R. v. Do (K.D.), 2011 ABQB 749

• Judge: Lee, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 02, 2011
• Citations: 2011 ABQB 749;(2011), 530 A.R. 202 (QB)

R. v. Do (K.D.) (2011), 530 A.R. 202 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.085

Her Majesty the Queen (Crown) v. Khanh Duy Do (accused)

(081441008Q1; 2011 ABQB 749)

Indexed As: R. v. Do (K.D.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Lee, J.

December 2, 2011.

Summary:

The accused was convicted of trafficking in cocaine (Controlled Drugs and Substances Act, s. 5(1)) and possession of proceeds of crime (Criminal Code, s. 355(b)). When arrested, the accused was in possession of $60 that he had received from an undercover police officer for .7 grams of cocaine that had been sold to the undercover officer in one transaction. The accused never had possession of the cocaine itself, but the court found that he and another individual who subsequently fled, were actively involved in a "dial a doper" operation. See [2011] A.R. Uned. 424 (Q.B.).

The Alberta Court of Queen's Bench sentenced the accused to 30 months' imprisonment.

Criminal Law - Topic 5834.8

Sentencing - Considerations on imposing sentence - Effect on citizenship or immigration application, status, etc. - The accused was convicted of trafficking in cocaine (Controlled Drugs and Substances Act, s. 5(1)) and possession of proceeds of crime (Criminal Code, s. 355(b)) - When arrested, the accused was in possession of $60 that he had received from an undercover police officer for .7 grams of cocaine that had been sold to the undercover officer in one transaction - The accused never had possession of the cocaine itself, but he and another individual who subsequently fled, were actively involved in a "dial a doper" operation - The Alberta Court of Queen's Bench held that the accused's possible jeopardy with immigration authorities was only a neutral factor - The relevant starting point sentence was 36 months' incarceration given that the accused was involved in a commercial operation on something more than a minimum scale as defined by the Court of Appeal - The primary mitigating factors were that the accused was a youthful first offender, with very strong family ties and support, and good prospects for the future - Specific deterrence was not likely required, but the type of offence required general deterrence - Given the mitigating factors, the court imposed a sentence of 30 months, concurrent on both counts.

Criminal Law - Topic 5837

Sentencing - Considerations on imposing sentence - Mitigating circumstances - [See Criminal Law - Topic 5834.8 ].

Criminal Law - Topic 5842.1

Sentencing - Considerations on imposing sentence - Post-conviction or post-charge conduct - [See Criminal Law - Topic 5848.2 ].

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - The accused was convicted of trafficking in cocaine - On sentencing, he submitted, inter alia, that his commendable post offence conduct warranted a significant reduction in the sentence that the court would otherwise order - The accused completed courses, upgraded himself, and assisted various family members during this time, amongst other things - The Alberta Court of Queen's Bench referred to s. 719(3) of the Criminal Code which provided that "a court may take into account any time spent in custody by the person as a result of the offence." - The court stated that "While I accept that the pretrial restrictions on an accused's freedom may affect the duration of his sentence pursuant to Section 719(3), there is no authority I know of for the proposition that commendable post-offence conduct warrants a further reduction beyond Section 719(3). If this were the case, an Accused on release for a number of years could end up with no sentence to serve just because he obeyed the terms of his release, which it is presumed he must do in any event." - See paragraphs 14 to 19.

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - [See Criminal Law - Topic 5834.8 ].

Criminal Law - Topic 5972

Sentence - Money laundering or proceeds of crime - [See Criminal Law - Topic 5834.8 ].

Cases Noticed:

R. v. Rahime (S.) et al. (2001), 286 A.R. 377; 253 W.A.C. 377; 2001 ABCA 203, refd to. [para. 6].

R. v. Keller (B.) - see R. v. Rahime (S.) et al.

R. v. Charles (T.) - see R. v. Rahime (S.) et al.

R. v. Sayadi (S.) - see R. v. Rahime (S.) et al.

R. v. Ismael (H.) - see R. v. Rahime (S.) et al.

R. v. Wong (S.) (2001), 159 B.C.A.C. 166; 259 W.A.C. 166 (C.A.), refd to. [para. 6].

R. v. Chaves (D.M.) (2002), 215 Sask.R. 89 (Q.B.), refd to. [para. 6].

R. v. Sudsbury (L.J.) (2002), 202 N.S.R.(2d) 327; 632 A.P.R. 327 (S.C.), refd to. [para. 6].

R. v. Henderson (J.D.) (2002), 313 A.R. 182; 2002 ABQB 442, refd to. [para. 6].

R. v. Petrovich (D.) (2002), 318 A.R. 390 (Prov. Ct.), refd to. [para. 6].

R. v. Evans (C.P.) (2002), 315 A.R. 368; 2002 ABPC 74, refd to. [para. 6].

R. v. Gronau (J.W.) (2002), 314 A.R. 160 (Q.B.), refd to. [para. 6].

R. v. Fung, [2002] M.J. No. 322 (Prov. Ct.), refd to. [para. 6].

R. v. Salih (M.S.) (2002), 326 A.R. 123; 2002 ABPC 106, refd to. [para. 6].

R. v. Taleb (J.M.) (2002), 322 A.R. 381; 2002 ABPC 130, refd to. [para. 6].

R. v. La (P.K.) (2003), 338 A.R. 39; 2003 ABQB 391, refd to. [para. 6].

R. v. Panousis (C.), [2004] A.R. Uned. 95; 2004 ABCA 211, refd to. [para. 6].

R. v. Bowen (K.L.), [2007] A.R. Uned. 10; 2007 ABCA 40, refd to. [para. 6].

R. v. Lee (J.A.) (2007), 425 A.R. 21; 418 W.A.C. 21; 2007 ABCA 288, refd to. [para. 6].

R. v. Jaber (S.A.) (2007), 425 A.R. 58; 418 W.A.C. 58; 2007 ABCA 383, refd to. [para. 6].

R. v. Parker (D.S.), [2011] A.R. Uned. 636 (Prov. Ct.), refd to. [para. 9].

R. v. Conyers (R.), [2010] A.R. Uned. 610 (Q.B.), refd to. [para. 10].

R. v. Bricker (C.J.), [2006] A.R. Uned. 142 (Prov. Ct.), refd to. [para. 11].

R. v. Hamilton (M.A.) and Mason (D.R.) (2004), 189 O.A.C. 90; 72 O.R.(3d) 1 (C.A.), refd to. [para. 12].

R. v. Duhra (H.S.) (2011), 505 A.R. 248; 522 W.A.C. 248; 2011 ABCA 165, refd to. [para. 12].

R. v. Belenky (A.S.) (2010), 477 A.R. 354; 483 W.A.C. 354; 2010 ABCA 98, refd to. [para. 13].

R. v. P.F. (2011), 529 A.R. 366; 2011 ABQB 628, refd to. [para. 15].

R. v. Downes (C.) (2006), 208 O.A.C. 324; 79 O.R.(3d) 321 (C.A.), refd to. [para. 17].

R. v. Lau (W.T.) (2004), 357 A.R. 312; 334 W.A.C. 312; 2004 ABCA 408, refd to. [para. 20].

R. v. Maskill (1981), 29 A.R. 107 (C.A.), refd to. [para. 24].

R. v. Chung (S.B.) (1993), 135 A.R. 351; 33 W.A.C. 351 (C.A.), refd to. [para. 26].

R. v. Marchesi (R.J.) (2009), 460 A.R. 294; 462 W.A.C. 294; 2009 ABCA 304, refd to. [para. 28].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3) [para. 19].

Counsel:

Patricia Giroux (Public Prosecution Service of Canada), for the Federal Crown;

Ali Moughel (Tarrabain & Company), for the accused.

This matter was heard on November 25 and 30, 2011, by Lee, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 2, 2011.