R. v. Ukwuaba, 2021 ONCA 152

Court of Appeal for Ontario

Date: 20210310 Docket: C65917

Feldman, Paciocco and Coroza JJ.A.

Between

Her Majesty the Queen Respondent

and

Peter Ifejuna Ukwuaba Appellant

Counsel: Jessica Zita, for the appellant Brian G. Puddington, for the respondent

Heard: March 8, 2021 by video conference

On appeal from the convictions entered by Justice Casey Hill of the Superior Court of Justice on May 11, 2015, with reasons reported at 2015 ONSC 2953, [2015] O.J. No. 2349, and from the sentence imposed on February 17, 2016, with reasons reported at 2016 ONSC 3109, [2016] O.J. No. 2817.

Reasons for Decision

Overview

1The appellant, Peter Ukwuaba, was convicted after a trial by judge alone of three offences involving approximately one kilogram of heroin: (1) possession of heroin for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”); (2) importing heroin, contrary to s. 6(1) of the CDSA; and (3) conspiracy to import heroin, contrary to s. 465(1)(c) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He was sentenced to 11 years’ imprisonment, concurrent on each charge.

2Mr. Ukwuaba’s appeal counsel conceded, appropriately, that evidence showing he possessed the heroin for the purpose of trafficking was overwhelming. Accordingly, the conviction contrary to CDSA s. 5(2) is not being appealed. The appellant does, however, appeal the remaining two convictions and he seeks leave to appeal his sentences.

3We notified counsel at the end of the oral hearing that, for reasons to follow, the conviction appeals are dismissed, but that leave to appeal the sentences is granted and the sentence appeal is allowed. The sentences of 11 years’ incarceration concurrent on each conviction are set aside, and concurrent sentences of 9 years’ incarceration are ordered. These are our reasons.

Analysis

Appeals from conviction

4Mr. Ukwuaba rested his conviction appeals on the absence of evidence linking him to the importation of the heroin until July 15, 2011, the day after the heroin left India by courier secreted in a box of automobile parts. On July 15, 2011, Mr. Ukwuaba received a text message containing the tracking number for the package and, on July 25, 2011, he received delivery of the package. He argues that, in the absence of any evidence of his participation in discussions leading to an agreement to export the heroin from India, the conspiracy conviction is unreasonable. He also submits that the fact that he took delivery of the couriered package upon its arrival cannot support a finding beyond a reasonable doubt that he was complicit in the importation.

5We do not agree with either submission. It is evident that a package of valuable contraband would be sent to a trusted recipient. This couriered package of valuable contraband was addressed to a former resident of a rooming house. There was evidence that Mr. Ukwuaba was aware that the former resident no longer lived there. There was also evidence that Mr. Ukwuaba had formerly lived there himself and continued to receive mail deliveries at that residence, so he was aware that he could easily gain entry to receive a couriered package.

6It is also evident that Mr. Ukwuaba was aware of the time when the couriered package would be delivered. He arrived at the subject residence shortly before the delivery, after having received a phone call from the same number used to text him the tracking number. Upon his arrival, he was observed conducting counter-surveillance of the residence before taking delivery of the couriered package. He was apprehended shortly after attempting to destroy the packaging information showing the origin of the box containing the heroin.

7In these circumstances, it was appropriate for the trial judge to infer that Mr. Ukwuaba was the trusted recipient and that he would necessarily have agreed to perform that role prior to the decision to send the heroin by courier to his former residence. It was entirely reasonable, in the circumstances, for the trial judge to infer that Mr. Ukwuaba would have provided the details required to give effect to the importation plan before the courier shipment was arranged.

8Accordingly, his convictions of importing heroin and conspiracy to import heroin were not unreasonable.

Appeal from sentence

9In support of his request for leave to appeal the 11-year concurrent sentences of imprisonment imposed on each of the three charges for which he was convicted, Mr. Ukwuaba urges that the trial judge failed to consider the principle of restraint or the mitigating circumstances that he was a first offender and the principal caregiver to his autistic son.

10We do not accept this submission. The trial judge recognized in his sentencing decision that Mr. Ukwuaba was a first offender, and he imposed a sentence that reflects the principle of restraint. It was open to the trial judge to conclude that the sentence he imposed was “necessary” to satisfy the operative sentencing principles.

11However, fresh evidence introduced on appeal shows that circumstances have changed materially since Mr. Ukwuaba was sentenced in February 2016. In May 2017, he suffered a debilitating stroke that left him largely immobile and with serious impairment of his ability to communicate. Given his poor health, the circumstances of Mr. Ukwuaba’s incarceration are no doubt harsher than anticipated at the time of his sentencing, and the needs for specific deterrence and incapacitation have lessened. When Mr. Ukwuaba was initially sentenced, the Crown sought a sentence of 9 to 12 years’ incarceration. We are persuaded by Ms. Zita, Mr. Ukwuaba’s appeal counsel, that it is in the interests of justice to set aside the 11-year concurrent sentences imposed, and to substitute concurrent sentences of 9 years’ incarceration.

Disposition

12The conviction appeals are therefore dismissed. We grant leave to appeal the sentence, set aside the sentences imposed, and substitute sentences of 9 years’ imprisonment, to be served concurrently on each of the three convictions. All other terms of the sentence remain.