ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-08-2950-0000
DATE: 20120306

B E T W E E N:

HER MAJESTY THE QUEEN

Christopher Walsh and Cindy Afonso, for the Crown

• and -

TERRENCE KUM

Alan Gold and James Hawkins, for the Defence

Defendant

HEARD: February 23, 2012

REASONS FOR SENTENCE

Wein J.

Overview

[ 1 ] The issue on this sentencing decision is the appropriate sentence to be given to a mid-to-upper level drug trafficker who has been convicted of trafficking in close to three kilograms of cocaine, and found in possession of proceeds of crime in the amount of $54,040. Mr. Kum was convicted of both counts, following a trial by jury.

[ 2 ] A penitentiary sentence is clearly required: the Crown submits that the appropriate range of sentence to be considered is one of 8 to 10 years while the defence submits that the appropriate range is 4 to 6 years.

Facts of the Offences

[ 3 ] A wiretap investigation into a drug importation and trafficking ring, initially focussed on other persons - Mr. Reid and Mr. Harding,- led the police to stage takedowns following a drug transaction between Mr. Kum and Mr. Harding. These arrests occurred at separate locations shortly after the meeting between the two. Mr. Harding was found with three kilograms of cocaine, in a bag on which Mr. Kum’s fingerprint was detected. Mr. Kum was arrested at his vehicle outside his home, with the $54,040 in cash sitting on the back seat. In accordance with the verdict of the jury, I find that three kilograms of cocaine were exchanged with $54,040 in cash.

[ 4 ] The wiretap evidence leads to the inescapable conclusion that this particular exchange was part of an ongoing relationship among Mr. Kum, along

with a person with a Jamaican accent who was calling from a number with a Jamaican area code, and Mr. Harding. Mr. Kum is indisputably, on the evidence at trial, the person referred to as “519”. The cell phones and phone bills in the car at the time of his arrest link him directly to the phone number in the wiretaps, and he was the person at the meeting arranged by recorded conversations with that number.

[ 5 ] The evidence suggested transactions were normally of multiple kilograms, and that the two kilogram exchange that had previously occurred was being “stepped up” to greater amounts. Mr. Harding suggested he wanted up to five kilograms at a time. The wiretaps also suggested that Mr. Kum was endeavouring to get larger shipments, and had on this occasion managed to get an additional kilogram to add to the usual two, for the three kilogram delivery on the day he was arrested. The wiretaps lead to the conclusion that the payment of $54,040 was for a previous shipment of two kilograms at the price of $27,000 per kilogram, and that payment for the three kilograms would later be made.

[ 6 ] It is obvious from the wiretap evidence that Mr. Kum had a high level of involvement in this group, that the involvement was frequent, and included face to face meetings and exchanges. Clearly Mr. Kum was at a level where he had authority to negotiate price, quantity, and location. He was far removed from a mere courier, even an upper level trusted courier. He had a significant degree of control.

Mr. Kum’s Personal Circumstances

[ 7 ] The evidence, supplemented by the pre-sentence report and the thorough submissions of counsel, makes it clear that Mr. Kum has been a hard working citizen of previous good character. He has no relevant prior record: a shoplifting charge in 1980 resulted in probation, but is so old as to be irrelevant to these proceedings, and I accept the submission that he is to be treated as a first offender.

[ 8 ] Mr. Kum has been consistently employed throughout his life. He is a Canadian citizen, has three adult children, two of whom are in university or community college. He is, as Mr. Gold has correctly emphasized, likely never to appear before the court again. Since his arrest in June of 2007, he has remained in compliance with the terms of his bail, without further incident.

[ 9 ] Mr. Kum presents with a number of significant mitigating factors. He has no relevant prior record. He has been for a lengthy period of time a contributing member of society. He was trained as a medical assistant, and with continuing education became a stationary engineer in midlife. He remains the support for two children now in university or college. He is 57 and earned a stable income of over $50,000 a year. Since his arrest on these charges, he has become more dedicated to his religion. He is described in positive terms by his family and friends.

Case Law:

[ 10 ] In support of the position that the appropriate range of sentence to be applied in this case is between four and six years, Counsel for Mr Kum relies on a series of cases, many of them from outside Ontario.

[ 11 ] Because there are so many important variables in sentencing, direct comparison to cases with significantly different mitigating or aggravating factors, or from a number of years ago, is of limited assistance.

[ 12 ] A sentence of 4 1/2 years in the penitentiary was upheld by the British Columbia Court of Appeal in R. v. Sandhu , [1994] B.C.J.No.520 , for a 29-year-old accused found in possession of 2 kg of cocaine and distributing paraphernalia. While the court doubted the social benefit of ”warehousing" a person who had been rehabilitated, the sentence was upheld as being similar to sentences imposed on co-accused and in other like cases.

[ 13 ] Following a guilty plea, termed "not timely", to trafficking in cocaine and firearms offences, where the amount the cocaine found was 4.87 kg, a sentence of four and half years was imposed by Justice Martin (as he then was) of the Alberta Court of Queens Bench, in R.v. Chan [ 2005 ABQB 274 , 2005] A.J.No.443. The factors include a plea of guilty, a gambling addiction, and remorse, as well as credit for 10 weeks in pre-trial custody, distinguish Chan from the within case.

[ 14 ] Similarly in R. v. Deol, [2006] M.J.No.147 a 4 year sentence was upheld following a conviction on a charge of possession for the purpose of trafficking, involving 1 kg of cocaine. The sentence was said to be “at the higher end of the sentencing range”

[ 15 ] Finally, in R. v. Camara [2006] B.C.J.No.1478 , a five-year sentence for conspiracy to traffic in cocaine, trafficking cocaine, and possession of cocaine for the purpose of trafficking was upheld, on the basis of the trial judge judge’s careful consideration all of the number of factors, including the fact that Mr. Camara was near the top of the hierarchy, and was involved at the "multi-kilogram" level.

[ 16 ] Assuming that these cases relied on by the defence do support the contention that a sentence of four or five years is appropriate, what justifies the Crown submission that a higher range of 8 to 10 years is the appropriate sentence here? More recent authorities from the Ontario Court of Appeal do now suggest that at the multi-kilogram level, a sentence of that longer length is the appropriate range for trafficking in multiple kilograms of cocaine.

[ 17 ] The Crown filed authorities, referred to in a chart termed "Sentencing Authorities for Trafficking in Cocaine – High-Level Amounts", in support of the range of 8 to 10 years. These authorities, all from the Ontario Court of Appeal: - R.v.Bryan, 2011 ONCA 273 , [2011] O.J. No. 1581 R. v. Nero, 2008 ONCA 622 , [2008] O.J. No. 3506, R. v. Muise , 2008 ONCA 665 , [2008] O.J. No. 3791, R. v. Lajeunesse, Paris, and Norman , 2006 11655 (ON CA) , [2006] O.J. No.1445 - suggest that an early guilty plea is a significant factor, that the lack of a prior criminal record is a significant factor, and that the quantity involved is also significant. In Bryan , released less than a year ago, the court stated "normally, in cases of this nature, sentences of 5 to 8 years would reflect the proper range for someone, without a record, convicted of possession for the purpose of trafficking in slightly more than a pound of cocaine". That case involved a plea of guilty, albeit with fairness concerns indicated on appeal.

[ 18 ] The other cases referred to by the Crown, involving higher amounts of 3 kilograms or multi-kilos, resulted in sentences of 7 1/2 years to 12 years. In the case of Mr. Paris, the sentence of 7 1/2 years was pronounced to be “high,” but within the range for those trafficking in multi-kilos of cocaine. Mr. Paris was termed a trusted lieutenant in the enterprise, but not the operating mind.

[ 19 ] In 2003, in R.v. Bajada 2003 15687 (ON CA) , [2003] O.J. No.721,the Court of Appeal indicated “it would appear that sentences of five to 5 1/2 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.’ (at para.13). The quantity in Bajada was just over half a kilogram.

[ 20 ] Subsequently, in Nero , the court distinguished Bajada, and held it would be an error in principle to consider a five-year sentence adequate where trafficking and possession charges relate to significant quantities of cocaine, over a three-month period, indicative of an extensive involvement in and familiarity at a high level with the drug business. In Nero , a case involving an early guilty plea by an accused with an unrelated record, the sentence was 9 years, with 8 years said to be appropriate for the drug offence.

Mitigating and Aggravating Factors

[ 21 ] The court is presented with a not atypical fact situation. A contributing member of society has been convicted of a serious offense. Against the very positive features represented by his background, the lack of a record, the contributions to society, the ongoing education, the strong indicia of good character, the court must consider the significant level of involvement that Mr. Kum had in the offense. The court must be mindful that trafficking in cocaine is considered to be less serious than importing, albeit the wiretap evidence shows that Mr. Kum was aware of and connected to the importing arm of this group.

[ 22 ] Mitigating factors such as a plea of guilty or motive other than greed are not present in this case.

[ 23 ] The quantity and value of the cocaine seized-close to 3 kilograms at $27000 per kilogram at his stage make this a very serious offence. Mr Kum was intrinsically involved at a mid to high level in the distributions scheme, which aggravates his role and requires a higher sentence than that imposed for couriers or even trusted runners of high quantity drugs.

[ 24 ] In these circumstances I must find that the range suggested by the Crown is the appropriate range to be considered in this case,

[ 25 ] General deterrence is a primary purpose of sentencing in this case.

[ 26 ] While the need for deterring Mr Kum may be diminished as a factor, there is a societal need to deter others, that cannot be met if the sentence is unduly reduced for factors personal to Mr. Kum. Those features do justify a significant reduction in sentence, to the lower end of the range, but not to the level suggested by the defence.

[ 27 ] Sentencing is not a matter of mathematical precision, but, within ranges prescribed by the legislation and refined by relevant case law, the discretion of the Court is narrowed. Despite Mr. Gold’s usual able argument, I cannot accept that I should depart from the range indicated by the Ontario appellate authorities, of 8 to 10 years.

[ 28 ] Mr. Kum will be sentenced to 8 years in the penitentiary on count one, less 20 days (on account of pre-trial custody, crediting the 10 days served before release, on a two for one basis, as available prior to the legislative changes to section 719 (3) and (3.1) of the Criminal Code ), for a net effective sentence commencing today of 7 years and 345 days in the penitentiary. The sentence on count two will be a sentence of five years concurrent.

Ancillary Orders:

[ 29 ] Counsel are agreed that an order pursuant to the provisions of s. 109 of the Criminal Code is mandatory, and that order will be issued, for 10 years with respect to items in subsection 109(2) (a) and life with respect to items referred to in subsection 109 (2) (b).

[ 30 ] An order of forfeiture is mandated pursuant to the provisions of s. 462.37 of the Criminal Code . The forfeiture will cover the $54,040 seized from the back seat of Mr. Kum’s vehicle, the packaging around the money, and the three cell phones which were said to have been seized from Mr. Kum. Although one cell phone was not tested, all three were found at the same time and place and all should be forfeited.

[ 31 ] The Crown does not seek to have forfeited the wallet or the money ($18 US and $635 CDN) found in it.

[ 32 ] The Crown also sought an order for the taking of a DNA sample pursuant to section 487.051(3) (b). Written submissions were received from both parties on this issue. I am satisfied that it is in the best interests of the administration of justice to make the order.

[ 33 ] It is well established that in the “vast majority of cases” it is in the best interests of the administration of justice to make such an order: R. v. Hendry , 2001 21168 (ON CA) , [2001] O.J.No.5084 (Ont.C.A.). Mr. Kum, as an adult offender, has a reduced expectation of privacy. Procedures for taking the sample have a minimal impact on security of the person and there are established protections against misuse of the DNA profile information. There are no features of the accused or of the offence that would incline against the making of the order. He has, for these purposes, a prior record and the offence is most significant, involving ongoing criminality, planning, and other offenders. It is in the interests of the administration of justice that the order be made in this case.

[ 34 ] Accordingly the request of the Crown for a DNA order is granted.

Final Decision:

[ 35 ] The record will be endorsed as follows:

Count one – trafficking in a controlled substance: eight years in the penitentiary less 20 days for 10 days of pre-trial custody on a two for one basis, for a net effective sentence commencing today of seven years and 345 days in the penitentiary.

Count two – possession of the proceeds of crime: five years in the penitentiary, concurrent.

Weapons prohibition order to issue pursuant to section 109 of the Criminal Code .

Forfeiture order to issue.

Order for the taking of a DNA sample to issue.

Wein J.

Released: March 6, 2012