Supreme Court

R. v. Huynh, 2003 NWTSC 19
Date: 20030407
Docket: S-1- CR2002000085

IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER OF:


HER MAJESTY THE QUEEN


- vs. -


LONG HAI HUYNH


Transcript of the Oral Reasons for Sentence by The Honourable Justice V.A. Schuler, at Yellowknife in the Northwest Territories, on March 6th A.D., 2003.


APPEARANCES:

Ms. C. Carrasco:  Counsel for the Crown

Mr. J. Brydon:   Counsel for the Accused


Charge under s. 5(1), s. 264(1) (a) Criminal Code


THE COURT:   I am going to pronounce the sentence now with respect to Mr. Huynh's convictions. Mr. Huynh pleaded guilty to a charge of trafficking in a substance held out to be cocaine. He has also been found guilty by a jury of making a death threat. The trafficking conviction involves facts which I found after hearing evidence as well as facts which Mr. Huynh admitted.

Very briefly, the essential facts are that on April 3rd, 2002, he was sought out by an undercover police officer who told Mr. Huynh that he was a legitimate businessman who was also in the business of delivering cocaine to people in northern Alberta and that he was interested in doing the same outside Yellowknife and in purchasing cocaine from Mr. Huynh for that purpose. There was discussion about amounts that he wanted to purchase. Mr. Huynh wanted to know if the officer was who he purported to be and he set that as a condition of dealing with him and said that any dealing would be through an associate. They arranged to meet later for a test and did so with Mr. Huynh giving the officer a spitball of cocaine, approximately one gram of cocaine, which the officer simulated snorting. The accused told him to snort a line of cocaine, the officer refused to do so and they left the scene of the test. Mr. Huynh admitted to that aspect of the trafficking, that is, to

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giving the officer the cocaine for the test. Mr. Huynh and the officer had further discussion before leaving the scene and at one point Mr. Huynh said that “the only thing keeping us from me dealing with you as much as you want is that thin line”, referring to the line of cocaine. I found yesterday that the accused had said those words and on all of the evidence, there was an offer to sell cocaine to the undercover officer.

After they left the scene, and this is the subject of the jury's finding of guilt on the threatening charge, the accused told the officer “if we deal and I go to jail, you better leave town, dig a hole and hide 'cause you're dead, I'll kill you”, or words to that effect as testified to by the officer.

They parted soon after this and the accused was arrested several weeks later.

It is obvious from the discussions that the accused had with the police officer, whose version I have accepted and I'm satisfied beyond a reasonable doubt is in fact what happened, that the accused was prepared to get into what was at least a mid-level commercial enterprise so long as the officer proved that he was “true

The accused is 29 years old. He grew up in Yellowknife and works in his family's retail

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business here. He has a Grade 12 education and two years of college in mechanics and autobody courses. He is involved in a relationship and his partner and his parents, I'm told by defence counsel, are supportive of him.

Mr. Huynh has a criminal record with related charges, being a 1995 conviction for trafficking in a narcotic in which I am advised by counsel he was a party to transportation of six ounces of cocaine to Yellowknife and for which he received a sentence of two years less a day in jail. I note that that record is almost eight years old at this point. That is the only drug related conviction.

Related to the threatening charge is a conviction for spousal assault causing bodily harm for which Mr. Huynh received 60 days in jail in 2001. And I say it is related because offences of violence or threatening violence are obviously related. In 1997, Mr. Huynh was also convicted of impersonation with intent and received 14 days in jail. And in 2002, he was convicted of a breach of the recognizance he was on in relation to these and other charges and he received a $200 fine.

Crown counsel has referred to a number of cases in which Judges of this Court and others have given the reasons why trafficking in cocaine must be treated severely. I won't repeat what has been said

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many times before in this Court and others and what I'm sure Mr. Huynh heard from the Judge who sentenced him in 1995.

I bear in mind that Mr. Huynh did not actually sell cocaine to the undercover officer, that he gave him only a small quantity and that no further transactions took place. The evidence clearly indicates however that Mr. Huynh knew where to get cocaine, he was able to get cocaine on short notice, he did it because he did get some in fact, he obviously knew who is in the business, and he was offering to sell in what was represented by the officer to be a fairly substantial amount - 10 to 20 grams per shipment once or twice a week.

The giving of the spitball of cocaine to the undercover officer has to be viewed in this context. In my view, this is not a one-time giving of a small amount of cocaine. The whole point of giving the cocaine to the officer was to conduct the test in the hope that this would lead to a business deal for the provision of cocaine. I do bear in mind that none of this was followed through because of the disagreement or the fact that the officer would not perform the further test that Mr. Huynh wanted and that there is no evidence of the accused actually trafficking to others. Nor is there any evidence that he has been engaged in drug trafficking between

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1995 and this incident. Although on the evidence, as I say, his connections with the drug trade are apparent from the evidence.

I take into account the guilty plea. Although it came at the last minute and it did not entirely resolve the trafficking charge, Mr. Huynh does get credit for it as an admission of guilt. And I also take into account that this is not a case where we were dealing with a witness for whom testifying was going to be traumatic or difficult so that doesn't lessen the significance of the guilty plea.

Mr. Huynh has been in remand since October 13, 2002 after being charged with breaching his recognizance. His being detained then and back in May for eight days is partly due to other outstanding charges as well. I take all of that into account. In the circumstances, I do not think t1~at double the time as a credit is appropriate. This is not a case where Mr. Huynh was detained on one charge and has been in custody on that one charge. Mr. Huynh is in custody because of a number of charges but also because he breached the recognizance that he was on. So in my view, it is appropriate to simply credit the actual time which I will credit as five months.

I agree with the submission of defence counsel that the possibility of rehabilitation is not to be

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ignored. Mr. Huynh's record is not so serious or lengthy as to mean that he is beyond hope but he should keep in mind that the maximum penalty for trafficking is life imprisonment. It is considered to be a serious crime because of the harm that drugs like cocaine do. Because of the previous record, I have to be concerned that Mr. Huynh be deterred, be discouraged from engaging in this type of activity again, and that others be deterred as well and that the sentence reflect society's condemnation of this crime.

As to the threatening charge, in my view that too is very serious. I would distinguish the cases referred to by defence counsel because although it in no way excuses the behaviour in those cases, those were cases where people made threats in emotional circumstances and in two of the oases where they had been drinking. In this case there was no emotion. The accused and the police officer, playing his role as a drug purchaser, had an argument. The officer testified that it was not a particularly heated argument. The accused made, as the jury found, a threat to kill if he were to go to jail because of his dealings with the police officer. In my view, it was done in a cold and calculating manner meant to intimidate. The very fact that he would make such a threat indicates to

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me that this was far from the accused's trying to help out the police officer, this was serious business and the accused wanted the police officer to know that. I also note that the threat was made at a time when he suspected that he was dealing with a police officer according to his own evidence. Although the threat was made in the course of what could be considered one continuing drug transaction, in my view it is a separate incident within that transaction arid for that reason does merit a consecutive sentence taking into account however the totality of the two sentences.

Stand please, Mr. Huynh.

Mr. Huynh, having given you credit for five months of remand time I sentence you as follows: On Count 1, the trafficking charge, 24 months. On Count 2, the threatening charge, six months consecutive. That's a total of 30 months in jail.

There will be a firearm prohibition order commencing today and. expiring ten years from your release from imprisonment and the Victims of Crime surcharge will be waived.

You may have a seat.

Is there anything further, counsel, that I need to deal with?

MS. CARRASCO:  No, thank you.

THE COURT:   Mr. Brydon?

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MR. BRYDON:  No.

THE COURT:   Thank you very much, counsel, for your conduct of the case and we will close Court.

(AT WHICH TIME THE ORAL REASONS FOR SENTENCE CONCLUDED)


Certified pursuant to Rule 723 of the Supreme Court Rules.

Lois Hewitt,
Court Reporter

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