Court Information

Court: Ontario Court of Justice Court File No.: 19-12000051-02 Date: December 3, 2019 Location: Toronto Region – Old City Hall

Parties

Between:

Her Majesty the Queen

— And —

Yaroslav Pastukhov

Before: Justice H. Pringle

Heard on: September 9 and October 31, 2019

Reasons Released: December 3, 2019

Counsel

For the Crown: Faiyaz Alibhai

For the Accused: T. Daniel Kirby

Decision

PRINGLE J.:

Introduction

[1] Mr. Pastukhov, here today for sentencing on one count of conspiracy to import cocaine, was brought at a young age to Canada from the Ukraine. His initial existence in this country, alone with his mother, was difficult. His mother's letter to the Court described her young son, finding discarded furniture on the street and bringing it home so they could live more comfortably.

[2] Despite having little, Mr. Pastukhov described his youth as lacking for nothing. The defendant's mother pulled them past this challenging beginning, upgrading her education and opening up employment opportunities. Her hard work ethic passed onto her son. Throughout school, the defendant delivered newspapers, worked in restaurants and in various retail stores.

[3] After high school, the defendant began his post-secondary studies, in English, at Laurentian. But he quit two years in, deciding instead to enter the work force. The family, which included an unsupportive stepfather by this time, was struggling financially, and the defendant wanted to contribute.

[4] He began by working at a number of different marketing jobs before being offered an opportunity in journalism. More specifically, in 2014 the defendant was hired by Vice Media as a music editor. He found the glamour, the famous people, and the club life appealing. The defendant started to experiment with cocaine, finding it a common feature in the music industry.

[5] Mr. Pastukhov also desired to advance his journalism career further. Like the Vice Media/ISIS fighter story, he hoped to embed himself into the narrative of a cocaine importation scheme, write about it, and break his journalism career wide open. This misguided ambition got him criminally charged and dragged others down with him.

[6] On September 9, 2019, he admitted conspiring to import an immense amount of cocaine into Australia. He was 23 years old when he committed this crime. Four years have since passed. The defendant is most unlikely to return to the criminal justice system again. But the crime he committed must be met by a significant penitentiary term. To his credit, the defendant pled guilty knowing this fact.

[7] Mr. Pastukhov's sentence must balance his past good character and strong future prospects with the gravity of the offence he committed. This tension has not been easy to resolve.

The Conspiracy to Import Cocaine

[8] The lifespan of this conspiracy ran over two months in 2015. Robert Wang, who had interned at Vice Media that summer, connected with Mr. Pastukhov in the fall. He hoped to build on this networking connection to promote his own music career. Instead, Mr. Pastukhov solicited Mr. Wang into becoming a drug courier. The defendant said it was easy and the money was good – so good that he had done it himself. For one trip to Australia, Mr. Wang would get $10,000 to split with a travel companion, plus $2,000 of his own spending money.

[9] It did sound good, and Mr. Wang initially agreed. However, he quickly got cold feet and texted the defendant to decline. The defendant did not respond to this text, but his co-accused, Ali Lalji, did, offering to "sweeten the deal". The two talked, with Lalji promising Wang that Mr. Pastukhov would help him with his music career and making threatening references to the "heavy hitters" involved in this scheme.

[10] After the talk with Mr. Lalji, Mr. Wang was back on board as a courier. A few weeks later, the defendant had found a female travel companion for Mr. Wang, Portia Wade. He promised Mr. Wang that Ms. Wade was "an international model" and said that he himself was jealous.

[11] They all met, including Mr. Pastukhov and Mr. Lalji, on December 14, 2015. Mr. Lalji, who had booked and paid for their trips, provided Mr. Wang and Ms. Wade with a travel itinerary and some basic instructions. Lalji and the defendant said they would need burner phones. Mr. Pastukhov explained a scheme, involving knowing the serial number of a dollar bill, that would identify other co-conspirators in America and Australia. He discussed maintaining contact throughout the trip in a group chat.

[12] Two days later Robert Wang and Portia Wade flew to Las Vegas. Mr. Pastukhov directed moves to put the plan into action. He asked for the new phone numbers of the burner phones purchased, so that he could pass those numbers on. He orchestrated identifying other co-conspirators, ensuring the currency's serial number was texted to him so he could send it to some unknown person on the other end. He directed them to a second location to get a suitcase from, apparently, Mr. Senusi.

[13] Also in Las Vegas were the defendant's roommate, Jordan Gardner, and a man named Nate Carty. Carty had originally met the defendant through Vice Media contacts. Mr. Pastukhov quickly enticed Carty into becoming a drug courier, with a free trip to Australia and $3,500 held out as bait. When Carty's original travel companion backed out, Mr. Pastukhov arranged his own roommate Jordan as a replacement.

[14] Robert Wang and Portia Wade, Nate Carty and Jordan Gardner, and Kutiba Sensusi all flew from Vegas to Sydney, Australia. Upon arrival, they were arrested. Almost 40 kg of cocaine was intercepted in their luggage, with 28 kg of it being pure. The street value of this cocaine the defendant helped bring into Australia was 20 million dollars.

[15] Wade, Wang, Senusi, Gardner, and Carty all had the defendant's contact information in their phones. Text messages proving the defendant's role in the conspiracy were recovered. Carty and Wang gave statements to the police, admitting their own actions and incriminating the defendant and Lalji. The two were arrested, after a Canadian investigation, in January 2019.

[16] In September 2019, Mr. Pastukhov accepted responsibility for his crime by pleading guilty to one count of conspiracy to import cocaine. The Crown agrees his plea can properly be characterized as an early one.

Principles of Sentencing

[17] Every sentence must properly reflect the gravity of the crime committed and the offender's degree of responsibility in committing that crime. Every sentence must promote one or more of these objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and to the community.

[18] General deterrence and denunciation largely control the quantum of sentence to be affixed upon Mr. Pastukhov. The gravity of a crime like cocaine importation commands this, as per R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), at paras. 103-105:

If the offence is particularly serious in that it causes or threatens significant harm to an individual or segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718. Prior to the introduction of the conditional sentence, where the objectives of deterrence and denunciation dominated, imprisonment was almost inevitable.

The importation of dangerous drugs like cocaine and others found in Schedule I of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 has always been considered among the most serious crimes known to Canadian law: Sentencing Reform: A Canadian Approach. Report of the Canadian Sentencing Commission, Ottawa Ministry of Supply and Services (1987), p. 205. The immense direct and indirect social and economic harm done throughout the Canadian community by cocaine is well known: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 160 D.L.R. (4th) 193 at 235-37 (S.C.C.), per Cory J., in dissent on another issue; R. v. Smith (1987), 34 C.C.C. (3d) 97 at 123-24 (S.C.C.). The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para. 224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 77 C.C.C. (3d) 124 at 143-44 (S.C.C.).

Cocaine is not indigenous to Canada. Without the cocaine importer, whatever his or her motive or involvement, there would be no cocaine problem. Both before and after the amendments to the sentencing provisions Part XXIII of the Criminal Code and the introduction of the sentencing provision (s. 10) into the Controlled Drugs and Substances Act, S.C. 1996, c. 19, this court has emphasized the gravity of the crime and, therefore, the need to stress denunciation and deterrence in sentencing all drug importers, even vulnerable first offenders.

[19] These observations apply, with full and equal force, to the defendant's case and the sentence he must receive.

Applicable Sentencing Range

[20] The sheer quantum of cocaine imported into Australia indisputably places this case into the category of a large-scale cocaine importation scheme. As per Code, J., in R. v. Duncan, 2016 ONSC 1319 at para. 37, there is "a range of 12 to 19 years for the leaders or principals in large scale cocaine importation schemes". Mr. Alibhai, on behalf of the Crown, argued this range applies here. Given the mitigating factors, he submitted Mr. Pastukhov's sentence should be 12 years, at the bottom of this range.

[21] Mr. Kirby, on behalf of the defendant, argued for between six to eight years, similar to the range for couriers in R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.). While his client was not a drug courier, the defendant submitted Mr. Pastukhov's role was not much higher than that.

[22] Clearly, both Mr. Pastukhov and Ali Lalji organized and directed four of these front-line couriers. Both organized and facilitated the couriers' travel plans from the Toronto end. Mr. Pastukhov personally solicited Carty and Wang through his Vice media connections, and remained in consistent contact. Mr. Lalji stepped in when Wang tried to back out, making both promises and veiled threats. Even though Lalji and the defendant had different roles, I found they were on equal footing in this operation.

[23] The Crown pointed out that, of the conspirators in the specific and limited conspiracy alleged here, Mr. Pastukhov and Mr. Lalji were the most involved and the most morally culpable. Accordingly, the Crown argued that because Mr. Pastukhov was at the top of this conspiracy chain, as it was particularized in the information, the 12 to 19-year range applied.

[24] Respectfully, I could not accept this argument. The appropriate range of sentence must be determined by the degree of responsibility of the offender and the gravity of the offence. It should not be determined by who the Crown chooses to name in an information, or how the information is particularized, or whether or not the Crown chooses to add "and persons unknown" to reflect the existence of unknown co-conspirators.

[25] Moreover, the evidence convinced me that Mr. Pastukhov was not a leader or a principal in this large-scale cocaine importation scheme. Obviously, there were people much higher than the defendant, who controlled it from the American and Australian ends using various middlemen. The defendant had been a courier but weeks before, and it was most unlikely that he climbed the ladder from courier to trusted mastermind in the span of those few weeks.

[26] In addition, the following factors convinced me that Mr. Pastukhov was neither leader nor principal:

• The short timeframe in which Mr. Pastukhov was involved with the cocaine importation scheme overall;

• That Mr. Pastukhov encountered the scheme while researching a story for Vice Media, as opposed to having developed some level of underworld connections of his own volition;

• That only a few weeks before, Mr. Pastukhov admittedly acted as a courier himself to bring drugs into Australia;

• The lack of sophistication that Mr. Pastukhov evidenced in effecting this scheme, as exemplified by using inexperienced couriers, including his own roommate, who were in frequent and undisguised contact with him, and;

• The evidence that supported the inference that someone higher was instructing Mr. Pastukhov on what to do.

[27] With respect to the latter point, this was revealed in text messages the defendant sent. For example, the defendant texted Robert Wang that "buddy who plans the trips comes to town on Thursday so let's sit down before then". When Ms. Wade asked the defendant about meeting, the defendant responded, "I've got a call with the guy at 6 tonight to go over details". Quite obviously, there was a higher-up who crafted these details, which Mr. Pastukhov then passed onto the couriers.

[28] This is not to suggest that Mr. Pastukhov's moral blameworthiness was insignificant. He exploited his relationship with these couriers, including Mr. Wang's dreams of working in the music industry. Mr. Wang and the others were victims, albeit willing ones, of Mr. Pastukhov's criminal offending. But after assessing all the evidence, I found Mr. Pastukhov was proven to be nothing more than a dispensable middle man. While the amount of cocaine imported fits into the category that attracts the 12 to 19-year range, Mr. Pastukhov's role in the importation scheme did not.

[29] The applicable range of sentence for a large-scale cocaine importation scheme, for an offender that falls into the category of a middle man, appears to lie, flexibly, between 9 and 14 years. I have derived this general range with heavy reliance on the sentencing ranges analyzed in R. v. Duncan.

[30] There is a general range of between 6 and 8 or 9 years for a 'mere courier' importing cocaine in large quantities similar to the cocaine in this case. There is a general range of between 12 and 19 years, imposed upon principals and leaders who conspire to import a similar amount of cocaine. The defendant's role places him somewhere in the middle of the two, as described by Code J. in Duncan at para. 38:

In my view, the present case should be situated somewhere between the above two lines of authority. The three accused in this case have greater moral responsibility for the offence than a 'mere courier', and the offence itself is more serious because of the breach of trust. On the other hand, the accused were not principals and they were not the leaders in the importation scheme.

[31] In Duncan, 12 years was fit for offenders, neither principals nor couriers, who conspired to import at least 30 kilos of cocaine. The breach of trust element referenced the fact that these offenders were airport employees who exploited this position to help effect the importation scheme. They were sentenced after trial.

[32] The offender in R. v. Niemi, [2008] O.J. No. 5830 (S.C.J.), was found, at para. 20, to have a role greater than courier in the importation of 593 kilograms of cocaine and 37 kilograms of hashish. His sentence of 14 years was upheld on appeal: R. v. Niemi, 2012 ONCA 133, [2012] O.J. No. 869. By way of contrast, his co-conspirator, who was situated at the top of the conspiracy, was re-sentenced on appeal to 19 years.

[33] Finally, in R. v. McInnis, 2017 ONSC 2779, [2017] O.J. No. 2420 (S.C.J.), the offender was a middle-man, with a related conviction, who conspired to import 19 kilos of cocaine and was sentenced to 10 years. Forestell J. concluded, at para. 29, that "a sentence of 10 years is a sentence at the very low end of the range for this type of offence and this type of offender."

Aggravating, Mitigating, and Neutral Factors

[34] The following factors are aggravating in this case:

• The nature of the drug imported into Australia. Cocaine is a pernicious drug that spawns endless human misery in the form of addiction;

• The significant quantity of cocaine imported into Australia. Almost 40 kg of cocaine was imported, lending itself to a calculation of over $20 million street value;

• The motive for Mr. Pastukhov's offending was greed. I have no doubt he was set to benefit beyond the small amounts discussed in the evidence, and the career advancement he sought was just another form of non-monetary personal gain;

• The callousness with which Mr. Pastukhov solicited people to be couriers, including exploiting Mr. Wang's hopes in the music industry, involving another male who he himself characterized as "too young", and telling Carty that if he found a girl to go with him, he should not "tell her about the work".

[35] The following factor is neutral in this case:

• The fact that the defendant is being sentenced for importing drugs into Australia, as opposed to importing drugs into Canada.

[36] The following factors are mitigating in this case:

• The decision of the defendant to waive his right to trial and enter an early guilty plea. This is evidence of remorse and must, in my view, mitigate the defendant's sentence in a discernable way: see R. v. Valentini (1999), 43 O.R. (3d) 178 (C.A.) and R. v. Berquas, 2018 ONCJ 623 at paras. 36-39;

• The defendant's stability in the community, including the family and friends that the defendant is most fortunate to have enveloping him;

• The defendant's status as a youthful first offender, with no prior criminal justice antecedents, and;

• The defendant's strong prospects for rehabilitation, as evidenced by the positive Pre-Sentence report, the letters which proved the defendant's criminal offending was out of character, and the remorse he expressed directly to this Court.

A Fit Sentence for This Offence and This Offender

[37] After taking into account the principles of sentencing, and the need for Mr. Pastukhov's sentence to serve general deterrence and denunciation, I have concluded the sentence proposed by his counsel is, respectfully, too low. Six to eight years would better suit a courier, and Mr. Pastukhov's moral blameworthiness is higher than that.

[38] However, the Crown's 12-year position was premised on the notion that Mr. Pastukhov was a leader or a principal, and that as a first offender his sentence should fall at the bottom of that range. I cannot accede to that submission either, given the factual findings I have made about Mr. Pastukhov's role in the conspiracy.

[39] But for the guilty plea and Mr. Pastukhov's status as a youthful first offender, the quantum of cocaine involved and Mr. Pastukhov's particular role in the scheme would have merited a sentence of eleven years. However, both are significantly mitigating.

[40] I take the Court of Appeal's direction, in R. v. Malanca (2007), 228 (3d) 90 (C.A.) that even in the most serious of drug importation cases, a sentencing judge must still exercise restraint in sentencing a youthful first offender, and consider his or her rehabilitation. In reducing Malanca's sentence from life to 19 years for importing almost 600 kgs of cocaine, the Court said at para. 59:

Moreover, and importantly, given that the appellant is a youthful first offender, the primary objectives to be considered by the sentencing judge should have included individual deterrence and rehabilitation. Ordinarily these are paramount objectives in such circumstances and require a sentence that should be the minimum sentence necessary in all the circumstances.

[41] If Malanca's sentence for importing almost 600 kilos of cocaine still had to reflect specific deterrence and rehabilitation, than certainly the defendant's sentence must too. I have therefore taken into account the need for Mr. Pastukhov's sentence to deter him and, more importantly, to rehabilitate him.

[42] In the end analysis, I am imposing a sentence of nine years in the penitentiary, less presentence custody, upon Mr. Pastukhov. This is a significant penitentiary sentence. But I also hope it will still leave light at the end of the tunnel for Mr. Pastukhov, when he is released and continues the process of rehabilitating himself in the community.

Presentence Custody and Downes Credit

[43] Mr. Pastukhov, before being released on bail, served the equivalent of 14 days in jail. As of the date of sentencing argument, he had been on house arrest for 265 days. The defence sought the equivalent of 88 days presentence custody be credited. On authority of R. v. Tello, 2018 ONSC 2259, the Crown fairly agreed that time spent on house arrest should be credited at between 60 to 90 days.

[44] The parties were not materially in dispute on this point. I credited the defendant with 88 days of presentence custody for time spent under house arrest to October 31, and with another 11 days to reflect the time on house arrest since then. Coupled with time he spent in jail, Mr. Pastukhov's presentence custody has been calculated at a total of 113 days. This leaves him with 8 years and 252 days left to serve. He will be ordered to provide a sample of his DNA and will be subject to a s. 109 weapons prohibition order for ten years.

Released: December 3, 2019

Signed: Justice H. Pringle