) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 6484

CITATION : R. v. Lao, Nestorovski & Mac , 2013 ONSC 6484 COURT FILE NO.: 3817/12 DATE: 2013-10-17 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – QUAN CHAN LAO, JOSEPH NESTOROVSKI, and KHUAN MIN MAC Defendants ) ) ) ) ) ) ) )))) G. Roy & J. Selvaratnam, for the Crown J. Penman , for the Defendant Lao J. Park , for the Defendant Mac S. Feldman, for Defendant Nestorovski ) ) HEARD: September 9, 2013 Justice B. Glass Reasons for Sentence for Each Defendant [ 1 ] In April 2013, Mr. Lao entered guilty pleas with facts to be presented after the trial of Mr. Nestorovski and Mr.

Mac. [ 2 ] The three Defendants were part of a drug project investigation. Mr. Lao pled guilty to : [ 3 ] Count 1 – trafficking cocaine in the quantity of 4 ounces. This was done in 2 sections. The first quantity was 1.5 ounces for $1500, and the second was 2.5 ounces for $2500. The buyer was an undercover officer. [ 4 ] Count 3 – trafficking cocaine in the quantity of 29.5 grams for $1,000. The buyer was an undercover officer. [ 5 ] Count 4 – trafficking methamphetamine to an undercover officer in the quantities of a .6 gram sample, and a baggie of the substance weighing 27 grams for $1,000 in $50 bills.

The buyer was an undercover officer. [ 6 ] Count 5 – possession of cocaine for the purpose of trafficking in the quantity of 256 grams. [ 7 ] Count 6 – conspiracy to traffic cocaine with Carl Jones. The buyer was to be an undercover officer. [ 8 ] Count 7 – conspiracy to traffic cocaine with Joseph Nestorovski in the quantity of 1 kilo for $40,000. The buyer was to be an undercover officer. This did not go to completion. [ 9 ] Count 10 – conspiracy to traffic methamphetamine to an undercover officer. The quantity was to be 2 kilos for $81,000.

The transaction did not proceed to completion. [ 10 ] Some of the cocaine was quantitatively analyzed at 38%, 32%, 41%, 32%, 69%, 72% and 72%. The first three percentages were the result of analyzing 4 ounces sold to Detective Truong on April 23, 2010. The fourth percentage was the analysis of a 1 ounce sale to Detective Truong on May 28, 2010. The fifth, sixth and seventh percentages were the analyzes of three samples from a 9 ounce seizure on June 16, 2010.

Sentence Sought by the Crown for Quan Chan Lao [ 11 ] The Crown requests a global sentence of 8—9 years for the counts with the undercover officer and 5 years consecutive for counts 6 and 7 with Mr. Jones and Mr. Nestorovski for a total of 13-14 years in custody less credit for pre-trial custody. [ 12 ] Mr. Roy points to cases that categorize both cocaine and methamphetamine as equally serious drugs that should lead to major custodial sanctions. [ 13 ] In addition, the Crown seeks a DNA order and a lifetime weapons prohibition order. [ 14 ] The Crown acknowledges that pre-trial custody runs from July 2010.

There might be an argument that Mr. Lao cannot ask for pre-trial custody credit greater than 1 day for each day in custody because his bail was cancelled after his first arrest and he was caught and charged with further counts; however, Mr. Roy acknowledges that the investigating police service wanted Mr. Lao released on bail so that the investigation could continue. Thus, the prosecution was content to see Mr. Lao released on bail.

Sentence Submissions by the Defendant Quan Chan Lao [ 15 ] Ms. Penman, for Mr. Lao, suggests that the Crown request is too high and that the global sentence should be 6 years with credit for pre-trial custody at the ratio of 1.5 days for each day. Mr. Lao has been in custody for roughly 3 years so that the credit would amount to 4 ½ years leaving a balance of 1 ½ years in custody. [ 16 ] Counsel for Mr. Lao notes the letters of support filed on behalf of the Defendant from family and friends. They speak favourably and positively for him. [ 17 ] Mr. Lao expressed an apology for his actions.

This activity occurred during a dark time of his life. He has lost his father and a very good friend since 2010. He told the court that he made bad choices at the time of these offences. Sentence for Quan Chan Lao [ 18 ] Both the Crown and the Defence for Mr. Lao provided several cases for consideration. I might add that cases regarding Mr. Nestorovski and Mr. Mac were filed and referenced by counsel. [ 19 ] There is a consistency of opinion from courts in Canada recognizing that both cocaine and methamphetamine are drugs that are harmful substances and well beyond being minor in nature.

The sentences for these two substances receive similar sentence ranges. [ 20 ] Mr. Lao is not a street trafficker who relies on either or both substances for his daily living. He does not distribute them to sustain a drug dependency habit. [ 21 ] Several letters of support for Mr. Lao were filed by Ms. Penman. They have a consistent theme of positive comments about Mr. Lao along with information that he has had difficulties in his life with the loss of his father and other relatives. He appears to have affirmative features with respect to working in the music industry. [ 22 ] Mr.

Lao has a lengthy criminal record. The convictions commenced in 1990 in Youth Court and proceeded through to 2009. They reflect property offences of dishonesty, weapon charges, drug offences, driving while his ability was impaired by alcohol, and assault causing bodily harm. His convictions from criminal offences have drawn sanctions of a few months in custody to fines, a conditional sentence and suspended sentences. [ 23 ] One mitigating factor for Mr. Lao is that he entered pleas of guilty thereby reducing the length of time for trial.

He had indicated an intention to plead guilty to several counts early in the proceedings in the Superior Court. The conspiracy counts had been the outstanding matters until the completion of a Charter application pursuant to

section 11(

b) for delay as well as the Garofoli application decision. The

section 11(

b) Charter decision was released on March 25, 2013 following two days of hearing on February 22 nd and March 13 th . The Garofoli application was argued on April 2, 3, 4, 2013 and that decision was released on April 5 th , 2013. Both applications were dismissed. There had been within the Garofoli application an application to cross-examine the affiant; however, that application was dismissed. Mr. Lao entered his pleas of guilty on April 5 th . [ 24 ] The letters of support filed carry positive comments about Mr. Lao.

Even though he has the negative features flowing from these counts and a criminal record, the authors have explained positive features about the Defendant. These letters enhance an understanding of Mr. Lao. [ 25 ] Denunciation of conduct shown with the several counts to which Mr. Lao entered pleas of guilty along with general deterrence to the public at large should reflect a significant sentence for Mr. Lao. Further, specific deterrence to Mr. Lao for these offences taking into account the negative factors also should lead to a major global term of imprisonment.

Mitigating factors do not overcome these considerations. Consideration of Pre-trial Custodial Credit for Mr. Lao [ 26 ] One might consider whether credit for pre-trial custody should be set at 1.5 days for each day in custody because the extent of pre-trial conferences involving all Defendants was both considerable and productive in the long run. Although the

section 11 (

b) Charter application and the Garofoli application were unsuccessful, they did not engulf a tremendous amount of time in February and March of this year. He has been in custody from July 2010. Between July 2010 and December 2012, Mr. Lao had 17 disciplinary infractions leading to solitary confinement at Central East Correctional Centre. [ 27 ] There has been no infraction at Central East Correctional Centre since December 2012. The Defendant had been released in June 2010 following his arrest; however, I note that the Crown wanted Mr. Lao out of custody so that the drug investigation project could continue.

As a result, continued contact with Mr. Lao by the undercover officer occurred until the project was shut down in July 2010 with his arrest. Denying him the opportunity for consideration for enhanced pre-trial custodial credits because of the provisions of section 719(3.1) of the Criminal Code might appear to be unfair because he was out of custody at the wish of the investigating police service. The

section precluding the opportunity for enhanced credit is clear. There does not appear to be an exception with the circumstances surrounding Mr. Lao whereby the court might conclude a justification for enhanced credit. To grant enhanced credit would be contrary to the provisions of the

section unless section 719(3.1) of the Criminal Code were found to be contrary to law. There has been no submission that the

section is improper and unenforceable. In this case, there is no suggestion of entrapment. [ 28 ] I conclude that I am not empowered to grant enhanced credit for the pre-trial custody; however, I shall reflect an accommodation for the situation when considering the global sentence for Mr. Lao.

[ 29 ] The global sentence for the offences will be a period of 9 years less a credit of 1 day per day of pre-trial custody. Both sides acknowledge pre-trial custody, after taking away a 30-day sentence, is 3 years and 1 month. The net global sentence will be 5 years and 11 months. [ 30 ] The break down for the counts for this global sentence for Mr.

Lao, prior to a deduction for pre-trial custody credit, is: Count 1 : trafficking cocaine 2 years concurrent Count 3: trafficking cocaine 2 years concurrent Count 4: trafficking methamphetamine 2 years concurrent Count 5: possession for the purpose of trafficking 2 years concurrent Count 6: conspiracy to traffic cocaine 7 years consecutive to counts 1,3, 4 and 5.

Count 7: conspiracy to traffic cocaine 7 years consecutive to counts 1,3, 4, and 5 and concurrent to count 6 Count 10: conspiracy to traffic methamphetamine 7 years consecutive to counts 1,3,4, and 5 and concurrent to counts 6 and 7 [ 31 ] Total sentence globally is 9 years less a credit of 1 day for each day of pre-trial custody for a net global sentence of 5 years and 11 months . The pre-trial custodial credit is 3 years and 1 month. [ 32 ] There will be a DNA order pursuant to

section 487.051 of the Criminal Code for the provision of samples of bodily substances that are reasonably required. [ 33 ] An order for life shall issue prohibiting Mr. Lao from possessing any firearm other than a prohibited firearm or a restricted firearm, or any crossbow, restricted weapon, ammunition or explosive substance Sentence Considerations for Joseph Nestorovski [ 34 ] Mr. Nestorovski was found guilty of count 7 of conspiring with Mr. Lao to traffic in 1 kilogram of cocaine. The price for a kilo of cocaine was $40,000. The anticipation was a sale to an undercover officer.

The deal was not completed. [ 35 ] The Defendant has a criminal record from 1994 to 2012. [ 36 ] Mr. Nestorovski told the court that he apologized for time wasted with these matters. He apologized to his family who have suffered from his actions and the situation of this case. Mr. Nestorovski regrets the pain he has caused his sister who has been there supporting him throughout the process of this case. Position of the Crown [ 37 ] The Crown recommends a sentence for Mr.

Nestorovski in the range of 5-7 years taking into account the seriousness of cocaine as a harmful drug, the need for denunciation of the offence, and both general and specific deterrence. Position of Joseph Nestorovski [ 38 ] Mr. Feldman, for Mr. Nestorovski, points out that he has been restricted to a house arrest bail release order for 3 years and urges that the order be considered for credit. He submits that the sentence should be no more than 2-3 years.

Sentence of Joseph Nestorovski [ 39 ] I might note that in the period of the judicial interim release, which amounted to strict house arrest except for work or school or in the company of his surety, he has two convictions for breach of his bail terms. One could conclude that the Defendant did not take the bail terms to heart. Further, the restriction to remaining at home had exceptions to enable Mr. Nestorovski to attend work or school or to be out of the residence with his surety.

Those circumstances do not appear to be exceptional circumstances justifying an enhancement of pre-trial custody beyond 1 day for each day in custody. [ 40 ] This sentence reflects a serious offence with the intended quantity being 1 kilogram of cocaine with a value of $40,000. Mr. Nestorovski has a criminal record commencing in Youth Court and has continued thru to 2012. The record filed as an exhibit covered 1997 through to 2008. Mr. Feldman, for Mr.

Nestorovski, advised that there were additional convictions in 2010, 2011 and 2012 for possession of marihuana, two fail to comply with a recognizance and one fail to comply respectively. The criminal record encompasses theft, assault, fail to comply with recognizances, mischief, break and enter and theft, drugs, assault with a weapon. His sentence history includes probation, short custodial sentences, intermittent sentences and fines.

When considering an appropriate sanction for the current offence, the court is not dealing with a person who has never had a custodial sanction for criminal behaviour. [ 41 ] Specific deterrence is required for Mr. Nestorovski. A kilogram of cocaine is no small amount of an illicit drug. Further, the substance is a harmful product. With a lengthy record and a continuation of actions in breach of the law even while on judicial interim release in 2011 and 2012, Mr.

Nestorovski appears to have been prepared to make his own rules. [ 42 ] With a significant illicit drug in the form of cocaine, general deterrence to the public at large should be taken into account so as to discourage others from engaging in this type of criminal activity. [ 43 ] Denunciation of the selling of cocaine is important because it is a very harmful drug. The public needs to be protected.

[ 44 ] A pre-sentence report was presented to the court for Mr. Nestorovski. The report shows both positive and negative aspects to the Defendant. He appears to have been co-operative and respectful during the preparation of the pre-sentence report. Re-offending while on probation in the past might cause one have some caution about how he might conduct himself in the future. The positive features are that Mr. Nestorovski had a positive upbringing and has continued to maintain his family contacts. He does not appear to have any dependency upon drugs or alcohol. [ 45 ] The sentence for Mr. Nestorovski will be imprisonment for 6 years. [ 46 ] There will be a DNA order pursuant to

section 487.051 of the Criminal Code for the provision of samples of bodily substances that are reasonably required. [ 47 ] An order for life shall issue prohibiting Mr. Nestorovski from possessing any firearm other than a prohibited firearm or a restricted firearm, or any crossbow, restricted weapon, ammunition or explosive substance. Sentence Considerations for Khuan Minh Mac [ 48 ] Mr. Mac was found guilty of conspiracy to traffic 2 kilograms of methamphetamine. The intended price was $81,000. The other conspirator Quan Lao. This offence was set out in count 10 of the indictment.

Position of Khuan Minh Mac [ 49 ] Mr. Mac has one criminal conviction in 1997 of possession of weapons for forgery five counts for which he was sentenced to 11 months in custody concurrent on each followed by probation for 1 year. He is 59 years of age and is not employed because of a back injury following a motor vehicle accident. He came to Canada in 1981 from Vietnam and has limited education. [ 50 ] Mr. Mac lives with his wife who has a significant eyesight loss issue. She is blind in one eye and has lost much of the sight in her other eye. They live on a disability income.

Their adult children live at home as well. [ 51 ] Letters of support have been filed by his children. [ 52 ] Ms. Park, for Mr. Mac, submits that this Defendant lives modestly thus indicating that he does not have money from a drug business. She emphasizes that the evidence indicates that her client was more interested in obtaining a sofa from Mr. Lao than dealing drugs so that he should be considered a very minor player in this drug investigation project. [ 53 ] Ms.

Park points out that without a major criminal record, without any conviction of a crime since 1997, with his back disability, with his role as primary caregiver to his wife, with a modest style of living, Mr. Mac should be considered for a conditional sentence for a period of less than 2 years. Position of the Crown Regarding Mr. Mac [ 54 ] On the other hand, the Crown opposes a conditional sentence pointing to the seriousness of methamphetamine. Courts have rated this substance in a similar serious category of cocaine.

This is not a victimless crime, but rather is one promoting providing a harmful substance to the public thus causing harm to people. [ 55 ] This is not a victimless crime. It is one designed to make money for persons involved in the distribution of an illicit drug. The substance is a drug that is harmful to the user. Denunciation of such distribution, had the conspiracy advanced further to the trafficking of methamphetamine, cannot be ignored. Further, the public at large should be discouraged from engaging in such activity. In particular, Mr.

Mac, even though he is 59 years of age with a wife with limited eyesight, must understand that engaging in such activity will result in a major jail sentence. [ 56 ] The Mr. Selvaratnam for the Crown recommends a sentence of 9-10 years imprisonment together with a DNA order and a lifetime weapons prohibition order. Sentence of Khuan Minh Mac [ 57 ] Such an offence should be concluded with more than a two-year term of imprisonment. That eliminates consideration for a conditional sentence. I am not persuaded that Mr. Mac’s circumstances reduce the importance of this offence as recommended by Ms.

Park. [ 58 ] His record from 1997 was for 5 offences leading to a custodial sentence on a first offence. That indicates to me that the circumstances were serious. [ 59 ] The letter from Dr. Sharpe regarding the eyesight loss of the Defendant’s wife is dated 1991. The handicap of his wife existed in 1997, but that does not appear to have stopped Mr. Mac from engaging in illegal activities in 1997. Such a factor reduces the impact of his wife’s problem when considering a proper sentence here. [ 60 ] I note that the children of Mr. Mac and his wife are adults and live at home. If Mr.

Mac were sentenced to a prison term, there are family members to help his wife. [ 61 ] I conclude that with Mr. Mac denunciation of conspiring to traffic a serious drug, general deterrence to the public from engaging in such activity and a specific sanction to Mr. Mac not to engage in such actions again are important. There is no rehabilitation feature at play here. He has experienced a jail sentence in the past. Any consideration of him caring for his wife as a factor to reduce his sentence is not sufficient to warrant sentence of less than 2 years incarceration.

[ 62 ] Had this conspiracy advanced to the actual trafficking of methamphetamine, this would have been a crime for profit. [ 63 ] In conclusion, the sentence for Mr. Mac on count 10 will be imprisonment for a term of 7 years. [ 64 ] There will be a DNA order pursuant to

section 487.051 of the Criminal Code for the provision of samples of bodily substances that are reasonably required [ 65 ] An order for life shall issue prohibiting Mr. Mac from possessing any firearm other than a prohibited firearm or a restricted firearm, or any crossbow, restricted weapon, ammunition or explosive substance. Conclusion for All Three Defendants [ 66 ] Mr. Lao shall serve a global net sentence of 5 years and 11 months after being credited for pre-trial custody for 3 years and 1 month. A DNA order and a lifetime weapons prohibition order will issue as set out above. [ 67 ] Mr.

Nestorovski shall serve a sentence of 6 years . A DNA order and a lifetime weapons prohibition order will issue as set out above. [ 68 ] Mr. Mac shall serve a sentence of 7 years . A DNA order and a lifetime weapons prohibition order will issue as set out above. Justice B. Glass Released: October 17, 2013