DATE: 20030305
DOCKET: C36410
COURT OF APPEAL FOR ONTARIO
WEILER, ABELLA and CHARRON JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Philip Campbell, for the appellant
Respondent
- and -
CARL EDWARD BAJADA
Rick Visca, for the respondent
Appellant
Heard: January 10, 2003
On appeal from the sentence imposed by Justice Robert E. Zelinski of the Superior Court of Justice dated February 5, 2001.
WEILER J.A.:
[1] Following a five day trial, the appellant was convicted of one count of possession of cocaine for the purpose of trafficking contrary to s. 5 (2) of the Controlled Drugs and Substances Act, S.C. 1996, c.19. The appellant applies for leave to appeal his sentence, and if leave be granted, appeals against his sentence of eight years imposed on February 5, 2001.
[2] On March 11, 1999, police officers conducted a search at the residence of John Arabia, a known drug trafficker. During the search, the appellant drove his truck onto Arabia’s driveway and was ordered to stop by the police. The appellant did not stop and instead drove past Arabia’s house along the driveway, got stuck in a snow bank, extricated his truck, crashed through two gates and fled on an unploughed “bush road” where he also got stuck. The appellant walked away from his truck using obscenities, and ignoring police demands to surrender. He was arrested at gunpoint only after being forcibly subdued. The police found two sealed tin cans discarded by the appellant containing over one-half kilogram of 74% pure cocaine with an estimated value of $62,500. On a slip of paper in his wallet he had a list of items that he stated should be available to his family to guarantee their needs should Thunder Bay experience an ice storm and also against the predicted catastrophic consequences of the transition into the new millennium. The list included reference to a canning machine, a 2-way radio with base system and a night vision device. There were also innocuous items such as a generator, fuel and fuel tanks. Expert evidence was that traffickers are always looking for new ways to conceal their product. The appellant denied having a canning machine capable of closing tin cans but said that the device he had in mind was to close Mason glass jars.
[3] The appellant and Mr. Arabia met in Stoney Mountain Penitentiary. Both operate hobby farms and live within a drive of five to ten minutes from each other. The appellant’s defence at trial was that he went to Mr. Arabia’s house to pick up calf feed and powdered milk. He fled the scene having mistaken the officers for motorcycle gang members. He was scooping snow away from the front of his truck when he happened across the cans containing cocaine and scooped them away. This account was rejected by the trial judge who found the appellant guilty of transporting the cocaine.
[4] At the time of sentencing Mr. Bajada was 51 years old. At the age of 18 he joined the U.S. army and became a member of its special forces. He became a military policeman and was honourably discharged. He became a private security officer and then went to Australia. There, he was convicted of robbery, sentenced to seven years imprisonment, escaped and had an additional term of incarceration imposed. He was deported to Canada in 1980. He settled in Thunder Bay while visiting relatives.
[5] The appellant has a criminal record, with convictions and sentences as follows:
1986: Conspiracy to traffic in a narcotic (3 months)
1987: Assault causing bodily harm ($750 fine)
1988: Extortion (3 years)
1988: Trafficking in a narcotic (30 months, consecutive)
1989: Failure to comply with a recognizance (1 day, concurrent)
1990: Failure to declare income tax (6 months, concurrent)
1991: Trafficking in a narcotic (15 months, consecutive)
1996: Possession of a narcotic ($200 fine)
[6] The conviction for extortion was also related to drug trafficking. The two extortion victims were an employee of the appellant and the employee’s boyfriend, a courier driver. According to the Crown, the boyfriend stole a quantity of cocaine that he was to have delivered for the appellant. The victims were in the course of selling the cocaine when the appellant and two others using self help recovered the value of what had been stolen. The appellant stated that $15,000 cash had been stolen from him and the recovery consisted of $6,500 in cash, some sound speakers and the transfer of ownership of one victim’s vehicle as well as cocaine recovered from two places where it had been trafficked. The appellant said he gave the cocaine to his companions “in exchange for backing him up.”
[7] In submissions as to sentence the defence submitted that an appropriate sentence was two and a half to three years. The Crown asked for seven to ten years imprisonment.
[8] The sentencing judge considered the appellant’s age, the fact that he had a young family and the submissions by defence counsel respecting the gap in the appellant’s record. He stated no matter how long the gap was the appellant was not entitled to better treatment than a first offender. At a later point in his reasons the sentencing judge referred to two cases involving importing by couriers who were first offenders: R. .v. Cunningham, 1996 1311 (ON CA), [1996] O.J. No. 448 (C.A.) and R. v. Syblis, 2001 24127 (ON CA), [2001] O.J. No.115 (C.A.). He stated:
It has always been the practice of Courts in Ontario to consider that couriers were more dupes than principals. They are not the ones who benefit from commercial gain and the greed of traffickers and the vast profits to be made by traffickers. Thus, in Cunningham, a first offender, a courier, was told six to eight years is a proper sentence.
Importing vs. Trafficking
[9] The appellant submits that the sentencing judge erred in principle and sentenced the appellant as if he had been convicted of importing cocaine. Six to eight years is the appropriate range of sentence for first offenders convicted of importing large amounts of cocaine as couriers following the decisions of this court in the companion cases of Cunningham, supra, and R. v. Madden (1996), 1996 10228 (ON CA), 27 O.R. (3d) 640 (C.A.); recently reaffirmed by this court in R. v. C.N.H., 2002 7751 (ON CA), [2002] O.J. No. 4918 (C.A.) per Rosenberg J.A.
[10] The offence of importing cocaine has generally been treated as a more serious offence than the offence of possession for the purposes of trafficking. The trial judge made no finding as to the appellant’s relative position in the drug hierarchy, nor did he find that the appellant was involved in bringing the cocaine into the country. Moreover in this case the amount of cocaine involved while sizeable was not of the multi kilogram magnitude in Cunningham. The sentencing judge appears to have erred in principle in using these importing cases as a sentencing benchmark. It is therefore incumbent on this court to impose a fit sentence.
[11] The appellant submits that a sentence of eight years is outside the appropriate range of sentence having regard to the circumstances of this offender for this offence.
[12] In his book, Sentencing, 5th ed. (Toronto: Butterworths, 1999), Clayton C. Ruby states under the heading Cocaine at p. 865-866:
Cocaine used to be regarded by the courts as a drug which is somewhat more serious than marijuana but less serious than heroin. However, due to the existence of crack cocaine and intravenous cocaine users, this attitude seems to be changing. More recent sentences for cocaine seem on par with those imposed for heroin possession or trafficking.
….in the case of Finlay and Grelette, the accused were convicted of what was described as a very serious offence involving 20 ounces of high purity cocaine and were concluded to be close to the level of importers. Sentences of four and one–half and six and one-half years were imposed according to the accuseds’ relative degrees of involvement. The court noted that although general deterrence was the primary factor to be considered in the imposition of sentence, “the rehabilitation of the offender can never be entirely overlooked and in each case the offender must be dealt with as constructively as the circumstances of the case permit.
[13] It would appear that sentences of five to five and one half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s plea of guilty or where the accused has no prior record. See e.g. R. v. Marton, [1980] O.J. No. 868 (C.A.); R. v. Molino (1987), 2 W.C.B. (2d) 391 (Ont. Dist. Ct.); R. v. Charles, [1997] O.J. No. 2247 (Gen. Div.); R. v. Cummings, [1990] O.J. No. 2747 (Dist. Ct.); R. v. Jones (1999), 1999 3700 (ON CA), 133 C.C.C. (3d) 1 (Ont. C.A.). In R. v. Finlay and Grelette, [1985] O.J. No. 2173 (C.A.), referred to above, this court imposed a sentence of six and a half years on an offender with one minor criminal offence fifteen years earlier, having regard to his position in the drug hierarchy which was close to the level of an importer. Longer sentences were upheld in R. v. Boughner, [1999] O.J. No. 5449 (Sup. Ct.), aff’d 2002 44975 (ON CA), [2002] O.J. No. 2181 (C.A.) where, in addition to credit of 14 months for 5 months of pre-trial custody, the appellant was sentenced to five and a half years imprisonment for possession of 66 grams of 74% pure cocaine for the purpose of trafficking and possession of money derived from the commission of an offence. An aggravating factor was evidence that the appellant had been trafficking in cocaine over the preceding one and a half years. He also had three prior convictions for possession of a narcotic and one conviction for possession for the purpose of trafficking. In R. v. Gibson (1996), 1996 816 (ON CA), 87 O.A.C. 393 (C.A.), a sentence of eight years was upheld for trafficking in cocaine with respect to a repeat narcotics offender with a serious criminal record apart from drug convictions. More recently, in R. v. Bertucci, 2002 41779 (ON CA), [2002] O.J. No. 3870 (C.A.), a sentence of seven years was considered by this court on an appeal from sentence respecting one count of conspiracy to traffic in cocaine following the appellant’s trial and conviction. Concurrent sentences respecting six counts of trafficking in cocaine during an overlapping period were also imposed. The court stated that a sentence of seven years was a fit sentence for the offence of conspiracy to traffic standing alone. However, having regard to the fact that one count of trafficking was set aside the court reduced the sentence to six years.
[14] Having regard to these factors, as well as the appellant’s age, I am of the opinion that a fit sentence in this case would be one of six years imprisonment.
[15] Accordingly, I would grant leave to appeal sentence, allow the appeal as to sentence and reduce the sentence to six years. Appeal allowed.
RELEASED: March 5, 2003
“KMW”
“Karen M. Weiler J.A.”
“I agree R. S. Abella J.A.”
“I agree Louise Charron J.A.”