R. v. Majnoon, 2009 ONCA 876

CITATION: R. v. Majnoon, 2009 ONCA 876

Date: 20091210

Docket: C50091

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty and Feldman JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Ali Majnoon

Respondent

Maureen McGuire, for the appellant

James Foord, for the respondent

Heard: November 25, 2009

On appeal from the sentence imposed by Justice James A. Fontana of the Ontario Court of Justice on February 6, 2009.

Doherty J.A.:

[1] The respondent pled guilty to conspiracy to traffic in cocaine. He received a sentence of two years less one day to be followed by 30 months probation. The trial judge also gave the respondent 12-months’ credit for the six months he spent in pre-trial custody. In effect, the respondent received a jail sentence of three years less one day. The Crown seeks leave to appeal from that sentence and submits that a sentence of five to seven years should have been imposed in the circumstances of the case.

[2] The respondent’s arrest came as a result of a lengthy joint task force operation involving the Ottawa Police Department and the Ontario Provincial Police. That investigation uncovered a cocaine distribution network operating within Ottawa. Large quantities of cocaine were brought into Ottawa from Montreal and Toronto by two different distributing arms of the illegal operation. The respondent and three others formed one of those distribution arms. The distributors brought cocaine in at the kilogram level and distributed it within Ottawa at the multi-ounce level.

[3] Private communications were intercepted in the course of the investigation. According to the agreed statement of facts filed on the respondent’s guilty plea, the intercepted communications, “demonstrate that the conspiracy group with which Mr. Majnoon [the respondent] is a part was a highly commercialized and organized group which was bringing multiple kilos of cocaine [per] month to Ottawa and distributing the same.”

[4] It was acknowledged in the agreed statement of facts that the respondent travelled to Montreal on at least two occasions and returned to Ottawa with kilogram-level shipments of cocaine. It was also agreed that he continued to work for the distribution arm even after certain drugs were seized from him.

[5] The wiretaps provided evidence that the respondent discussed and negotiated pricing with others within the distribution arm. There was also evidence that he quoted a price of $30,000 per kilogram to a prospective buyer. The buyer responded about four minutes later indicating that the price was “not bad”, and inquiring whether the respondent had the cocaine. The respondent replied that he was getting more tomorrow and referred to the significant police presence.

[6] In fixing the respondent’s role in the substantial drug trafficking operation revealed in the agreed statement of facts, the trial judge said the following:

Most significantly in my view, the conduct in which he was involved was as a courier of drugs. And that is to say, he was operating at a low level and I think that’s evidenced by the agreed statement of facts and all of the wiretaps which were submitted in this case.

He was transporting cocaine at the kilo level. That is to say, he was in terms of the gravity of his conduct, he was sort of right in the middle, not at the lowest, not at the highest, but he was transporting at the kilo level. [Emphasis added.]

[7] The limited circumstances in which this court can interfere with sentences imposed at trial are well known and need not be repeated here. I would not interfere with the sentence imposed by the trial judge if he was correct in describing the respondent’s role in this operation as that of a “courier” or “transporter”. I must, however, agree with the Crown’s submission that the respondent played a more significant role than that of a mere courier. In addition to transporting large amounts of cocaine between Montreal and Ottawa, the respondent was involved in negotiating prices at the multi-kilo level and on at least one occasion offered to sell cocaine at the multi-kilo level. He had an interest in the operation that went beyond whatever compensation he received for carrying the drugs from one place to another.

[8] The respondent was not at or near the top of the hierarchy of this drug operation. He was not, however, simply a “courier” who moved narcotics from Montreal to Ottawa. Having regard to the role played by the respondent in the operation, I think he is more properly seen as a person involved not only in the transportation of kilograms of cocaine, but in the distribution of the drug at that level.

[9] Having regard to the actual role played by the respondent in the conspiracy and taking into account the aggravating and mitigating factors identified by the trial judge, a sentence in the range suggested by the Crown at trial (five to seven years) would have been appropriate.

[10] We were told that the respondent was released on parole in early October. This appeal was originally scheduled to be heard in the summer, but was adjourned at the respondent’s request. Obviously, had it proceeded as scheduled, the problem of re-incarcerating the respondent if the appeal was allowed would not have arisen. In my view, the court must be very careful about treating re-incarceration as a significant factor in its assessment of a Crown appeal when it is clear that but for the respondent’s request for an adjournment, the appeal would have been heard and determined before the respondent was released.

[11] I think five years would have been the appropriate sentence at trial. Like the trial judge, I would give the appellant 12 months’ credit for his pre-trial custody, yielding an actual sentence of four years. I would vary the sentence to four years. To avoid any uncertainty, I wish to make it clear that the respondent should receive credit against that four years for the time spent in custody between the imposition of sentence in February of this year and his release on parole in October of this year.

[12] I would grant leave to appeal the sentence imposed, allow the appeal and vary the sentence in accordance with these reasons. If necessary, a warrant may issue for the respondent’s arrest.

“Doherty J.A.”

“I agree Winkler C.J.O.”

Feldman J.A. (Dissenting):

[13] This is a Crown appeal against sentence following a guilty plea. The basis for the appeal is that the sentencing judge misapprehended the facts of the offence and therefore imposed a sentence that was outside the range for the offence. I would dismiss the appeal.

[14] A sentencing judge is entitled to significant deference not only with respect to the sentence imposed, but also the findings of fact regarding the offence: R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 91; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32, at para. 129, the Supreme Court reiterated that “the trial judge’s underlying factual findings must be respected, absent palpable and overriding error.”

[15] In this case, the guilty plea was based on an agreed statement of facts that included transcriptions of a number of wiretapped conversations among the conspirators. Crown and defence counsel at trial diverged significantly on the range of sentence and on the importance of the respondent’s role in the context of the relevant case law. The evaluation of that role was open to interpretation, and it was the function of the sentencing judge to consider the record and make his finding.

[16] It is clear from the reasons for sentence that the sentencing judge was fully familiar with the record and did not misapprehend the evidence. He stated on page 1 of his oral reasons:

An agreed statement of fact has been filed as exhibit number 1 in this case. I have heard very lengthy submissions from both sides, the submissions, indeed, which took the better part of a day. And I have reviewed voluminous material and case law which was presented to me. This necessitated my reserving on the matter overnight to refresh my memory with regard to the notes I had taken of the submissions and to review some of the case law to which I have been referred.

[17] And later on page 4, when addressing the role of the respondent, he stated:

It is clear upon reviewing the statement of fact in this case, which I had an opportunity again to do last night, that the accused was, shall we say, knowledgeable and plugged into the system. He knew the lingo, he knew the code talk, probably suspected that they were being wiretapped or that their calls were being intercepted – this was all on cell phone. And I think that does contribute to the position expressed by the Crown.

[18] The sentencing judge found that the respondent’s role was as a courier at the mid-level. In so finding, he understood that the respondent was not a mere “mule” who delivered drugs and followed instructions. He collected money and dealt with the principals; he knew the lingo; he was trusted with over a kilo of cocaine. Although he was involved in the distribution, he was not the head of the group. That was another man identified in the agreed statement, named James Kongkhaw. The sentencing judge characterized the respondent as transporting at the kilo level and that “in terms of the gravity of his conduct, he was sort of right in the middle, not at the lowest, not at the highest”.

[19] In my view, in characterizing the respondent as a courier and a transporter at the kilo level, the sentencing judge fully understood that he played an active role in the drug distribution but not a leadership role. As a result, the sentencing judge’s evaluation of the respondent as operating at a middle level was not unfair and was open to him as the basis for imposing sentence in this case.

[20] The sentencing judge was alive to all of the aggravating and mitigating factors, which he discussed. He had determined that the respondent’s prospects for rehabilitation were good in this case and should be featured as an important factor in the sentence of this relatively young first offender.

[21] In my view, this is the very type of case where an appeal court is to give deference to the sentencing judge, who has dealt directly with the parties and knows the record, the community and the law.

[22] I would dismiss the appeal.

RELEASED: “WW” “DEC 10 2009”

“K. Feldman J.A.”