COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Gobran, 2013 ONCA 407

DATE: 20130618

DOCKET: C55626

Juriansz, MacFarland and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Gobran

Appellant

George Gobran, for the appellant, in person

Russell Silverstein, Duty Counsel

Thomas C. Lemon, for the respondent

Heard: April 17, 2013

On appeal from the sentence imposed by Justice John T. Lynch of the Ontario Court of Justice, dated October 15, 2012.

Pepall J.A.:

[1] The appellant pled guilty to two counts of production of marijuana and three counts of possession for the purpose of trafficking.

[2] The sentencing judge sentenced him to five years concurrent on the production counts and four years concurrent on the possession for the purpose of trafficking counts.

[3] The appellant appeals his sentence.

Facts

[4] In response to information provided by a confidential informant, the police began investigating the appellant in February 2011. They discovered that the appellant was involved in three active marijuana grow operations. The first had 2,079 marijuana plants in various stages of growth and 24 pounds of harvested marijuana; the second had 1,312 marijuana plants, 27 pounds of marijuana ready for sale and over 600 grams of hash; the third contained 2700 plants which amounted to 265 pounds. Growing equipment was found at each of these three locations. The appellant also maintained two storage units for marijuana, one of which contained over 52 pounds of marijuana and the other over 177 pounds, all packaged for sale. In addition, 7.5 pounds of marijuana were found at the appellant’s residence along with an additional 240 grams, $12,980 in Canadian currency and $3,302 in American currency.

[5] The sentencing judge found that the appellant was the operating mind behind the grow operations and more involved than his two co-accused.

[6] The appellant pled guilty on the basis of an Agreed Statement of Facts. It stated that the controlled substances seized had a street value of over $6,500,000.

[7] The sentencing judge understood that the Crown had taken the position that the substances had a street value of over $6.5 million, whereas the defence had suggested a value of between $1.6 and $2.5 million. The sentencing judge adopted the latter as the “more conservative estimate”. The record discloses that, in spite of the Agreed Statement of Facts, this conservative estimate was advanced in submissions by the Crown, not the defence who had submitted that the value was $800,000.

The Pre-Sentence Report

[8] The pre-sentence report revealed that the appellant was a 42 year old first time offender. He was raised in a stable home environment. He has maintained a relationship with his spouse, with whom he has a son, for at least 20 years.

[9] The appellant had long term employment as a forklift operator for 19 years, until July 29, 2007 when he was laid off due to a plant closure. He had exhausted his severance payments by June 2011. From March 2011 until April 2012, he held three positions. They were of eight months, three months and five months duration, respectively.

[10] In 2007 or 2008, he was introduced to cocaine and took it daily until January 2011. In 2010, he became preoccupied with gambling. He estimated that his losses peaked at between $10,000 and $30,000 per day. The pre-sentence report quotes the appellant as saying: “Gambling ruined my life … cocaine killed me physically, gambling killed me every other way.” In February 2011, he completed a residential rehabilitative program and is stated to have resisted the temptation to gamble on completion.

[11] Before the sentencing judge, the Crown proposed a sentence in the range of five to seven years and the defence sought a conditional sentence of two years less a day.

Sentencing Judge’s Decision

[12] On the basis of the Agreed Statement of Facts and the acknowledgement of defence counsel, the sentencing judge found that the appellant was the more involved offender, and observed that the offender’s degree of responsibility is a significant factor in sentencing. He referred to the principles of sentencing in ss. 718 and 718.1 of the Criminal Code, R.S.C. 1985 c. C-46 – including the principles of deterrence, denunciation, rehabilitation, proportionality and restraint – as well as the sentencing provision for drug offences in s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[13] Relying in part on the $1.6 to $2.5 million estimate of value, the sentencing judge found that the grow operations constituted a substantial commercial enterprise. He acknowledged that the appellant had pled guilty, been co-operative with the police, and had no prior criminal record. That said, he was the controlling mind behind the operation and he was involved for financial gain. Members of the community needed to be deterred from cultivation or possession for the purposes of trafficking. Moreover, specific deterrence was also a factor because the appellant’s pre-sentence report characterized him as someone who sought sensation and displayed a lack of impulse control.

[14] In imposing a five year sentence, the sentencing judge expressly referred to two decisions involving significant commercial grow operations in which sentences of seven years and six and one-half years were imposed.

Grounds of Appeal

[15] The appellant advances three arguments on appeal. First, he submits that the sentencing judge erred in accepting that the value of the marijuana was between $1.6 and $2.5 million. Second, he submits that the sentencing judge erred in finding that the appellant was the controlling mind behind the operation. Third, he submits that a sentence of five years is too long; it is outside the range and is manifestly unfit.

Analysis

[16] Dealing with the first argument advanced, the record discloses that the Agreed Statement of Facts stated that the street value of the controlled substances seized exceeded $6,500,000. Both counsel in submissions suggested more conservative valuations, but in light of the Agreed Statement of Facts, it was open to the sentencing judge to accept the lower estimated value proffered in the Crown’s submissions, even if he erred in attributing the figures to defence counsel.

[17] In addition, it is apparent that the sentencing judge’s conclusion that these grow operations were substantial commercial enterprises was informed not only by the valuation of the controlled substances seized, but also the number of plants seized; the number of facilities used; the significant amount of marijuana packaged ready for sale and the presence of grow charts for the years 2010 and 2011.

[18] With respect to the appellant’s second submission, based on the record before him and defence counsel’s submissions, it was open to the sentencing judge to conclude that the appellant’s involvement in the operation was greater than that of the other two co-accused and that he was the operating mind. We therefore give no effect to this ground of appeal.

[19] The final issue to consider is whether the global sentence of five years is outside the range and unfit, section 718.2(b) of the Code providing that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. In reviewing for disparity, an appellate court should only intervene where the sentence imposed by the trial judge departs substantially and markedly from those customarily imposed in similar circumstances: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 92.

[20] The sentencing judge relied on two decisions that imposed sentences in the six and a half to seven year range for significant commercial grow operations. In R. v. Jowett, [1990] O.J. No. 2911 (Ont. C.A.), the accused pled guilty to possession, possession for the purpose of trafficking and cultivation of marijuana. Over four tons of marijuana were found. The accused was the master mind behind a highly skilled commercial enterprise, which had been in operation for at least three years. This court reduced the sentence from eight and a half years to six and a half years imprisonment, but affirmed that the offence of which the appellant was convicted clearly called for a significant penitentiary term.

[21] In R. v. Ha, 2009 ONCJ 503, a 53-year-old offender pled guilty to production of marijuana and possession for the purpose of trafficking. The operation consisted of 40,040 plants and 500 pounds of freshly harvested plants. The retail value of the marijuana amounted to $80 million and the wholesale value was estimated to be between $26 and $35 million. The accused was a first time offender. He was sentenced to seven years imprisonment, leaving a sentence of six years to be served after pre-sentence custody was deducted.

[22] Duty counsel for the appellant relied upon other case law to illustrate that the five year sentence given to the appellant in this case was excessive. In R. v. Nguyen, 2007 ONCA 645, this court upheld the 15-month sentence given to a first time offender convicted of production and possession of marijuana for the purpose of trafficking and of theft of electricity. The operation was carried out in the offender’s residence and involved 1,121 plants and 18 pounds of harvested marijuana, plus the theft of $10,000 of electricity.

[23] In R. v. Ho, [2007] O.J. No. 151, the accused pled guilty to production of marijuana, possession of marijuana for the purpose of trafficking and fraudulent consumption of electricity. 1,100 plants having a value approaching $1 million were seized at two separate residences in the City of Windsor. The accused had become involved in her son’s grow operation, but had not profited personally from it. She was sentenced to 22 months’ imprisonment.

[24] In R. v. Chao, [2007] O.J. No. 1887, the accused, a first time offender, was convicted of production of marijuana and possession for the purpose of trafficking. Together with others, he ran a sophisticated marijuana grow operation in an industrial area of Toronto. 2,530 marijuana plants were seized. The venture would yield six crops a year which would translate into approximately $1.8 to $2.6 million per year if sold by the ounce and $1 million if sold by the pound. He received a 20 month reformatory sentence.

[25] R. v. Bick, [2012] O.J. No. 1787, involved another first time offender. He pled guilty to production and possession of marijuana for the purpose of trafficking. The offender grew marijuana in a commercial building, as part of a well-planned and carefully executed commercial venture. 3,418 plants were seized. He was sentenced to one year imprisonment.

[26] The Safe Streets and Communities Act, S.C. 2012, c. 1, amended s. 7(2)(b) of the Controlled Drugs and Substances Act to provide for minimum sentences for the production of marijuana. If a crop exceeds 500 plants, s. 7(2)(b)(vi) of the Act now calls for a minimum sentence of three years provided other factors are met. That said, the Act came into force on November 6, 2012 and is therefore inapplicable to the appellant’s convictions.

[27] In the case before us, the sentencing judge appreciated the broad range in sentencing in the jurisprudence, but also properly recognized that the fixing of a fit sentence is an individualized process based on the circumstances of the case and the offender. As stated by Lamer C.J. for the Supreme Court of Canada in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 at para. 92, “the search for a single appropriate sentence for a similar offender for a similar crime will frequently be a fruitless exercise of academic abstraction”.

[28] The sentencing judge properly considered all of the relevant factors, and his finding that the appellant was engaged in a substantial commercial enterprise is well supported by the record. The size of the operation and the yield were significant. Seizures involving in excess of 6000 marijuana plants were effected at six different locations, both residential and rural. The appellant was involved in three active marijuana grow operations and he maintained two storage units. Moreover, he was involved for his own financial gain.

[29] While shorter terms have been imposed for similar offences, in my view the sentence was not outside the acceptable range having regard to the gravity and seriousness of the appellant’s crimes.

[30] Accordingly, while I would grant leave to appeal the sentence imposed, I would dismiss the appeal.

Released: June 18, 2013 “RGJ”

“S. E. Pepall J.A.”

“I agree R. G. Juriansz J.A.”

“I agree J. MacFarland J.A.”