 months before his arrest. According to the accused, it was his job to deliver drugs to customers, collect monies owing with respect to such transactions and remit the money to his employer. He claimed to have only made $1,500.00 in the approximately 2 months that he acted in such respect.

It was his contention that the money in his possession, the $1,525.00, represented his total earnings as a drug courier. According to Mr. Tran he had only made some 4 or 5 deliveries prior to his arrest. In this regard Mr. Tran told the court that he was in personal possession of these monies because he feared that his parents might find same if he left it in his bedroom at home and deduce that he was up to no good.

The drug seizures were street valued at approximately $30,000.00. [ 5 ] The Crown seeks a sentence of 36 months while the accused seeks a sentence of 2 years less a day to be served conditionally. [ 6 ] It is the Crown’s position that the range for this type of offence is roughly 2 ½ to 6 years and the sentence that they are seeking takes account of the accused’s mitigating factors as it is at the low end of such range. In this respect the Crown referred to R. v.

Rocha , 2009 MBCA 26 wherein Chartier, J.A., indicates that couriers involved at the mid level whose sole purpose is to transport drugs in order to prevent their employers from being detected must expect a sentence to be in the range of 3 – 6 years, and, R. v. Gilchrist , 2004 MBCA 21 , where Freedman, J.A. described the ranges of sentences for this type of offence and this type of offender as being less than 2 ½ years and beyond 4 years. The Crown also referred to R. v. Stebeleski 2007 MBCA 1 , another Manitoba Court of Appeal decision supporting the position that R. v.

Gilchrist reflected the appropriate range for this type of offence and this type of offender. In this regard, Huband, J.A. quotes Freedman, J.A. at paragraph 19: “The range for this type of offence, and for this type of offender, may start at less than 2 ½ years but it is certainly wide and it extends beyond 4 years” (at para. 27 of Gilchrist ) [ 7 ] Mr. Tran is currently 23 years of age. He has no prior record and has expressed remorse for his actions. He hopes to return to university, get a degree and obtain conventional employment in the future. Mr.

Tran was in the final year of university but dropped out approximately a year prior to the preparation of the pre-sentence report. He attributed this to stress from these proceedings. The past year was the first time that he had not been enrolled as a full time student. Mr. Tran has been working full time since the spring of 2014.

At the time of the subject offence he was working part-time for Best Buy Electronics. He has also held other part time positions. There is no reason to believe that Mr. Tran has ever been involved in a life style involving illicit drugs. He appears to come from a very supportive and close family who sustain and encourage a relatively positive and pro-social lifestyle. His parents have been very supportive of him even to the extent that they gave him the money to re-imburse his drug employer for the lost cargo of drugs seized by the police in this matter. [ 8 ] The Criminal Code sets out the purposes and principles of sentencing in

section 7.18. In this respect, in imposing any sentence the court must keep in mind the following objectives:

a) denunciation of unlawful conduct;

b) deterrence of others as well as the offender;

c) where necessary, the separation of offenders from the rest of society;

d) rehabilitation;

e) reparation to victims and the community;

f) promoting a sense of responsibility in offenders and an acknowledgment of the harm done. [ 9 ] In deciding what a fit and proper sentence is, the court must take into account the circumstances of the offence and the offender and the fundamental principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 10 ] In the Gilchrist case, previously cited, the accused was a young man, only 20 years of age with no criminal history.

He had been found to be in possession of crack cocaine with a street value of $14,000.00 and $7,640.00 cash and other drug-related paraphernalia. The accused had pled guilty at a relatively early stage. He had an unfortunate family background and had been determined to lack family supports. He was out on bail at the time of the drug offence. The Court of Appeal agreed with the sentencing judge’s opinion that the accused was something more than a street level dealer and upheld a 4 year conviction, acknowledging that it was at the high end of the available range. [ 11 ] R. v.

Rocha was a case where the Appeal Court confirmed a sentence of 4 years for an accused who, after trial, had been found guilty of possessing 20 ounces of cocaine for the purpose of trafficking. The court described him as a courier who transported drugs at the multi-ounce level. Chartier, J.A. emphasized that deterrence and denunciation are the prime ingredients of the sentence assessment for an offence involving possession for the purpose of trafficking cocaine. [ 12 ] Given the amount of drugs and cash in Mr.

Tran’s possession at the time of his arrest I think it fair to categorize him as a mid- level courier for the purposes of this sentence analysis. The Gilchrist/Rocha range is therefore less than 2 ½ to 6 years in the penitentiary. As was expressed in these cases, the purpose of establishing this range is to ensure that people will not easily allow themselves to be part of the trafficking of cocaine and other such pernicious drugs. It is a trite observation that people who perform services such as those performed by Mr.

Tran act as insulators in the drug trade preventing the apprehension of those who actually control the illegal business. The Court of Appeal has emphasized that such accomplices must receive penalties that act as a disincentive to their willingness to become engaged in the business. In the case before me the Crown has argued that the only way to maintain such a disincentive is to order a penitentiary term of 3 years. [ 13 ] Counsel for the accused argued that deterrence and denunciation should not be utilized to the exclusion of other sentencing considerations such as long term rehabilitation. Ms.

Campbell submits that in all the circumstances, a conditional sentence is the appropriate option as such a sentence while reflecting the denunciation and deterrence also permits appropriate elements of emphasis on rehabilitation. In such regard she cited a number of court decisions in which conditional sentences have been granted in case involving trafficking or possession for the purpose of trafficking of cocaine or similar hard drugs, namely: • R. v. Marchioni, November 8, 2012, Manitoba Queen’s Bench • R. v. Viznaugh , [2010] MBQB 17 • R. v. Petit , [2009] MBQB 234 • R. v. Tarnowski , [2010] MBQB 218 • R. v.

Deleon , [2011] MBQB 165 • R. v. DeJesus, July 12, 2006, Manitoba Queen’s Bench • R. v. Alcantara , December 9, 2010, Manitoba Provincial Court • R. v. Dare , September 3, 2008, Manitoba Provincial Court • R. v. Piche , April 19, 2011, Manitoba Provincial Court • R. v.

Tourand , February 1, 2006, Manitoba Queen’s Bench [ 14 ] The cases where lengthy conditional sentences were imposed tend into two situations: Firstly, dire circumstances that have led a person with no previous criminal record into trafficking drugs and secondly, situations where offenders have made exceptional and significant changes in their lives for a lengthy period of time after having been charged. Most such sentences in the second category

involve offenders who were involved in trafficking in order to support their own drug addiction. With respect to defence counsel, I am not of the opinion that either of these situations pertain at the case at bar. [ 15 ] When the Court of Appeal sets out a range that does mean that it must be applied in every case that comes before a lower level court. The sentencing judge is definitely entitled to exercise some discretion. In R. v. Marchioni , a decision of Dewar, J. of the Manitoba Court of Queen’s Bench, delivered on November 8, 2012, Dewar, J. quoted from the Supreme Court of Canada in the case of R. v.

Nasogaluak , 2010 SCC 2 , which described such discretion as follows: “The wide discretion granted to sentencing judges has limits. It is fettered in part by the case law that has set down, in some circumstances, general ranges of sentences for particular offences, to encourage greater consistency between sentencing decisions in accordance with the principle of parity enshrined in the Code . But, it must be remembered that, while courts should pay heed to these ranges, they are guidelines rather than hard and fast rules.

A judge can order a sentence outside that range as long as it is in accordance with the principles and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarily unfit. Regard must be had to all the circumstances of the offence and the offender and to the needs of the community in which the offence occurred.” [ 16 ] It is my view that this is not a case where the needs of the community will be well served by recognizing Mr. Tran’s relative success within the community.

In other words, the specific circumstances of the offence and the personal circumstances of the accused do not encourage the adjustment of the general range in this particular case. This in my view because the accused was, prior to his involvement, already well on his way to leading a productive law and materially rewarding life. In reality, Mr. Tran has not been called upon to make any significant efforts to change his way of life. He was a relatively intelligent and pro-social individual before his decision to enter into the illegal drug industry world and essentially is still that person today.

No dire personal circumstances led Mr. Tran into drug trafficking. However, that being said, the court notes that Mr. Tran appears to show sincere remorse for what he has done and appears to have been influenced in such regard by his relative state of immaturity at the time of his offending behavior. He was after all, only 19 years of age. I also agree with the pre-sentence report conclusion that he is at low risk of re-offending. The court therefore views the accused as an excellent candidate for rehabilitation in the circumstances.

The court also observes that a conditional sentence can impose conditions that satisfy the elements of denunciation and deterrence. [ 17 ] It is my view that defence counsel is correct when she argues that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in s. 718.2 of the Code . As I mentioned before, the Supreme Court in R. v.

Proulx , 2000 SCC 5 , stated that a conditional sentence can accomplish the objectives of denunciation and deterrence. [ 18 ] The dicta in Proulx also make clear that there are no presumptions for or against the use of conditional sentences for any offence. That sentencing is an individualized process and a court must impose a sentence that is fit or appropriate for the specific offender given the nature and circumstances of the specific offence. The sentencing judge must of course always consider which sentencing objectives are most important in the particular circumstances of the case before him or her.

As was also discussed in Proulx , where both punitive and restorative objectives need to be achieved in a given case, a conditional sentence is likely a better sanction that incarceration. Conversely, where the need for punishment is particularly pressing and there is little opportunity to achieve restorative objectives, incarceration will likely be the more attractive sanction option.

However, even where restorative objectives cannot be readily satisfied the conditional sentence will be preferable to incarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively as incarceration. Of course where punitive objectives such as denunciation are particularly pressing, such as in cases in which there are aggravating circumstances, incarceration will generally be the preferable sanction.

This will be the case notwithstanding that restorative goals might be achieved by the imposition of a conditional sentence. [ 19 ] Conversely, a conditional sentence may provide sufficient denunciation even in cases where restorative objectives are of diminished importance, depending on the nature of the conditions imposed, the duration of the sentence and the circumstances of the offender and the community in which the conditional sentence is to be served. Of course there may be circumstances in which the need for deterrence will warrant incarceration.

Proulx also warns sentencing judges of the dangers of placing too much emphasis on deterrence. It reminds judges that the deterrent effect of incarceration is uncertain. It also reminds sentencing judges that a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of the sanctions. [ 20 ] On the evidence before me, I am satisfied that the accused is not presently a danger to the community and does not need to be separated from the community for that reason.

I am further satisfied that he is genuinely remorseful and it is very likely that this incident has changed him for the better. [ 21 ] I therefore conclude that deterrence of the accused is not a significant matter of concern.

Section 718.2 of the Code states that an offender should not be deprived of his or her liberty if less restrictive sanctions may be appropriate. As mentioned the court is required to consider all available sanctions other than imprisonment. My task is therefore to determine whether a conditional sentence can be designed for this accused such that it will adequately and appropriately address the principles of denunciation and general deterrence. [ 22 ] Although numerous cases were referred to by counsel, many others exist.

The best that can be said is that these cases provide guidance to a judge in my position but notwithstanding that I must remember that each case has its own facts and each offender his or her own circumstances. I confirm that I have reviewed and considered all the cases which have been referred to me notwithstanding that I have not made reference to all of them in this decision. [ 23 ] As almost always there are both mitigating and aggravating circumstances in this case. The nature and amount of the drugs are definitely an aggravating factor.

On the other hand, his youth, reflecting immature judgment, is a major mitigant. [ 24 ] I am satisfied that the goals of denunciation and general deterrence can be met by permitting the accused to serve his sentence in the community subject to appropriate stringent conditions. In so doing, I conclude that a conditional sentence will be fully consistent with the objectives of

section 718.2. Accordingly, I sentence Mr. Tran to the maximum conditional sentence, 2 years less a day to be

served in the community with respect to the trafficking charge, followed by 12 months of unsupervised probation. [ 25 ] In addition to the compulsory conditions set out in s. 742.3 (1) of the Code , the accused shall be kept under house arrest for the first 12 months of his sentence. [ 26 ] He is further ordered to report to his Supervisor within two (2) working days and thereafter as directed. [ 27 ] He is granted curfew exemptions as follows: i. For the purpose of attending programs and treatment as directed by the Sentence Supervisor and the necessary travel time to and from; ii.

Time attending to medical or dental appointments as may be pre-approved in writing by the Sentence Supervisor; iii. Time doing community service work and the necessary travel time to and from; iv. Emergencies involving the accused’s health; v.

A period of four (4) hours per week to attend to personal business matters as may be pre-approved in writing by the Sentence Supervisor [ 28 ] For the second 12 months less one day of his sentence, the accused is also to be provided an exemption from house arrest for the purpose of attending to his employment and/or his education and the necessary travel time to and from as same are pre-approved by his Sentence Supervisor. [ 29 ] The accused shall also comply with the following conditions: i.

He is to abstain absolutely from the consumption and possession of alcohol, drugs and other intoxicants except as may be prescribed by a medical doctor; ii. He is to attend, participate in and successfully complete such counselling, programming and treatment as may be directed by his Sentence Supervisor; iii. He is to complete within the first 12 months of his sentence, 150 hours of community service as directed by the Sentence Supervisor.

The Court recommends that the offender be assigned to community service work that will permit him to see firsthand and to repay directly with his time and efforts, those members of our community, some of whom have become helpless and needy as a result of an addiction to hard drugs; iv. He is to answer the door or telephone in response to authorities checking his compliance with his house arrest and must maintain a land line for such purpose; v.

The accused may possess one cell phone for business and personal use and shall make available to the authorities upon request the records of such cell phone’s use. [ 30 ] The Court further orders that the accused attend at the Winnipeg Police Service for the purpose of providing DNA samples within thirty (30) days from today. [ 31 ] There will further be a forfeiture of all items seized as well as a ten (10) year weapons and/or ammunition prohibition pursuant to s. 109 of the Code from this date forward. [ 32 ] The conditions of the unsupervised probation I previously mentioned are to be as follows: 1.

You are to keep the peace and be of good behavior; 2. You are to appear before the court when and if required to do so; 3. You are to notify the Court or your Supervisor of any change of address or change of name prior to implementing same. [ 33 ] The court imposes a 3 month concurrent sentence with respect to the “possess goods” charge. [ 34 ] There will also be an order for full costs and surcharges. “Original signed by: CORRIN, BRIAN, P.J.