



COURT OF APPEAL FOR ONTARIO

CITATION:

R. v. Wong, 2012
    ONCA 767

DATE: 20121109

DOCKET: C53130

OConnor A.C.J.O., MacPherson and Cronk JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Andrew Sai Wong

Appellant

Edward F. Hung, for the appellant

Alex Hrybinsky, for the respondent

Heard and released orally: November 6, 2012

On appeal from the convictions entered on December 6, 2010
    and December 22, 2010 and the sentences imposed on January 10, 2011 by Justice Joseph
    F. Kenkel of the Ontario Court of Justice, sitting without a jury.

By the Court:

I.        Introduction

[1]

The appellant, Andrew Sai Wong, was convicted of ten guns and
    drugs-related offences as follows: (1) trafficking in a narcotic (ketamine);
    (2) possession of a narcotic (ketamine); (3) four counts of possession of a
    narcotic (cannibis marijuana, ketamine and cocaine) for the purpose of
    trafficking; (4) careless storage of a firearm; (5) possession of a firearm
    without a licence; (6) possession of a firearm knowing its possession is
    unauthorized; and (7) possession of a loaded firearm without authorization or
    registration certificate.  The appellant was also convicted, following a guilty
    plea, of failing to comply with his recognizance of bail by being in possession
    of a cellphone.  His convictions on one count of possession of ketamine for the
    purpose of trafficking and possession of a firearm without a licence were
    stayed on the basis of
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[2]

The appellant was sentenced to a global sentence of three years
    imprisonment, concurrent, on the guns and drugs-related offences (apart from
    those stayed), plus 30 days imprisonment, concurrent, on the breach of
    recognizance charge, together with ancillary orders.

[3]

On appeal to this court, the appellants conviction appeal with respect
    to the possession of a loaded firearm charge (s. 95(1) of the
Criminal Code
)
    was allowed.  In all other respects, his conviction appeal was dismissed:
R.
    v. Wong
, 2012 ONCA 432.

[4]

In light of his acquittal on appeal on the s. 95(1) charge, the
    appellant argues on this sentence appeal that his global sentence of three
    years imprisonment is unfit and excessive and that it should be set aside and
    a conditional sentence imposed.  He submits that a conditional sentence is
    appropriate given his personal circumstances and prospects and because, absent
    the s. 95(1) conviction, he would have received a sentence of less than two
    years imprisonment on the guns and drugs-related charges of which he was
    convicted.  He also argues that the trial judge erred in imposing a custodial
    sentence of 30 days on the breach of recognizance charge given his lack of a
    criminal record, the lack of aggravating factors in the commission of this
    offence and the time served by him in pretrial custody.  He submits that the
    sentence imposed for this offence should be reduced to time served.

II.       Global
    Sentence of Three Years Imprisonment 

Guns
    and Drugs Offences

[5]

At the time of the appellants sentencing, a conviction for possession
    of a loaded firearm contrary to s. 95(1) of the
Code
was subject to a
    three-year mandatory minimum term of imprisonment.  The reasons of the
    sentencing judge indicate the overall length of the global sentence that he
    imposed was determined by the mandatory minimum sentence for this firearms
    charge and that the sentences on all other guns and drugs counts were made
    concurrent to conform with the imposition of this minimum sentence.

[6]

The parties accept, and we agree, that as the s. 95(1) conviction was
    set aside on appeal, deference to the sentence judges decision does not apply
    and we must fashion a fit sentence in all the circumstances.

[7]

The appellant maintains that he is a suitable candidate for a
    conditional sentence and the sentence imposed should be varied accordingly.  He
    points out that he was 23 years of age at the time of the offence and was under
    house arrest while on bail pending trial for about one and one-half years.  He
    argues that his drug trafficking was of short duration (two to three days), he
    is not a danger to society and, but for his original conviction on the s. 95(1)
    weapons offence, a sentence of less than two years imprisonment would have
    been imposed.

[8]

Notwithstanding the appellants acquittal on appeal on the s. 95(1) offence,
    we are of the view that a global sentence of three years imprisonment on the
    remaining drugs and guns-related offences is fit and appropriate in the
    particular circumstances of this case.

[9]

The evidence at trial established that the appellant was engaged in the
    business of drug trafficking for commercial purposes.  He was in possession of
    a sawed-off .22 calibre shotgun and stored ammunition near the gun in his
    bedroom.  The trial judge found that the shotgun was being kept by the
    appellant as a tool of the drug trade, a finding borne out by the sawed-off
    condition of the gun, reflecting an intention to conceal it.

[10]

The
    appellants firearms offences are serious.  Moreover, when the appellants
    bedroom was searched, the police also discovered 35.8 grams of ketamine, four
    grams of cocaine, a mix of Canadian and United States currency totalling about
    $2,000 Canadian, and a set of scales.  This too is serious.

[11]

The
    courts have repeatedly emphasized that the toxic combination of drugs and guns
    poses a pernicious and persisting threat to public safety and the welfare of
    the community.  The social ills, including associated criminal conduct, fuelled
    by this combination is now well recognized.

[12]

These
    offences called out for an exemplary sentence to achieve the important
    sentencing goals of denunciation and deterrence.  Indeed, the firearms
    offences, standing alone, warranted a significant jail term.  See
R. v.
    Danvers
, [2005] O.J. No. 3532.

[13]

The
    combination of drugs and guns is particularly concerning.  This combination is
    a serious aggravating factor on sentencing.  The sentencing judges reasons
    note the real tragedy that the combination of drugs and firearms has caused in
    the Greater Toronto Area, including York Region.

[14]

We
    recognize that the appellant was a first offender, that he has strong support
    from his family and that he wishes to pursue his career and educational plans. 
    That said, he was not a particularly youthful offender (24 years of age at the
    time of sentencing) and, on this record, the terms of his house arrest while on
    bail pending trial were not particularly strict.  Those terms permitted the
    appellant to attend work in the company of one of his parents or his brother. 
    That is not strict house arrest.

[15]

In
    all these circumstances, we are of the view that the global sentence of three
    years imprisonment remains appropriate as of the date of sentencing, January
    10, 2011.

III.      Sentence
    of 30 Days Imprisonment 

Breach
    of Recognizance

[16]

The
    sentencing judge, as we have said, also imposed a sentence of 30 days
    imprisonment, concurrent, for the appellants breach of his recognizance.  The
    term at issue, a prohibition against possession by the appellant of a cellphone,
    was designed to impede his involvement in the drug trade.  We see no error in
    principle in the sentence imposed for the breach of this term nor is the
    sentence demonstrably unfit.

IV.     Disposition

[17]

Accordingly,
    the sentence appeal is dismissed.

RELEASED:

NOV -9 2012                                    D.
    OConnor A.C.J.O.

DOC                                                J.C.
    MacPherson J.A.

E.A.
    Cronk J.A.


