R. v. Liu, 2013 ONCJ 82

Citation: R. v. Liu , 2013 ONCJ 82 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JAMES LIU Before Regional Senior Justice Finnestad Reasons for Sentence delivered on February 1, 2013 Ms. A. Francis ........................................................................................................... for the Crown Mr. R. Rusonik ........................................................................................................... for James Liu FINNESTAD R.S.J.: [ 1 ] On July 29, 2011, a general warrant for covert entry was executed at the home of James Liu.

Police located what was believed to be 7.9 grams of cocaine, 21 grams of benzocaine, 5.1 grams of crystal methamphetamine, one gram of heroin and a 25-gallon drum of benzocaine. These discoveries suggested his involvement in the production of methamphetamines. Intercepted conversations subsequently disclosed Mr. Liu discussing his discovery of a tracking device on his car, instructing his brother and sister to “get rid of everything”, and his indications to others that they should not be doing any more “jobs”. He referred to outstanding receivables of $1.7 million.

On November 30, 2011, police executed a search warrant at his house and located 10.9 grams of ecstasy, as well as almost $7,000 in cash. On September 11, 2012, Mr. Liu entered a guilty plea to a charge of possession of cocaine for the purpose of trafficking, relating to the July 29 th discovery. He had through counsel surrendered a number of items to police, and reports were pending as to the nature of those items. Submissions were to be made subsequently as to the mitigating effect on sentence of that surrender. [ 2 ] On November 8, 2012, submissions as to sentence were made. Mr.

Liu is married with one young child. His wife is pregnant with their second. He grew up in a strict immigrant family of very modest means. After his mother’s death he became involved in crime. He has spent a significant part of the last decade in custody. Since his release on bail in 2011 he has not been charged with further offences. He has been self-employed in the trading business and provided tax records to substantiate that he has been deriving an income from this since his release on bail. [ 3 ] Mr. Liu has a criminal record.

In 2000 he was convicted of possession for the purpose of trafficking and was sentenced to 3 years and 9 months. A conviction for trafficking in a credit card at the same time led to a 3-month consecutive sentence. In 2004 he was convicted of dangerous driving and received a 6-month sentence and probation. [ 4 ] Counsel are joined in recommending a sentence of 15 months’ incarceration as appropriately reflecting the various aggravating and mitigating factors present in Mr. Liu’s situation, before the issue of surrendered items is considered.

This includes the relatively early plea with all that that entails, balanced against the strongly commercial nature of Mr. Liu’s level of involvement with drugs. I accept that joint recommendation as an appropriate one in the circumstances. Where counsel differ is with respect to the weight to be given to a number of items which Mr. Liu has arranged to have delivered to police custody. The Crown takes the position that as a matter of policy, no consideration can be given in these circumstances.

The defence submits that while this case does not fall strictly within those cases wherein consideration is given for providing information that assists the police, it would be proper to reduce a sentence in light of this surrender. [ 5 ] The items surrendered to police are as follows:

(1) A fully operational 9 mm machine pistol; (2) 8 kilograms of low quality methamphetamine with a potential street value of $10 per gram. It took several lab tests before it was confirmed that this substance was indeed methamphetamine.

It was a heavily adulterated mix and the report stated that “it would appear that an attempt to manufacture methamphetamine has produced methamphetamine and related hydrates and polymers”; (3) 22 kg of ephedrine with a bulk value of $70,000; and (4) 10 gallons of GBL with a bulk value of $15,000. [ 6 ] A number of the cases filed by the defence deal with the mitigating effect on sentence where information or other co- operation has been given to police by the defendant. In most cases, the defendants were drug couriers who provided information at the time of their arrest.

[7] In R. v. John Doe, [1999] O.J. No. 5089, Justice Hill of the Superior Court of Justice dealt with the sentencing of a mancharged as a courier with importing cocaine with a street value of a quarter million dollars. He provided police with information that ledto the arrest of two others for possession of cocaine at the airport and another for possessing a firearm. Justice Hill held that there arepublic policy reasons for encouraging co-operation by an accused in identifying additional crimes and criminals.

The case noted that oneof the most important weapons in the hands of police is the informer, and it is in society’s interests to encourage criminals to inform ontheir colleagues. Justice Hill listed several public policy reasons for a reduction of the punishment otherwise proportionate to theinformer’s own crime which include:

(1) The authorities can apprehend serious criminals including upper-level offenders in criminal organizations;

(2) The police are able to seize contraband or prevent the distribution of drugs;

(3) The speedy proferring of information is encouraged as part of acceptance of responsibility for their own actions;

(4) Known availability of a sentence reduction for meaningful assistance to police encourages other informers to come forward;

(5) The spectre of leniency for informer assistance encourages criminals to have less confidence in each other;

(6) Time in custody may need to be in protective custody;

(7) The informer’s family may be at risk of vengeance; and

(8) Where the informer’s identity is known, his days of living by crime are probably at an end. [8] Justice Hill further held that in addition to considering hardship occasioned to the accused by co-operating with police,the court is obliged to assess whether real assistance was forthcoming.

He referred to questions of whether that information was alreadywithin knowledge of the police, whether it led to drug seizures or arrests, whether it led to others being prosecuted through to conviction,if it led to the recovering of property and whether the effect of the informer’s plea and information regarding co-accused affected thedecision of co-accused as to whether or not a trial was required. Justice Hill held at para. 32 that “as a general rule, the full and frankdisclosure by the accused/informer must objectively prove to be of assistance in order to warrant attention on sentencing”.

In that case,while a sentence of four to five years would ordinarily be just and appropriate, a discount was applied for co-operation and a conditionalsentence of two years less one day imposed. [9] R. v. C.N.H., (ON CA), [2002] O.J. No. 4918 (C.A.), also dealt with a drug courier arrested at theairport. He provided information which ultimately did not lead to any arrests or seizures. Mr.

Justice Rosenberg referred to therequirement in the John Doe case that to be given credit on sentence, information provided must lead to an arrest or seizure, or thebanking by police of useful intelligence information, and concluded that this was too narrow an expression of the circumstances in whichcredit should be given for assistance to the police. He noted that many of the policy considerations for giving credit for assistance topolice applied whether or not the information turned out to be useful. The Court noted that the motive for giving assistance wasirrelevant, whether it be remorse or self-interest.

The reward in terms of sentencing should be granted if the defendant has genuinely co-operated with authorities, whether or not the information supplied objectively turns out to be effective. [10] R. v. A.B.; R. v. C.D., (ON SC), [2004] O.J. No. 5220 (S.C.J.), was a decision of Justice Hill. Bothdefendants were arrested at the airport as couriers. A.B. offered to identify the person at whose behest she had imported the drugs and toparticipate in a controlled delivery but authorities were unable to make an arrest. C.D.’s assistance led to the arrest of two others.

Bothwere given conditional sentences of imprisonment. Justice Hill noted that where there were extraordinary mitigating factors a sentencemay be imposed that is below the range of sentence established for that offence. He further noted that the significant mitigation insentence would encourage other arrested couriers to cooperate in a timely way. The value of the information provided is to enableauthorities to speedily arrest other offenders and prevent the further distribution of drugs. [11] R. v. Chau, [2003] O.J. No. 2827 (S.C.J.), is a decision of Justice Durno.

There, the defendant was sentenced on chargesof cultivating marijuana. A conditional sentence was imposed. Justice Durno concluded that the defendant “voluntarily providedsignificant information and that the information provided, if acted upon might have led to the arrest and prosecution of the principals inthe production” (para 14). [12] I was provided with the case of R. v. Curson, [2001] O.J. No. 4511, in which reference was made to the defendantproviding inculpatory statements to the police and testifying at the preliminary hearing of two of his former co-accused.

This mitigatingfactor was considered in imposing sentence. In R. v. Collingwood, [1996] O.J. 3864, a mitigating factor was the defendant’s co-operation with police which led to the arrest of three accomplices. [13] It is noteworthy that Mr. Liu has managed to surrender the items noted without incriminating one single person. Nocriminal organization has been disrupted, no one else has been arrested, and no investigations have been furthered. Any drugs seizedcame from him.

While counsel notes through the decision of the Court of Appeal for Ontario that it is not whether the information givenultimately leads to anything concrete that matters, but whether the defendant genuinely offers assistance, I note that virtually none of thepolicy reasons given for justifying a reduction in sentence as a result are present here.

There is no apprehension of upper levelcriminals; the only contraband seized was his own; the surrender of items does not encourage criminals to have less confidence in eachother; there need be no fear of reprisals to him or his family, as no one else was incriminated; his time in jail will not be any moredifficult; and he has not burned any bridges in terms of returning to a life of crime.

These factors affect the question of whether thedefendant has “genuinely co-operated with authorities” and whether the policy reasons which justify a reduction in sentence are presenthere. [14] As I indicated to counsel, far from sending a chill through the drug-dealing community Mr. Liu’s actions may well havewon him respect and admiration, for he has provided the police with contraband and sought a resultant reduction in sentence withouthaving one single negative consequence to the existing drug trade in this city.

[ 15 ] That being said Mr. Liu has turned over drugs, and of a significant value at that. The value is estimated at about $165,000. These are drugs that have not been sold on the streets of Toronto, and have not contributed to the tragedy that is addiction to methamphetamines, nor the use of what has been called the “date rape” drug. The profits have not swelled the coffers of drug dealers, nor boosted the profitability of that line of criminal conduct.

The methamphetamine is something which can be manufactured and turned over, but the other drugs were of necessity pre-existing and their delivery means that those drugs are not available for sale on the market. Of the greatest significance is the machine gun, an incredibly dangerous weapon which has been removed from the streets of this city. The surrender of such weapons is to be strongly encouraged. I reject an argument that if a reduction in sentence is given for such surrenders, people will be tempted to stockpile or import such weapons against the possibility of arrest.

The possession or importation of such weapons is of at least equivalent seriousness, and a greater risk will not be assumed in order to offset punishment for a lesser crime. If providing a reduction in sentence leads to the surrender of more weapons from the streets of Toronto then that is as salutary an effect as that gained by sending a chill through criminal organizations when an informer leads to an arrest. [ 16 ] It is clear that co-operation with police is an extraordinary circumstance that can lead to a reduction of sentence beyond the range which would ordinarily be appropriate.

However, since few of the facts or policy reasons behind giving credit for providing information are present in the circumstances of this case, I do not find that it falls within the same category as the cases cited in support of this proposition. In this regard I am in agreement with the Crown’s submissions. However, I am satisfied that the provision of the items surrendered to police is such that it should be recognized as constituting an extraordinary circumstance that can also lead to a reduction of sentence beyond that which would otherwise be appropriate.

There is no doubt that the surrender came at some cost to Mr. Liu, that there was as a consequence fewer drugs available to distribute on the streets of Toronto, and most importantly that an instrument of death in the form of a machine gun has been removed from the hands of the criminal element of this city. It is appropriate that this be recognized in a reduction of sentence below the range of 15 months that would otherwise be appropriate. [ 17 ] Counsel for Mr. Liu seeks a conditional sentence of imprisonment.

I am not persuaded that this is appropriate, notwithstanding that the sentence recommended is one of less than two years. I note that Mr. Liu has previously been sentenced to a significant penitentiary sentence for possession of drugs for the purpose of trafficking, and that this proved an insufficient deterrent to him. He was once again involved in possession for the purpose of trafficking for purely commercial reasons. There were no addiction issues that led to his actions, but solely a desire for profit.

He deliberately took the risks, again, of selling these dangerous and illegal substances to others, and of being caught, for the sake of potentially significant financial gain. He has the support of his family, but I note the level of family awareness, if not involvement, suggested by the intercepts of conversations he had with them. There is no real change in his circumstances beyond his finding some legitimate source of income.

In my view the need for denunciation and specific deterrence in these circumstances can only be realized by a sentence of actual incarceration. [ 18 ] I begin with an agreed submission of 15 months as an appropriate sentence from which to start. I give Mr. Liu credit of six months for the surrender of the drugs and more importantly, of the machine gun, with a full recognition of the significance of giving that discount. The sentence imposed is one of nine months incarceration. [ 19 ] There is a forfeiture order of items seized on consent and an order pursuant to s. 109 for life.

The Victim Fine Surcharge is waived. Released: February 1, 2013 Signed: “Regional Senior Justice Finnestad”