Court Information

Ontario Court of Justice

Date: 2018-07-17

Court File No.: Brampton 3111 998 18 452

Parties

Between:

Her Majesty the Queen

— And —

Kenneth Phillip Clifford

Judicial Officer and Counsel

Before: Justice G.P. Renwick

Heard on: 21 June and 17 July 2018

Reasons for Sentence released on: 17 July 2018

Counsel:

• S. Aujla, counsel for the Public Prosecution Service of Canada
• J. Christie, counsel for the defendant Kenneth Phillip Clifford

Reasons for Sentence

Introduction

[1] Importing benzoylmethylecgonine, also known as cocaine, schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19, contrary to s. 6(3)(a.1), is an offence for which one is liable to imprisonment for life and to a minimum punishment of imprisonment for a term of two years.

[2] The offender returned from the Dominican Republic in January of this year with almost 16 kgs of cocaine. He never retrieved luggage with an identification tag in his name, which contained the contraband, from the baggage carousel upon his arrival at Pearson Airport. Due to an outstanding warrant for a failure to comply with a reporting condition of probation, there was a warrant for his arrest and the authorities confronted the offender with the luggage in his name. He denied any possession or interest in the bag. Authorities were able to obtain airport security footage from the Dominican Republic which showed that the defendant had checked in that bag for the flight he took home. The drugs are worth over three-quarters of a million dollars and two representative samples tested at 78% and 88% purity.

[3] This crime carries a maximum penalty of life imprisonment. The prosecutor suggested that the appropriate range for this offence is 10-12 years and seeks a 12 year penitentiary sentence and ancillary orders (deoxyribonucleic acid sampling ("DNA") and a weapons prohibition) in light of the aggravating features of this offence.

[4] Initially, counsel for the offender suggested a penitentiary sentence of 8 years and when pushed during submissions on an apparent inconsistency in the cases presented and what was sought, counsel revised the position to 6.5 years.

[5] I find that a penitentiary sentence of 8 years is appropriate for Mr. Clifford. I will set out my reasons for this sentence using the following headings:

• Sentencing Principles and Range
• The Circumstances of the Offence and The Offender
• Analysis

Principles of Sentencing and the Appropriate Range

[6] The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code (R.S.C. 1985, c. C-46) (the "Code") is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation, deterring the offender and other persons from committing offences, separating offenders from society, where necessary, assisting in rehabilitating offenders, providing reparation for harm done to victims or to the community, and promoting a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[7] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence. The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[8] In R. v. Hamilton and Mason, Doherty J.A. of the Ontario Court of Appeal stated that:

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence…

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[9] The Court quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[10] Section 718.1 of the Code ensures that proportionality is the fundamental principle of sentencing. However, proportionality is not the sole principle to be considered. A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[11] In the circumstances of this case, where all parties submit that a penitentiary sentence is warranted, it is trite to note that s. 718.2 provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances" and "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders." Obviously, as a sentencing tool, imprisonment is to be used only as a last resort when required by the circumstances of the crime and the background of the perpetrator.

[12] Our Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. Although the rehabilitation of the defendant is a much reduced consideration in the overall calculus of an appropriate sentence in this case, it is still a factor I must consider.

[13] Before I can apply the principles of sentencing and attempt to place this case along the continuum of an appropriate sentence for serious drug importation, it is necessary to consider the underlying circumstances of the offence and the background of the defendant.

Circumstances of the Offence and the Offender

[14] It will be helpful to recall the factual findings I made. They are:

i. The amount of cocaine imported is 15.85kgs, at approximately 80-90% purity;

ii. The value of the drugs is $760,000; and

iii. The defendant checked in at the airport in the Dominican Republic with the luggage containing the drugs and did not retrieve the luggage from the baggage carousel in Pearson Airport.

[15] I have considered both the mitigating and the aggravating factors in this case.

[16] The aggravating factors arise out of the offence itself. This was a planned event that was motivated by greed. I find that the defendant was mature enough and experienced enough (by having an extensive criminal record) to have foreseen the possible consequences of bringing such a large amount of cocaine into Canada. Cocaine is a dangerous and addictive drug. It causes some users to use beyond their means and then to commit crimes to feed their unending habit.

[17] The prosecution submits that this amount of cocaine could be distributed as more than 15 million individual "hits." The defendant took no issue with this submission. Even if the calculation is imprecise, when considering the overall harm that this amount of cocaine and the trail of violence and destruction that drug trafficking and drug use entail, it is staggering.

[18] In a very real sense, this offender has participated in a scheme to destabilize our country and poison untold communities.

[19] There are also a number of mitigating factors here. The defendant pleaded guilty at an early opportunity before a trial was set. The defendant is obviously a courier, a position at the bottom of the hierarchy of organized, sophisticated, commercial drug importation and distribution. The defendant is remorseful for this offence. During the sentencing submissions he openly wept. As well, I accept the uncontradicted evidence found in the pre-sentence report that the defendant is a drug addict. His long criminal record for mostly petty crimes also reflects this.

[20] The pre-sentence report is neither positive nor negative. It chronicles the sad life of Mr. Clifford and his addiction to drugs and alcohol from an early age. Of note, the defendant is a now a parent and he is known to be hard-working when he is not committing crimes to fuel his addiction. Also, it is accepted that the offender committed this crime to earn money to assist his father's apparent drug debt.

[21] I am also mindful that in the past, the defendant has never been imprisoned for more than one year. Given that this would be the first penitentiary sentence for this offender, I must determine whether an appropriate sentence should fall at the lower end of the appropriate sentencing range as suggested by his counsel.

[22] I am prepared to give the defendant a significant reduction from what is otherwise an appropriate sentence in this case to give effect to the first penitentiary sentence principle. By reducing the sentence the court acknowledges that serving a significant penitentiary sentence will be a drastic consequence for this offender.

Analysis

Sentencing Cases

[23] The parties submitted cases for various amounts of importation where offenders (usually first offenders) received sentences ranging from 21 months to 19 years. I did not find the cases helpful, except to the extent of trying to fix a range of sentence for this type of offence in similar circumstances. On the basis of the following cases I would fix the range of sentence for this type of offender and this type of offence of cocaine importation at 7-12 years: R. v. Cunningham; R. v. C.N.H., [2002] O.J. No. 4981 (C.A.); R. v. Singh, 2014 ONCA 791; R. v. Aujla, 2015 ONCA 350; R. v. Duncan, 2016 ONSC 1319; R. v. Jackman, 2016 ONCA 121; R. v. Gopie, 2017 ONCA 728; and R. v. Reid, [2018] O.J. No. 3258 (S.C.J).

[24] The prosecutor submits that the top end of the range is appropriate given the quantity of cocaine and the fact that the defendant is not the typical courier, but someone who may be involved at a higher level. The defendant believes that a guilty plea merits a 1/3 discount from the sentence imposed after a trial and justifies the proposed sentence on the basis that he is every bit as vulnerable as the archetypal courier found in cases like Hamilton and Mason.

[25] I have considered all of the sentencing authorities, the additional evidence I have received, and the submissions of both counsel.

[26] I find that a sentence of 8 years is appropriate in the circumstances. Although I disagree with the general proposition that a guilty plea merits a 1/3 reduction of what is otherwise an appropriate sentence for the offense and the particular offender, there is no doubt that I should credit Mr. Clifford for his guilty plea, his remorse, and the acknowledgement of harm caused by his offence.

[27] Mr. Clifford is not a first offender, but he has accepted responsibility for his offence and he has demonstrated some insight into his conduct through the expression of his allocution. He appears to be remorseful. His conduct was motivated by his love for his father. I accept that he was desperate due to his history with his father to do what he could to help his father. It was a sorely misguided plan to help, but Mr. Clifford is not the worst type of courier offender and this is not the worst type of courier importation offence. For that reason, an appropriate sentence should not fall at the top of the range, where there has been a guilty plea and remorse is shown.

[28] A sentence of 8 years is significant and should send a strong message to would-be drug couriers that they will lose a substantial amount of freedom by participating in this crime. I do not find that whether the sentence is 8 versus 9 years any less deterrence would be achieved. Moreover, this sentence sends a strong message of denunciation. One of our prized possessions in our democracy is our liberty. Mr. Clifford has never been to the penitentiary. He is about to spend a significant portion of time there. This sentence strikes the right chord of denunciation in this case.

[29] I have taken into account the guilty plea and the fact that this is a first penitentiary sentence for this offender. Given that sentences for multi-kilogram cocaine importation below the 7 kg level merit a sentence in the range of 6-8 years, I would normally expect that 9-10 years would be appropriate for an offender pleading guilty in these circumstances. However, I have reduced what would otherwise be appropriate to 8 years, to recognize that this is Mr. Clifford's first penitentiary sentence. As well, Mr. Clifford is not a youthful first offender and cannot expect to be sentenced at the bottom of the appropriate range (7 years).

Pre-Sentence Custody Credit

[30] I have given Mr. Clifford 1.5 credit for each day he has been awaiting trial and sentencing. Mr. Clifford is credited 9 months for the time he has spent in pre-trial custody.

Conclusion

[31] Kenneth Clifford you are sentenced to a penitentiary sentence of 8 years, less 9 months credit, so you will serve another 7 years and 3 months in the penitentiary for this offence.

[32] I am imposing a s. 109 Order for the prohibited items in s.109(2) for 10 years and for the other proscribed items for life.

[33] Given the offence and the utility of DNA to solve crimes involving drug importation, it is in the public interest and the best interests of the administration of justice to make the DNA order. So that order is granted as well.

[34] I will make any consent order for forfeiture or return of property upon receipt of a draft order from both parties.

[35] I will give you 10 years to pay the Victim Surcharge.

Released: 17 July 2018

Justice G. Paul Renwick