ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-500000035
DATE: 20120524
B E T W E E N :
HER MAJESTY THE QUEEN – and – AKEEM DEHANEY
E. Pancer and M. Passeri , for the Crown
M. Owah , for the Accused
HEARD: May 12, 2012
M. DAMBROT J. :
[ 1 ] Akeem Dehaney was one of 82 persons arrested at the culmination of Project Fusion, a police investigation which focussed on two criminal organizations engaged in the distribution of drugs, and on persons who supplied drugs and firearms to those organizations. The investigation included the judicially-authorized interception of private communications and the execution of search warrants.
[ 2 ] Mr. Dehaney was tried by me, without a jury, on seven counts in an indictment in relation to this matter, and was found guilty of the following five counts:
Trafficked in cocaine between January 7 and April 1, 2009 contrary to s. 5(1) of the Controlled Drugs and Substances Act ;
Attempted to possess a firearm knowing that he was not a holder of a licence or registration certificate between January 7 and April 1, 2009 contrary to s. 91(1) and s. 463 of the Criminal Code ;
Possessed a loaded prohibited or restricted firearm without being a holder of a licence or registration certificate on or about March 13, 2009 contrary to s. 95(1) of the Criminal Code ;
Possessed cocaine for the purpose of trafficking on March 15, 2009 contrary to s. 5(2) of the Controlled Drugs and Substances Act ; and
Possessed property obtained from the commission of an indictable offence on March 15, 2009 contrary to s. 355 (b) of the Criminal Code .
The Facts
[ 3 ] The following is a brief outline of the facts as I found them. A full account of the facts may be found in my reasons for judgment (see 2012 ONSC 1387 , [2012] O.J. No. 1545 ).
[ 4 ] Hubert Green was the leader of a criminal organization. He was engaged in the trafficking of crack cocaine at and beyond the kilogram level as part of a well-entrenched drug trafficking network. The organization also included mid-level and street-level distributors, who were overseen by Green. Green possessed firearms and provided them to members of the organization.
[ 5 ] In a series of telephone calls beginning on January 22, 2009 and ending on March 13, 2009, the offender negotiated the purchase of crack cocaine from Hubert Green on seven occasions. The quantity of drugs being purchased by the offender ranged from an eighth of an ounce to an ounce – wholesale quantities clearly being purchased for the purpose of reselling at the retail level. While the price the offender was paying was not always clear, in general he was paying about $800 for a half ounce, and $400 for a quarter ounce.
[ 6 ] On March 15, 2009, members of the Toronto Police Service Drug Squad arrested the offender near the corner of Lawrence Avenue East and Kingston Road. He had a 3.5 gram ball of crack cocaine in his possession, tightly wrapped in plastic, as well as a disguised digital scale, two cell phones, and $100 in twenty dollar bills which I found to be the proceeds of crack cocaine trafficking.
[ 7 ] With respect to the firearms offences, in telephone calls to Green intercepted on January 27, 2009 and January 31, 2009, the offender made efforts to purchase a Baby Desert Eagle or some other compact or small caliber higher quality firearm for a price of $2,500 to $3,000. Green in turn attempted to obtain the gun from Lisa Parmanand, a firearms importer and distributor with whom he had frequent dealings. Parmanand sought to purchase firearms in Atlanta, Georgia and import them into Ontario. For reasons that need not be recounted, the guns never arrived. It is sufficient to say that on April 9, 2009, American agents executed a search warrant at a residence in Atlanta, and seized guns and ammunition that had been purchased for Parmanand.
[ 8 ] Sometime in early March 2009, either while waiting for a gun from Green, or after giving up on obtaining a gun from him, the offender borrowed an illegal firearm and ammunition from one Sterling, and used it for some unstated, but clearly crime-related purpose.
The Offender
[ 9 ] The offender is 23 years of age. He was born in Jamaica, where he was raised by his grandmother and other relatives after his mother left for Canada to seek employment when he was three. When the offender was twelve years old, he came to Canada with his three siblings to join his mother. His mother was in a stable relationship, and her partner was a good role model for the offender.
[ 10 ] The offender was exposed to negative influences in his neighbourhood during his adolescence, and was expelled from high school. He subsequently attended another school for grade 12. Although his marks were adequate, he failed to graduate because he was a few credits short. He has no significant employment history. While his release conditions on these charges, which included house arrest, limited his employment prospects, the offender made no effort to procure employment or educational activities that might have justified a variation of those bail conditions. Nor did he attempt to upgrade his education during this period of time.
[ 11 ] The offender was closely associated with a criminal organization that has accurately been described as a well-entrenched drug trafficking network, and that engaged in the trafficking of crack cocaine at and beyond the kilogram level, all the way down to the street level, and that also used and distributed firearms. In particular, the offender was associated with Green, who was the leader of the organization.
[ 12 ] The offender also has a minor criminal record. He has twice been placed on probation, and supervised by a probation officer, once as a youth, and once as an adult. The author of his pre-sentence report considered the offender’s response to community supervision to be unsatisfactory, and did not consider him to be a suitable candidate for further community supervision.
The submissions
[ 13 ] Crown counsel seeks a sentence of imprisonment for seven to nine years. The offender argues that a three year sentence would be sufficient, less some credit for his two years and eight months of house arrest.
Analysis
[ 14 ] The predominant considerations in sentencing the offender for this combination of firearms offences and trafficking in crack cocaine must emphasize denunciation and deterrence. Enough has been said in justification of this approach to obviate the need to justify it again in these reasons.
[ 15 ] In addition, there are many aggravating factors that must be taken into account:
a) while the trafficking in crack cocaine engaged in by the offender was relatively low level, it was clearly commercial, persistent and extensive, and constituted his sole means of support;
b) the offender was clearly feeding, and exploiting the addiction of some of his customers;
c) the offender conducted his trafficking in close association with a dangerous organized drug-trafficking organization, and in particular, with its leader;
d) the offences involve the combination of drugs and firearms (see R. v. Manning , [2007] O.J. No. 1205 (S.C.J.) at para. 16 );
e) the offender was persistent in his quest for a firearm;
f) the offender lacks remorse;
g) the offender has an unmotivated educational background and a poor employment history;
h) the gun he possessed was not seized, and presumably remains a danger to the community; and
i) the offender is a poor candidate for community supervision.
[ 16 ] There are, however, some mitigating circumstances:
a) the offender is young;
b) the offender has a minor record; and
c) while the offender did not plead guilty, he made substantial factual admissions at trial that considerably shortened this proceeding.
[ 17 ] It is difficult to draw any range of sentence from the cases, given the unique circumstances of this offence, but some guidance can be obtained.
[ 18 ] In R. v. Woodstock , [2002] O.J. No. 4927 (C.A.) , the Court of Appeal emphasized the harm done to individuals and society by the selling of crack cocaine, warranting emphasis on denunciation and deterrence, without losing sight of the other considerations in s. 718 of the Criminal Code , including rehabilitation (para. 8), and identified the range of sentence for trafficking in small quantities of crack cocaine as six months to two years less a day (para. 15).
[ 19 ] With respect to the firearms offences, I simply note that the offence in count seven, possessing a loaded prohibited firearm or restricted firearm contrary to s. 95(1) of the Code carries a minimum punishment in the case of a first offence of imprisonment for a term of three years. In addition, I remind myself, although I will not repeat the words of Armstrong J.A. in R. v. Danvers (2005), 2005 30044 (ON CA) , 199 C.C.C. (3d) 490 at para. 77 (Ont. C.A.).
[ 20 ] In my view, the imposition of the three year minimum in s. 95(1) as the total sentence in this case would be to entirely discount the offender’s serious crack trafficking activity, and to ignore the aggravated nature of this offence resulting from the toxic combination of illegal guns and illegal drugs (see R. v. Dass , [2008] O.J. No. 1161 (S.C.J.) at paras. 32-33 ).
Disposition
[ 21 ] In my view, having regard to the applicable principles of sentence and the aggravating and mitigating circumstances, a fit sentence in this case is seven years. The seven years consist of a total of five years for the firearm offences, and a total of two years consecutive for the drug-related offences. More specifically, I allocate the sentence as follows, beginning with count 7 for ease of understanding:
Possessed a loaded prohibited or restricted firearm without being a holder of a licence or registration certificate on or about March 13, 2009 contrary to s. 95(1) of the Criminal Code – five years.
Attempted to possess a firearm knowing that he was not a holder of a licence or registration certificate between January 7 and April 1, 2009 contrary to s. 91(1) and s. 463 of the Criminal Code – three years concurrent to count 7.
Trafficked in cocaine between January 7 and April 1, 2009 contrary to s. 5(1) of the Controlled Drugs and Substances Act – two years consecutive to count 7.
Possessed cocaine for the purpose of trafficking on March 15, 2009 contrary to s. 5(2) of the Controlled Drugs and Substances Act – two years consecutive to count 7 but concurrent to count 4.
Possessed property obtained from the commission of an indictable offence on March 15, 2009 contrary to s. 355 (b) of the Criminal Code – six months consecutive to count 7 but concurrent to count 4.
[ 22 ] I note that given the nature and extent of the drug trafficking in this case the sentence could have been longer. In addition, consecutive sentences could have been imposed in relation to the two firearms offences. However I was constrained from imposing such sentences by the principle of totality.
[ 23 ] I note as well that in this case, I give no credit to the offender for the strict bail conditions imposed on him, including house arrest. I did this because the offender breached those conditions repeatedly.
[ 24 ] Finally, I impose a life-time weapons prohibition under s. 109 of the Criminal Code and a DNA order under s. 487.051.
M. Dambrot J.
RELEASED: May 24, 2012
COURT FILE NO.: 12-500000035
DATE: 20120524
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – AKEEM DEHANEY
REASONS FOR JUDGMENT
DAMBROT J.
RELEASED: May 24, 2012