R. v. Lau,

• Judge: Hunt,Johnstone,Watson
• Neutral Citation: 2004 ABCA 408
• Court: Court of Appeal (Alberta)
• Date: 18 October 2004
• Citation: (2004), 357 A.R. 312 (CA),2004 ABCA 408,357 AR 312,36 Alta LR (4th) 228,193 CCC (3d) 51,[2004] CarswellAlta 1712,[2004] AJ No 1348 (QL),334 WAC 312,357 A.R. 312,334 W.A.C. 312,[2004] A.J. No 1348 (QL),(2004), 357 AR 312 (CA)

R. v. Lau (W.T.) (2004), 357 A.R. 312 (CA);

    334 W.A.C. 312

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. DE.072

Her Majesty the Queen (respondent) v. Willy T. Lau (appellant)

(0303-0306-A; 2004 ABCA 408)

Indexed As: R. v. Lau (W.T.)

Alberta Court of Appeal

Hunt, J.A., Johnstone and Watson, JJ.(ad hoc)

December 16, 2004.

Summary:

An accused was sentenced to 3.5 years' imprisonment for possession of cocaine for the purpose of trafficking. The accused appealed the sentence.

The Alberta Court of Appeal allowed the appeal and reduced the sentence to 19 months' imprisonment.

Criminal Law - Topic 5806

Sentencing - General - Co-accused - Sentence parity - An accused was convicted of possession of cocaine for the purpose of trafficking - The accused was a passenger in a jeep driven by the co-accused - A backpack in the jeep contained 1 kg of cocaine - The accused was on judicial interim release for conspiracy to traffic in cocaine - The conspiracy charge was stayed - At sentencing, both accused were in their early twenties - The co-accused had two youth convictions for cocaine trafficking - The sentencing judge used a 4.5 year starting point for wholesale trafficking and concluded that the appropriate sentences were 5.5 years' imprisonment - He reduced the co-accused's sentence to five years because of 2.5 months' presentence custody and his age - He reduced the accused's sentence to 3.5 years because of his age, community support and 14.5 months' presentence custody - The Alberta Court of Appeal reduced the accused's sentence to 19 months' imprisonment - On the basis of parity, the judge erred in not giving the accused two for one credit for his custody and by giving inadequate weight to only the co-accused having a record - He wrongly emphasized the amount of cocaine as an aggravating factor where it was embraced in the wholesale trafficking classification which attracted a higher starting point than commercial trafficking - Although the properly admitted drug paraphernalia were relevant to the charge, they were not aggravating in their own right - Further, some paraphernalia had been excluded and should not have considered on sentencing without having utilized the procedure under s. 724 of the Criminal Code - A suggestion in the pre-sentence report that the accused did not accept the verdict but was prepared to accept the sentence was too ambiguous to be treated as aggravating.

Criminal Law - Topic 5817

Sentencing - Sentencing procedure and rights of the accused - Evidence - General - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 5834

Sentencing - Considerations on imposing sentence - Circumstances tending to increase sentence - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 5843

Sentencing - Considerations on imposing sentence - Content of a presentence report - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 5846.5

Sentencing - Considerations on imposing sentence - Sentence precedents - Starting point principle - An accused was convicted of possession of cocaine for the purpose of trafficking - The sentencing judge used a 4.5 year starting point and concluded that an appropriate sentence was 5.5 years reduced for time served - The accused appealed, asserting that the judge erred in not treating his lack of prior record as a mitigating factor - The Alberta Court of Appeal rejected the assertion - The starting point cases were based on the assumption that the offender was of previous good character - While the presence of a record was an aggravating factor, the absence of one was not mitigating - See paragraphs 29 and 30.

Criminal Law - Topic 5848.2

Sentencing - Considerations on imposing sentence - Time already served (incl. bail) - An accused was charged with possession of cocaine for the purpose of trafficking - The accused committed the offence while on judicial interim release on a charge of conspiracy to traffic in cocaine - The conspiracy charge was stayed - The accused was convicted and sentenced to 3.5 years' imprisonment - The accused appealed the sentence, asserting that the sentencing judge erred in refusing to give him credit for 3.5 months of bail under conditions akin to house arrest or for time served on the conspiracy charge - The Alberta Court of Appeal rejected the assertion - Although a sentencing judge had to consider whether it was appropriate to give credit for time served under strict bail conditions, the judge was not obliged to give credit - With regard to time served for the conspiracy charge, the wording of s. 719(3) of the Criminal Code suggested that it was not appropriate to give credit for time served on a completely separate charge that was later stayed - See paragraphs 13 to 17.

Criminal Law - Topic 5849.6

Sentencing - Considerations on imposing sentence - Prohibited or improper considerations - [See Criminal Law - Topic 5806 ].

Criminal Law - Topic 5849.16

Sentencing - Considerations on imposing sentence - Addicts - An accused appealed his sentence for possession of cocaine for the purpose of trafficking, asserting that the sentencing judge erred in treating his motive of financial gain as an aggravating circumstance - The Alberta Court of Appeal rejected the assertion, stating that it was not a clear error - The Alberta courts had distinguished between traffickers who were also addicts and were selling to support their habits and traffickers motivated for purely financial gain - See paragraph 33.

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 5806 and Criminal Law - Topic 5849.16 ].

Criminal Law - Topic 5850

Sentence - Trafficking in a narcotic or a controlled drug or substance (incl. possession for the purpose of trafficking) - An accused appealed his sentence for possession of cocaine for the purpose of trafficking, asserting that the sentencing judge erred in using a starting point of 4.5 years' imprisonment - The Alberta Court of Appeal rejected the assertion - There was clear authority to distinguish commercial trafficking in cocaine and wholesale trafficking in cocaine - The former attracted a three year starting point while the latter attracted a 4.5 year starting point - The court noted that case law did not draw a bright line as to where commercial trafficking on a minimal scale ended and wholesale commercial trafficking began, but that the facts of the cases provided some indication - The amount of cocaine and value of drugs in the "commercial" cases was also instructive - Here, the accused had a approximately 1 kg of cocaine - The amount involved fell squarely into the category of wholesale - See paragraphs 19 to 28.

Cases Noticed:

R. v. Chan (A.H.) et al. (2003), 342 A.R. 201 (Q.B.), refd to. [para. 3].

R. v. Wust (L.W.), [2000] 1 S.C.R. 455; 252 N.R. 332; 134 B.C.A.C. 236; 219 W.A.C. 236, refd to. [para. 14].

R. v. Rezaie (M.) (1996), 96 O.A.C. 268; 31 O.R.(3d) 713 (C.A.), refd to. [para. 14].

R. v. Tallman et al. (1989), 94 A.R. 251 (C.A.), refd to. [para. 14].

R. v. Lapointe (D.E.) (1999), 244 A.R. 358; 209 W.A.C. 358 (C.A.), refd to. [para. 14].

R. v. Spencer (T.-A.) (2004), 188 O.A.C. 363; 186 C.C.C.(3d) 181 (C.A.), refd to. [para. 15].

R. v. Gray (M.A.) (2003), 338 A.R. 270 (Q.B.), refd to. [para. 15].

R. v. Hames, 2000 ABQB 958, refd to. [para. 15].

R. v. Ticknovich (N.M.) (2003), 356 A.R. 57; 2004 ABQB 421, refd to. [para. 15].

R. v. Nguyen (T.C.) et al. (2004) 355 A.R. 304; 2004 ABQB 618, refd to. [para. 16].

R. v. Ewanchuk (S.B.) (2002), 299 A.R. 267; 266 W.A.C. 267 (C.A.), refd to. [para. 16].

R. v. Maskill (1981), 29 A.R. 107 (C.A.), refd to. [para. 20].

R. v. Rahime (S.) et al. (2001), 286 A.R. 377; 253 W.A.C. 377 (C.A.), refd to. [para. 20].

R. v. Wong (W.J.) (2004), 354 A.R. 330; 329 W.A.C. 330; 2004 ABCA 260, refd to. [para. 20].

R. v. Chung (K.P.) et al. (1999), 232 A.R. 193; 195 W.A.C. 193 (C.A.), refd to. [para. 21].

R. v. Honish and Lafrance (1989), 100 A.R. 79 (C.A.), refd to. [para. 21].

R. v. Ma (H.) (2003), 330 A.R. 142; 299 W.A.C. 142 (C.A.), refd to. [para. 21].

R. v. Henderson (J.D.) (2002), 313 A.R. 182 (Q.B.), refd to. [para. 23].

R. v. Sandercock (1985), 62 A.R. 382 (C.A.), refd to. [para. 31].

R. v. McDonnell (T.E.), [1997] 1 S.C.R. 948; 210 N.R. 241; 196 A.R. 321; 141 W.A.C. 321, refd to. [para. 31].

R. v. Christie (R.D.) (2004), 357 A.R. 47; 334 W.A.C. 47; 2004 ABCA 287, refd to. [para. 31].

R. v. Phun (G.C.) (1997), 209 A.R. 266; 160 W.A.C. 266 (C.A.), refd to. [para. 31].

R. v. Ferguson (S.L.) (1996), 184 A.R. 157; 122 W.A.C. 157 (C.A.), refd to. [para. 31].

R. v. Burchnall and Dumont (1980), 24 A.R. 17 (C.A.), refd to. [para. 33].

R. v. Ostertag (T.K.) (2000), 266 A.R. 57; 228 W.A.C. 57 (C.A.), refd to. [para. 37].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 719(3) [para. 17].

Counsel:

M.R. Bloos, Q.C., for the appellant;

J.A. MacDonald, for the respondent.

This appeal was heard on October 18, 2004, by Hunt, J.A., Johnstone and Watson, JJ.(ad hoc), of the Alberta Court of Appeal. Hunt, J.A., delivered the following reserved reasons for judgment for the court on December 16, 2004.