ONTARIO

SUPERIOR COURT OF JUSTICE

DATE: 20120302

BETWEEN:

HER MAJESTY THE QUEEN – and – Selwan Oraha

Christopher Bundy and Arielle Elbaz, for the Crown

Adam Schultz and Chris Biscoe, for Selwan Oraha

HEARD: March 1, 2012

Archibald J.

Reasons for Sentence

1. INTRODUCTION

[ 1 ] On January 24, 2011, I convicted Mr. Oraha of four offences contrary to the Controlled Drugs and Substances Act , S.C. 1996, c. 19:

1. Possession of Cocaine for the Purpose of Trafficking (three kilograms);
2. Possession of Methamphetamine for the Purpose of Trafficking (also known as “Crystal Meth” or “Speed”) (three kilograms);
3. Possession of MDMA for the purpose of trafficking (also known as “Ecstasy”) (1.3 kilograms);
4. Conspiracy to Traffic Cocaine.

[ 2 ] These convictions were entered by me after Mr. Oraha pled not guilty, but consented to the admission into evidence of an Agreed Statement of Facts that clearly implicated him as a principal in the commission of the four offences. His former counsel, Marshall Sack, Q.C., assisted him throughout the proceedings. During the plea, he did not call any evidence to refute the Agreed Statement of Facts (Exhibit 6). The facts surrounding the offences are set out briefly below.

2. FACTS

[ 3 ] In late 2007, the Toronto Police Service launched Project CABRA , which was an investigation of a group of males who were trafficking cocaine at the multi-kilogram level in the Toronto area. The project concluded on July 31, 2008, with the arrest of more than 20 individuals, and the seizure of several kilograms of prohibited substances. This seizure included approximately 27 kilograms of cocaine, 9.5 kilograms of methamphetamine, and 2.3 kilograms of MDMA.

[ 4 ] During Project CABRA , police intercepted conversations between Mr. Oraha and two of Project CABRA ’s principal targets. In particular, five conversations intercepted between July 25, 2008, and July 28, 2008 revealed that Mr. Oraha was in possession of prohibited substances for the purpose of trafficking. On the intercepts, Mr. Oraha advised an individual named Mr. Nguyen that he was in contact with someone who had “three of them available”, and that he was willing to give them to Mr. Nguyen at “three-nine”. It is undisputed between the parties that this meant that Mr. Oraha was offering to sell three kilograms of cocaine at a price of $39,000 per kilogram. Mr. Oraha also used code words in those conversations, such as “paper” and “girlfriends”, which are known in the common drug parlance as money and cocaine, respectively.

[ 5 ] In a subsequent conversation, Mr. Nguyen told Mr. Oraha that “the tag is a little bit high”. The two of them negotiated a slightly lower price which was then satisfactory to Mr. Nguyen.

[ 6 ] On July 29, 2008, police arrested Mr. Oraha in the lobby of what was known to be the residence of Mr. Nguyen. Approximately three kilograms of cocaine were found in his possession. Police then searched Mr. Oraha’s residence pursuant to a search warrant and further seized three kilograms of methamphetamine and 1.3 kilograms of MDMA. Both of these substances were in tablet form and totalled approximately 14,453 pills. Police also seized a dismantled cocaine press, a large quantity of dextrose, an electronic scale, and multiple vacuum sealers.

3. THE POSITION OF THE CROWN

[ 7 ] The Crown submitted that Mr. Oraha should be sentenced to 10 years’ imprisonment. Mr. Bundy argued that the consideration of the mitigating factors in this case would reduce what would have been a 12 year sentence to 10 years’ imprisonment. The Crown submitted that the significant aggravating factors demand this length of sentence. The most important factor is the assertion that Mr. Oraha was involved in the drug trafficking trade “at a very high level and in a commercial capacity.”

[ 8 ] The Crown underlined the fact that the range for a first time offender who traffics in approximately three kilograms of cocaine is 6-8 years. The Crown also emphasized that the range for the possession of one kilogram of methamphetamine for the purpose of trafficking is 5-6 years. The Crown did not put forward a range for the possession of MDMA for the purpose of trafficking or for conspiracy to traffic cocaine.

4. THE POSITION OF THE DEFENCE

[ 9 ] The position of the Defence is that Mr. Oraha should be sentenced to six years’ imprisonment. This submission is based on the principle of parity: a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( s. 718.2 (b) of the Criminal Code , R.S.C. 1985, ch. C-46).

[ 10 ] In R. v. Nguyen , 2011 ONSC 4596 , Roberts J. sentenced Mr. Nguyen – Mr. Oraha’s customer – to six years’ imprisonment. He was found guilty of trafficking in methamphetamine (one kilogram), possession of MDMA (5.74 grams), and conspiracy to traffic in cocaine (three kilograms). The last conviction relates to the cocaine that was seized from Mr. Oraha in the residence of Mr. Nguyen.

5. ANALYSIS

(a) General Sentencing Principles

[ 11 ] The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions: s. 718 of the Code . The following objectives must be considered in forming a just sanction:

(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 acknowledgment of the harm done to victims and to the community

[ 12 ] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 of the Code .

[ 13 ] A sentence must also take into account any aggravating or mitigating circumstances relating to the offence or the offender, as well as the sentences imposed on similar offenders for similar offences committed in similar circumstances: ss. 718.2(a) and (b) of the Code .

[ 14 ] It is well established that the paramount principles of sentencing with respect to the commercial trafficking of illicit drugs are denunciation and general deterrence: see e.g. R. v. Colquhoun , [2002] O.J. No. 5412 (S.C.), at para. 12 ; R. v. Williams , [2010] O.J. No. 2971 (S.C.), at para. 21 ; R. v. Imoro , 2011 ONSC 1445 , at para. 33 . At the same time, it is incumbent upon me to consider all of the principles of sentencing contained in section 718 of the Criminal Code , including rehabilitation: see R. v. Woolcock , [2002] O.J. No. 4927 (C.A.), at para. 8 . Section 10 of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 ( CDSA ) adds the following:

10. (1) Without restricting the generality of the Criminal Code , the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation , and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community. [Emphasis added.]

[ 15 ] I must impose a sentence that appropriately denounces Mr. Oraha’s conduct and deters others from following suit. At the same time, the sentence must not ignore nor lose sight of Mr. Oraha’s potential for rehabilitation.

6. FIT SENTENCE

[ 51 ] In light of the sentencing ranges canvassed above, and all the principles of sentencing, including denunciation, deterrence, and the rehabilitation of the offender, I have concluded that a global sentence that is fit for Mr. Oraha is 9 years’ imprisonment.

[ 52 ] Mr. Oraha is sentenced to 9 years’ imprisonment. This sentence reflects the following aggravating factors:

1. The extremely large quantity of three types of drugs seized from Mr. Oraha’s possession;
2. Mr. Oraha’s position as a high-level commercial trafficker;
3. Mr. Oraha’s actions were solely motivated by greed;

[ 53 ] Although the range is 6-8 years for the single offence of possessing three kilograms of cocaine for the purpose of trafficking, the sentence here is one year higher than that range to reflect the convictions on all four offences, and the possession of the extremely large quantity of other drugs seized from Mr. Oraha’s possession.

[ 54 ] Therefore, the sentence for Mr. Oraha, on the possession of the three kilograms of cocaine for the purpose of trafficking is nine years. The other offences will receive sentences as if they were committed in isolation. Mr. Oraha is sentenced to 7 years’ imprisonment for the methamphetamine offence, 7 years’ imprisonment for the conspiracy to traffic cocaine offence, and 18 months’ imprisonment for the MDMA offence. All of these sentences shall run concurrently.

[ 55 ] In sentencing Mr. Oraha to a global sentence of 9 years’ imprisonment, I have given careful thought to the principle of rehabilitation and to the mitigating factors in this case.

[ 59 ] Mr. Oraha will be given four months of credit for pre-sentence custody.

[ 60 ] In addition, Mr. Oraha is also sentenced to a 10 year firearm prohibition from the day of his release from prison pursuant to s. 109 of the Code . A DNA order is also made pursuant to s. 487.051 of the Criminal Code . This was not opposed by the Defence.

Released: March 2, 2012

DATE: 20120302

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – Selwan Oraha

REASONS FOR SENTENCE Archibald J.