ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR09-0696 (Brockville)
DATE: 20120127

BETWEEN:

HER MAJESTY THE QUEEN – and – FRANCO D’ONOFRIO

Pamela Larmondin and Veronique Rousseau, for the Public Prosecution Service Canada
Lawrence Greenspon and Eric Granger, for the Accused

SENTENCING DECISION

RATUSHNY J.

[ 1 ] The accused has been convicted after trial of possession for the purposes of trafficking of a total of 111.85 kilograms of cocaine.

[ 2 ] The principal issue on sentencing is one of quantum, namely, the appropriate penitentiary sentence for possession of such a very large amount of cocaine by an accused with a related record and whose involvement was as a courier.

1. The Facts

[ 3 ] The accused, a resident of Montreal, rented a car in Montreal on April 24, 2009 for a twenty-four hour period. Somewhere in between his early morning pick-up of the vehicle in Montreal and early evening on that same day when he was stopped by police as he was driving east in the direction of Montreal, he had collected 91 bricks of cocaine with a total weight of 111.85 kilograms or 246.07 pounds and a range of purity between 67% and 83%.

[ 4 ] He was stopped by police on Ontario’s highway 401 for some erratic driving of his rental vehicle. He was alone in the vehicle. The cocaine was found inside large garbage bags located in the rear seat foot-wells and trunk of the car. The cocaine bricks were individually wrapped in vacuum-sealed plastic bags and placed in large garbage bags that had bits of broccoli interspersed between the bricks.

[ 5 ] The value of the 91 bricks of cocaine was and is in the 3 to 5 million-dollar range. The potential street value of those bricks after they would have been broken up and common cutting agents added to increase volume was and is in the range of $45 to $70 per half gram, for a total potential street value of between approximately 10 ½ and 15 ½ million dollars.

[ 6 ] Found in the rental car at the time of the accused’s arrest were six cellular phones and personal identification including eleven credit cards.

[ 7 ] There is no evidence regarding any information able to be gleaned from the phones or the credit cards. Neither is there any evidence as to where the accused picked up the cocaine or to where he was taking it. The accused did not testify at trial and neither was a pre-sentence report prepared for sentencing.

[ 8 ] After a Gardiner hearing regarding the Crown’s assertion that the accused’s role with respect to the cocaine was as something more than a courier, a ruling was made that this aggravating fact had not been proved by the Crown beyond a reasonable doubt: R. v. Gardiner , 1982 30 (SCC) , [1982] 2 S.C.R. 368 (SCC). I found that beyond the traffic stop establishing the accused as having transported the cocaine along the corridor highway 401 in a rental car while being in possession of it for the purpose of trafficking along with six cellular phones and eleven credit cards in his possession, I was not satisfied to the requisite standard of proof beyond a reasonable doubt as to what his other involvement was with the cocaine.

2. The Accused

[ 9 ] The accused is 46 years of age and married with two children. His spouse is self-employed. He used to operate two businesses but has not done so since his arrest in 2009.

[ 10 ] He has a limited but significant prior criminal record with two entries, an “over 80” conviction in 1986 and a conviction in 1994 for a 1991 offence of possession for the purpose of trafficking of over 10 kilograms of cocaine. He received a sentence of 6 years incarceration for the 1994 conviction. His statutory release date for it was July 20, 2000.

[ 11 ] Defence counsel agrees there are no circumstances applicable to his client that engage any rehabilitative objectives for sentencing.

[ 12 ] The accused spent 68 days in pre-trial custody for which he is entitled, the Crown agrees, to a 2 for 1 credit amounting to 136 days.

[ 13 ] He has complied with bail conditions for a total of 938 days to today’s date. His bail conditions have included a house arrest condition allowing him to leave his place of residence only if in the presence of one of his two sureties. He has personally appeared as required at the Brockville Courthouse a total of some 20 times and reported to police each week in Montreal as required for a total of over 100 times.

3. Analysis

Sentencing Objectives

[ 14 ] The possession of cocaine in such a large quantity, the grave societal dangers it presents and the accused’s 6-year sentence in 1994 for the same offence, all combine to require a significant denunciatory and deterrent sentence, both in terms of general and specific deterrence.

[ 15 ] In R. v. Bajada , 2003 15687 (ON CA) , [2003] O.J. No. 721 (ONCA), at para. 12 , Weiler J. A. referred to the serious nature of cocaine and due in part to the existence of crack cocaine and intravenous cocaine users, that sentences for cocaine were approaching those imposed for heroin possession or trafficking.

[ 16 ] This is one of those rare cases where rehabilitation objectives are not applicable.

The Positions of Counsel

[ 17 ] The Crown requests a sentence of between 15 and 17 years incarceration less applicable credits for pre-sentence custody and compliance with bail.

[ 18 ] The defence submits the appropriate range before the deduction of credits is 8 to 12 years.

Sentencing Authorities

[ 19 ] Counsel have referred me to a number of cases in support of their respective sentencing positions, acknowledging that no case is completely analogous to the facts of this case and that there is no case they have been able to find involving the offence of possession for the purpose of trafficking of this large an amount of cocaine. Most cases involving larger amounts of cocaine are for an importation offence that is, as the Ontario Court of Appeal has observed in Bajada (para. 10 ), a more serious offence than that of possession for the purpose. Cases involving trafficking offences have also been cited.

[ 20 ] In addition to Bajada , the Crown has referred me to R. v. Bryan , 2011 ONCA 273 ; R. v. Ambrose , 1994 1378 (ON CA) , [1994] O.J. No. 1457 (ONCA); R. v. Powell , [2005] O.J. No. 2975 (ONCA) ; R.v. Joubert , 1993 1741 (BC CA) , [1993] B.C.J. No. 2385 (BCCA); R. v. Oddleifson , 2010 MBCA 44 ; R. v. Macias , [2003] O.J. No. 5564 (Ont. Sup Ct.) ; R. v. Sevillano , 1995 1609 (ON CA) , [1995] O.J. No. 1013 (ONCA); R. v. Malanca , 2007 ONCA 859 ; R. v. Couture , [2009] ONCJ 655; R. v. Battista , 2011 ONSC 6394 ; R. v. Farrell , 2009 ONCJ 655 .

[ 21 ] The Defence also relies on Bajada , as well as R. v. Nassar , [1988] A.J. No. 865 (Alta. C.A.) ; R. v. Gibson , 1996 816 (ON CA) , [1996] O.J. No. 176 (ONCA); R. v. Bertucci , 2002 41779 (ON CA) , [2002] O.J. No. 3870 (ONCA); R. v. Macias , [2003] O.J. No. 5564 (Ont. Sup Ct.) ; R. v. Jenner , 2005 MBCA 44 ; R. v. Deol , 2006 MBCA 39 ; R. v. Woo , 2007 MBCA 151 ; R. v. Harrison , 2008 ONCA 85 ; R. v. Goertzen, 2009 ONCJ 768 ; R. v. Yousif , 2010 ABPC 26 .

Possession for the Purpose

[ 22 ] For the offence of possession of cocaine for the purpose of trafficking, these authorities indicate sentences in the range of 4 to 10 years. At the lower end of the range is Deol (2006 Man. C.A., trial, 1 kg, related record, courier role, 4 year sentence), Macias (2003 Ont. S.C.J., trial, 1.3 kg, no record, positive PSR, 5 year sentence), Carroll (2010 ONCA, plea, 1 kg cocaine and 4 kg. hash and 8 kg marijuana and 2.4 g psilocybin, related record, 5 ½ year sentence), Bajada (2003 ONCA, plea, ½ kg, four related convictions, 6 year sentence), Harrison (2008 ONCA, trial, 35 kg, no record, 5 year sentence). At the higher end of the range is Gibson (1996 ONCA, trial, 20 oz, serious related record, 8 year sentence), Jenner (2005 Man. C.A., trial, 17 kg, no record, 8 year sentence), Woo (2007 Man. C.A., trial, multi-kg, non-drug related record, 8 year sentence), Goertzen (2009 O.C.J., plea, 49 kg and 720,000 ecstasy pills, no record, 8 year 5 month sentence), Oddleifson (2010 Man. C.A., trial, 46 bricks, unknown if a record, 10 year sentence).

[ 23 ] None of these sentences for possession for the purpose have involved a quantity of cocaine in the magnitude of the 111.85 kilograms in the present case.

[ 24 ] While I recognize the quantity of cocaine involved cannot be the singular driving force behind the sentence imposed, it is a significant aggravating fact to be considered in balancing all of the circumstances and achieving an appropriate reflection of the applicable sentencing objectives.

[ 25 ] Cocaine of this quantity and purity, as stated by the expert testifying at the sentencing hearing and referred to below, amounts to an international high-stakes illegal business venture by those interested in reaping its enormous profits at any cost and regardless of its victims. Cocaine of this amount and value exponentially increases all of the attendant risks and dangers, including a multitude of associated and violent crimes committed by a multitude of facilitators, couriers and dealers right down to the victimization of its users at the street level, who also go on to commit crimes and destroy lives. The criminal justice system in Canada deals on a daily basis with those who have been involved in this way in the drug trade, and with its victims.

[ 26 ] This amount of cocaine in the accused’s possession had the potential, therefore, to very seriously endanger and devastate the safety and well being of countless Canadians, all in the name of profit. It is for these reasons that I regard the quantity and purity of the cocaine as factors exerting a significant aggravating force in sentencing.

Importation

[ 27 ] Sentences for the arguably more serious offence of importation of cocaine have involved larger amounts of cocaine and have been in the range of 12 to 20 years: Couture (2009 O.C.J., plea, 120 kg, youthful first offender, 12 year sentence), Sevillano (1995 ONCA, trial, hundreds of kg, charges of conspiracy to import and traffic in cocaine, three accused with one “operating at a very high level in the conspiracy” and two drivers, all without a record, 17, 13 and 12 year sentences imposed respectively), Malanca (2007 ONCA, trial, 270 kg and 16 kg hash, no record, role of the “boss”, 19 year sentence imposed), Joubert (1993 BCCA, trial, 91.1 kg with a 30 million dollar street value, the key figure behind the importing scheme that had been successfully performed in at least four previous years, unknown if a record, 20 year sentence imposed).

[ 28 ] In Ambrose (1994 ONCA) involving the lesser quantity of 22 kilograms of cocaine, three accused were charged with conspiracy to import and traffic; they had a trial; they had no or virtually no records; potential profits were between one-half to one million dollars and the sentence imposed was 11 years for each of two of the accused and 13 years for the accused who was “the driving force” of the enterprise.

Trafficking

[ 29 ] For the related offence and again, arguably, the more serious offence of trafficking in cocaine or conspiracy to traffic in cocaine, more elevated sentences have also been imposed and I have been referred to cases imposing sentences between 10 and 13 years: Battista (2011 Ont. S.C.J., trial, 10 kg and possession of proceeds of crime of $43,550, a mid-level dealer who had a loaded handgun, dated and unrelated record, 10 year sentence imposed), Farrell (2011 Ont. S.C.J., trial, 16 kg cocaine and 12 kg ecstasy and some marijuana, unrelated record, 12 year sentence imposed), Powell (2005 ONCA, trial, at least 22 kg, related record and on bail pending appeal for drug trafficking offence at time of commission of this offence, 13 year sentence imposed).

[ 30 ] Again, none of these trafficking cases come close to involving the large quantity of cocaine in the present case.

Aggravating Circumstances

[ 31 ] Even though the accused has disclosed almost no personal information for the purposes of sentencing and all that he has disclosed has been set out above, there has been no expression of remorse. While the accused has a right to remain silent, the other facts speak for themselves.

[ 32 ] From what is known about the accused’s personal circumstances and those of the offence, it is reasonable to infer that his acquiring of and possession of the cocaine was a highly organized and deliberately planned activity, even though I do not conclude that he was anything more than a courier on the day of his arrest. This element of planning and deliberation spanning his rental of the vehicle, his acquisition of the cocaine and his transporting of it serves to aggravate sentence. It was not a spur of the moment or an impulsive course of conduct.

[ 33 ] Neither was it a course of conduct committed by a youthful offender.

[ 34 ] Another aggravating factor and very seriously so, is the accused’s prior record for the same offence involving multi-kilogram amounts of cocaine. Even though that offence date occurred 18 years prior to the present offence, the present offence involved a much greater quantity, at least 100 kilograms more of cocaine, and it was committed 9 years after his statutory release date for that prior offence.

[ 35 ] While the gap principle is certainly applicable ( R. v. Carroll , 2010 ONCA 378 , [2010] O.J. No. 2154 (ONCA); R. v. Nembhard , 2010 ONCA 420 , [2010] O.J. No. 2420 (ONCA)), in these circumstances it loses some of its mitigating force particularly in relation to the sentencing objective of specific deterrence and, in fact, turns the focus towards reinforcing the need for specific deterrence.

[ 36 ] The accused was in possession of over 10 kilograms of cocaine in 1991; he was sentenced to 6 years incarceration for that possession in 1994; his sentence expired in 2000; in 2009 he was undeterred and committed the same offence but this time with a much greater quantity of cocaine, knowing full well the risk of a high sentence of incarceration if caught.

[ 37 ] To put into some perspective the significance of the presence in Canada of 111.85 kilograms of cocaine, in Joubert , the British Columbia Court of Appeal commented that the 91.1 kilograms of cocaine that had been imported in 1988 in that case had been referred to by the trial judge as being “one of the largest scale importation schemes to come to the attention of the authorities in the recent past. The total seizures in any one year in all of Canada since 1983 have averaged approximately 180 kilograms.” (para. 2) While I acknowledge that we are now some 23 years later and I have no evidence of the present day significance of the amount possessed in 2009 by the accused on a Canada-wide basis as expressed in Joubert , it is, nonetheless, regarded at this time as being a very large amount.

[ 38 ] Expert evidence at the sentencing hearing from Detective Sergeant S. L. Woodman of the Ontario Provincial Police established the following facts regarding the trafficking of cocaine in Canada.

[ 39 ] The South American countries of Columbia, Bolivia and Peru are considered source countries of cocaine production and exportation, with Columbia remaining the primary processing and exportation point.

[ 40 ] Cocaine is commonly imported into Canada in a pressed brick form with each brick stamped with markings by producers to identify its source or quality.

[ 41 ] Packaging methods vary as the cocaine is moved down through the various trafficking levels beginning at the top of the distribution chain in the source countries, to the purchaser/importer, then to the couriers, distributors, and facilitators and finally, down to the gram level sold by street traffickers, usually in powder form.

[ 42 ] Cocaine is commonly sold in the kilo brick form at the higher level of the drug trafficking subculture and persons dealing above the street level prefer to purchase it in that more solid form rather than a powder form because of its perceived purer quality.

[ 43 ] A common courier method is to conceal the cocaine bricks within legitimate shipments, such as in boxes of produce that require ice to remain fresh and have the added benefit because of that ice of inhibiting x-ray detection of the secreted drugs in the shipment.

[ 44 ] Sergeant Woodman testified that sometimes purchasers will pick up their shipment themselves but that there could also be a relationship between a courier and purchaser such that the courier could pick up the shipment or there could be some pick-up arrangement involving both couriers and purchaser. He said a large component of the drug trade is the element of trust in and reliability of couriers.

[ 45 ] I find it reasonable to infer from this expert evidence that the cocaine the accused had in his vehicle was not that far away from its time of importation into Canada, given its plastic wrapped and stamped brick form, its high degree of purity and the discernible pieces of broccoli in the garbage bags holding the bricks.

[ 46 ] Another inference able to be drawn is that the accused was dealing with at least one high level individual in the trafficking hierarchy that he had to have been in contact with to be entrusted with this quantity, this purity and this value of cocaine. He was not the transport driver kind of courier who had no knowledge of his illegal shipment and neither was he a courier of gram level amounts to street traffickers. He had full knowledge and control of the cocaine and its amount at the time he was stopped by police and he had to have participated in some way in arranging for its placement in his rental vehicle. This places him as a courier with high-level connections to another person or persons in the drug trade and, as such, it is a further aggravating factor, drawing in as it does the high-level individuals or the directing minds in the enterprise as having connections to the accused.

[ 47 ] In arriving at these inferences, I acknowledge my ruling on the Gardiner hearing portion of the sentencing hearing, that the accused’s role was not proved to be any more than that of a courier. I do not treat him, by way of these inferences, in contradiction to that ruling as to his role. I sentence him on the basis of all of the evidence at trial and at sentencing. Rational inferences can be drawn from all the evidence provided that if any inference serves as an aggravating fact it must be proved beyond a reasonable doubt ( Gardiner ).

[ 48 ] I am satisfied beyond a reasonable doubt that the inferences referred to above of organization, planning, and high level connections by the accused in his courier role, are the only rational inferences that can be drawn from all of the evidence. In arriving at each of these inferences that amount to aggravating facts, I have applied the same trial standard for circumstantial evidence as set out by Charron, J. in R. v. Griffin , 2009 SCC 28 (SCC) , at para. 33 . The effect of these inferences is to connect the accused in his courier role to certain directing minds of the enterprise and as such, to make him a very essential and trusted courier in that particular drug trafficking scheme. As such, he was a courier, but something more than the “dupe” courier with the lesser degree of responsibility as referred to in Bajada at para. 8 .

[ 49 ] Finally and as reviewed above, the quantity, purity and consequent multi-million dollar value of the cocaine found in the accused’s possession, all serve as significant aggravating factors. They trigger the need for a strong emphasis on the sentencing objectives of denunciation and general and specific deterrence, in large part because of the great societal harm caused by the illegal presence of and trade in cocaine and particularly, the vast potential for the devastating effects able to be wrought by this quantity of cocaine in Canada.

Mitigating Circumstances

[ 50 ] There are also some mitigating circumstances to be considered. I agree the trial was shortened by defence counsel’s admissions, allowing nine witnesses to be released from testifying. In addition, the accused has complied with his bail conditions including a form of house arrest for the last 2 ½ years, there are no outstanding charges and the accused’s record is limited.

Conclusion

[ 51 ] In arriving at a sentence that adequately denounces and deters, I am of the view that a 15 years sentence is appropriate for the accused in all of his personal circumstances and those of the offence.

[ 52 ] It is a significant sentence that takes into account the higher of the sentencing ranges referred to above for the same offence. Because of the large quantity of cocaine, it also takes into account the range of sentences for the related but more serious offences of importation, conspiracy to traffic and trafficking.

[ 53 ] It is a significant sentence that, in my view, is required for this amount and value of cocaine, for this accused who planned and committed the offence with full knowledge of the risk at least because of his previous 6 year sentence and notwithstanding it was completed 9 years earlier, and who as a courier entrusted with the possession of this amount, value and kind of cocaine in brick form, had to have been involved with a person or persons with high level connections in this trafficking enterprise.

[ 54 ] Mr. D’Onofrio, please stand at this time.

[ 55 ] Your sentence is one of 15 years incarceration less a credit on a 2 for 1 basis for your pre-trial custody in the amount of 136 days.

[ 56 ] I also exercise my discretion according to R. v. Downes , 2006 3957 (ON CA) , [2006] O.J. No. 555 (ONCA), at para. 37 , and assign you an additional credit for the 938 days you have spent in compliance with bail conditions. I accept that your liberty, and rightfully so, has been restricted and controlled for that period of time. I do observe, however, as the Crown has pointed out, that you were not subject to strict house arrest for that period of time in that you were able to leave your residence for any reason provided you were in the presence of one of your two sureties. The credit I assign in those circumstances is approximately a 1/5 credit for the time of that bail period, amounting to 188 days, being just over 6 months of credit.

[ 57 ] Your warrant of committal is, therefore, to reflect the balance of your sentence after the deduction of those credits. The sentence on your warrant of committal is the period of time you have left to serve after the deduction of a total credit of 324 days, and it is a balance left to serve of 5161 days or, for your purposes in approximate terms, just over 14 years.

[ 58 ] There are other ancillary orders that follow. There is a firearms prohibition order made under s. 109 of the Criminal Code for your lifetime, prohibiting you from possessing any firearm, ammunition or any other item referred to in that section. There is also a DNA order, requiring you to submit to the taking of a bodily sample for the purposes of DNA analysis and data bank storage.

The Hon. Justice L. Ratushny

Released: January 27, 2012

COURT FILE NO.: CR09-0696 (Brockville)
DATE: 20120127

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – FRANCO D’ONOFRIO SENTENCING DECISION Ratushny J.

Released: January 27, 2012