COURT FILE NO.: 1778/11

DATE: 2012/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Andrew Wiese, Counsel for the Crown

Crown

- and -

ROBERT DIXON and TERRY WESTOVER

Lori Ann Thomas, Counsel for Robert Dixon

John Lefurgey, Counsel for Terry Westover

Respondents

HEARD: July 5, 2012

The Honourable Mr. Justice D.J. Taliano

SENTENCING JUDGMENT

INTRODUCTION

[1] On June 18, 2012, I found Mr. Dixon and Mr. Westover, guilty of conspiracy to import cocaine between April 10, 2010 and June 5, 2010 contrary to s. 465(1) of the Criminal Code.

[2] Mr. Dixon was also found guilty of the following additional offences:

(i) conspiracy to launder the proceeds of crime between March 18, 2010 and July 7, 2010, contrary to s. 462.31 of the C.C. (Count 5 of the indictment);

(ii) conspiracy to traffic in cocaine between April 2 and April 26, 2010, contrary to s. 465(1)(c) of the C.C. (Count 6 of the indictment);

(iii) trafficking in cocaine between December 2, 2009 and May14, 2010 contrary to s. 5(1) of the Controlled Drug and Substances Act (“CDSA”) (Count 7 of the Indictment);

(iv) possession of cocaine between May 21, 2010 and June 6, 2010, for the purpose of trafficking, contrary to s. 5(2) of the CDSA (Count 8 of the Indictment);

(v) possession of cocaine on July 7, 2010 for the purpose of trafficking, contrary to s. 5(2) of the CDSA (Count 9 of the Indictment).

POSITIONS ON SENTENCE

[3] The Crown, represented by Mr. Wiese, takes the position that an appropriate global sentence for Dixon is in the range of 13 to 14 years after allowing credit for pre-trial custody of two years.

[4] The Crown’s position with respect to Westover is for a sentence in the range of 9 to 10 years after allowing credit for pre-trial custody of two years.

[5] Ms. Thomas on behalf of Dixon urges a global sentence in the range of 5 to 6 years less time served amounting to 3 years for a net sentence of 2 to 3 years.

[6] Mr. Lefurgey, on behalf of Westover, urges a sentence of 4 years less time served of 3 years for a net sentence of one year.

CIRCUMSTANCES OF THE OFFENCES

[7] I have reviewed the facts of this case in detail in my judgment dated June 18, 2012 and I will therefore only repeat those that are necessary to explain my reasons for sentence.

[8] Both Dixon and Westover were found guilty of conspiring to import significant quantities of cocaine into Canada by the use of an airplane. The Crown theory was that the plane in question was a Medivac plane and there was ample evidence to support the Crown’s position. At the very least, the evidence indicated that a pilot had been engaged, access to a plane had been arranged and, in Westover’s own words, he had spent in the vicinity of $40,000 and had gone to Central America on several occasions to advance the conspiracy. Westover was the leader of this conspiracy. When he encountered difficulties with someone called the “kid”, Dixon offered to intervene with his own contacts to resolve the problem. When Westover accepted his help, Dixon became a co-conspirator. In addition, Dixon proposed to invest $20,000 in this conspiracy, which according to Westover would have gotten Dixon 4 kilograms of cocaine of a total shipment of 30 kilograms.

[9] It is not surprising that this conspiracy did not get off the ground. The planning was amateurish and the likelihood of success was questionable. However, in a parallel conspiracy referred to as the Wooden Shoes Conspiracy, Dixon had access to 30 kilograms of cocaine that was being smuggled into Madrid on a weekly basis and he regarded Westover’s access to a plane and a pilot as the missing pieces he needed to further his criminal endeavours.

[10] By the time of their arrest, the conspiracy had been abandoned either because of logistical difficulties which would have been many or because any steps in furtherance of the conspiracy had floundered on the shoals that any sensible person could have foreseen and predicted. However, the gravity of what they were conspiring to accomplish cannot be underestimated. Access to a weekly supply of so much cocaine and the distribution of this evil product in Canada or, for that matter, any other country would have had devastating consequences for society and law enforcement agencies.

[11] Dixon was also found guilty of conspiring to launder the proceeds of crime that were to be generated by the Wooden Shoes Conspiracy. In this conspiracy, Dixon was brokering the sale of cocaine which had been sent to Madrid, to a person who was based in the Netherlands. The sale was to take place in Madrid and Dixon had offered, for a fee of 15%, to launder the sale proceeds on behalf of the supplier in Columbia. His offer was accepted. The sale never took place because the buyer got cold feet about accepting delivery in Madrid and wanted the product sent to the Netherlands. As a result, the deal died at least insofar as Dixon was concerned.

[12] Count 6 involved Dixon conspiring with a person named Antonio Gallo to traffic in cocaine at a time when supply of the product had been interrupted by a major bust at the Pearson Airport. The two men agreed to buy and share product to keep their respective customers happy.

[13] Count 7 of the indictment involved 10 separate trafficking transactions in significant quantities of cocaine by Dixon, three of which were to an undercover officer.

[14] On Count 8, Dixon was found guilty of possession of a “whole one” for the purpose of trafficking, the term meaning a whole kilogram of cocaine.

[15] Count 9 (possession for the purpose) involved the finding of 14.4 grams of cocaine along with other drug-trafficking articles in Dixon’s apartment.

PERSONAL CIRCUMSTANCES OF THE OFFENDERS

[16] Dixon and Westover are good friends. They are also partners in crime. The wiretap interceptions indicate their close friendship and a willingness to help each other to further their criminal ventures in the drug trade. They were earning their living from their involvement in the drug business. They both shared a misguided aspiration to hit it big in the drug business and to be respected and admired by their criminal counterparts. They both have relationships with drug dealers in Central America and Europe and therefore they pose a threat to society greater than the ordinary street dealer in drugs.

[17] Dixon is 46 years of age. He has been twice married and has two children and grandchildren, one of whom was born while Dixon was in custody and whom he has never seen. He is supported by his family and they have grown closer as a result of his present difficulties. His mother has been particularly anguished by his involvement in these offences. As a result, it appears that Dixon has begun to realize how hurtful and irresponsible his behaviour has been to himself and his family. He is beginning to show remorse for his past conduct.

[18] He also has letters of support which were marked as exhibits and they describe a caring and considerate person. One letter contains the offer of an honest job when he is released from custody. Another letter expresses the view that Dixon is now committed to making a positive change in his life that will help him to lead a crime-free lifestyle. He has a dated criminal record which starts in 1983 and concludes in 2002. It should be noted that even though the offences set out in his record are dated, there are two entries for weapons offences. I mention this fact only in the context of a future weapons restriction.

[19] Terry Westover is 55 years of age and has also been twice married. He has lived both in Canada and United States and has worked in the ski industry and at various other occupations. At the time of his arrest, he was living in the basement apartment of a friend in Montreal and was trying to further some business ideas that were discussed on the wiretaps. Although he has a criminal record, it too is dated although the two offences noted are drug related.

DISCUSSION OF THE LAW

[20] Trafficking in cocaine is a serious crime. Importing cocaine is treated as being even more serious than trafficking because cocaine is not indigenous to Canada. It is an insidious drug that destroys lives. For that reason, the courts have held that the principles of denunciation and individual and general deterrence require substantial prison sentences for those who are caught trafficking or importing this substance.

[21] In R. v. Bajada, 2003 CanLII 15687 (ON CA), the Court of Appeal of this province observed that prison sentences of five to five and one-half years are appropriate for possession for the purpose of trafficking substantial amounts of cocaine following a guilty plea where the accused has no record. In Bajada, the court imposed a sentence of 6 years where the amount of cocaine involved was 500 grams and the accused had a related record.

[22] Before doing so, the court reviewed sentences that were imposed in other cases. For instance, in R. v. Finlay and Grelette, [1985] O.J. No. 2173 (C.A.), the court imposed a sentence of 6.5 years on an offender with one minor criminal offence 15 years earlier by reason of his position in the drug hierarchy which was close to the level of an importer.

[23] A sentence of approximately 7 years was imposed in R. v. Boughner, 2002 CanLII 44975 (ON CA) for possession of 66 grams of 74% pure cocaine where the offender had a record and had been involved in trafficking for the preceding 1.5 years.

[24] In R. v. Bertucci, 2002 CanLII 41779 (ON CA), the court endorsed a sentence of 7 years respecting 6 counts of trafficking during an overlapping period although the sentence was reduced to 6 years for other technical reasons.

[25] Although Dixon does not have a related record, his trafficking was in multi ounce quantities of coke and on one known occasion, in a whole kilogram amount.

[26] In R. v. Majnoon, 2009 ONCA 876, a sentence of 5 years was endorsed by the Court of Appeal in 2009. The facts in the Majnoon decision are similar. In that case, as in this case, the offender was involved in transporting significant amounts of cocaine, was involved in negotiating prices, and was trusted to deal with whole kilograms of the substance. He was part of a group that was highly commercialized and organized to transport cocaine by the kilogram and distribute it by the ounce. Like Dixon, Majnoon was neither at the top of the chain nor at the lowest end of the chain. Both offenders were experienced dealers.

[27] In determining a fit and appropriate sentence the court must take into account that Dixon’s record is dated. The court must also take into account Dixon’s expression of remorse and his resolve to put his criminal life-style behind him. It should also be noted that this will be Dixon’s first incarceration in a federal institution which the law dictates should be as short a period as possible to support his prospects for rehabilitation.

[28] Notwithstanding, the Crown seeks a sentence of 8 to 10 years for the trafficking offences because of the amounts in which Dixon was trafficking and the frequency of the transactions.

[29] With respect to Count 3 (the Medivac Conspiracy), this was a plan to import cocaine into Canada in large quantities. However, it was only a plan and not a particularly good one. It was not an attempt and it was not an importation.

[30] Counsel have produced cases indicating a range of penalties below 2 years in prison for couriers importing small quantities of cocaine. For instance in R. v. Hamilton and Mason, (2004) 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, the offenders were imprisoned for 20 months and 2 years less a day for importing 349 grams and 489 grams of cocaine.

[31] Other cases indicate penalties of approximately 3 years for importing cocaine in more significant amounts. For instance, in R. v. Madden, 2012 ONCA 247 and R. v. Jones, (2006) 2006 CanLII 28086 (ON CA), 81 O.R. (3d) 481, the offenders were sentenced to 3 years and 3 years and 4 months respectively for the importation of 770 grams and 849 grams of cocaine.

[32] As expected, larger amounts of cocaine approximating several kilograms have attracted longer prison terms. For instance, in R. v. Alleyne, 1998 CanLII 2116 (ON CA) and R. v. Syblis, 2001 CanLII 24127 (ON CA), the offenders were sentenced to 7 years and 4 months and 7 years respectively for the importation of 2.4 and 2.13 kilograms of cocaine. In R. v. Valentini, 1999 CanLII 1885 (ON CA), [1999] O.J. No. 251, several offenders were found guilty of importing 34 kilograms of cocaine and were given sentences of 12 years, 4 years and 18 months. Sentences in the teens have been imposed for the importation of much larger quantities of cocaine. In R. v. Malanca, (2007) 2007 ONCA 859, O.J. No. 4782, the Court of Appeal imposed a prison term of 19 years for conspiracy to import 270 kilograms of cocaine. In R. v. Frost, 2011 ONSC 6448, [2011] O.J. No. 4828, the offender received the equivalent of a 16 ½ year sentence for conspiracy to import 1,360 kilograms of cocaine. Clearly, the amount of cocaine involved heavily influences the length of sentence.

[33] The crown has submitted that the sentence for a conspiracy to import cocaine should be the same as the sentence that might be imposed for an attempt to do so. However, on this point I must respectfully disagree and I adopt the words of Chief Justice Phillips in R. v. Barot, [2007] EWCA Crim 1119 at para. 61, where he stated:

Where the court is satisfied that the conspiracy was likely to lead to an attempt and the attempt was likely to succeed it may be right to draw little difference between a conspiracy and an attempt. Where, however, the court is unable to be certain that the conspiracy would have been put into practice, or would have led to a successful attempt to murder, the sentence should be significantly lower than for an attempt.

[34] There are two ways at looking at the plan that Westover hatched and Dixon joined. First, as Mr. Lefurgey argued, the conspiracy could be viewed as being concocted by “bumbling idiots” that was so amateurish that the likelihood of an actual attempt to put it into play was improbable and if pursued would likely have failed. Mr. Lefurgey questioned how the co-conspirators would have been able to engineer the sending of a Medivac plane to a specific location in Central America and to transport the cocaine that was stored in Madrid to that location, and load the plane with a large shipment of illegal drugs without the rest of the crew or customs becoming aware of it. That might explain why this scheme was abandoned and never really had wings. This argument militates against treating the conspiracy as an attempt.

[35] On the other hand, the conspiracy could be viewed as a novel and bold idea with international implications, concocted by clever and experienced criminal minds that would have led to enormous profits if it had been successful. Success might also have required the corruption of other crew members. The impact on society by the importation of so much cocaine would certainly have been far reaching. The coconspirators had international contacts and with their experience and dedication to criminal activity, they might have been able to bring this conspiracy to fruition. Certainly these elements lend a scary air of reality to this grandiose scheme. For these reasons, the conspiracy must be treated for what it was at the time and that was a serious threat to whatever country that these men targeted.

[36] That being the case, the conspiracy must also attract a penalty that is less than one that might be imposed for an attempt to smuggle a comparable quantity of cocaine or the penalty that would be imposed for the actual importation of a comparable amount of cocaine. However, because of the large amount of cocaine that was involved in this conspiracy; because of the investment of time, money and effort in its planning; because of the potential for catastrophic amounts of cocaine being made available if success had been achieved, the conspiracy must receive a response from the court that adequately addresses the principles of denunciation as well as general and specific deterrence.

[37] In the conspiracy, Westover was pressing for a 30 kilogram shipment and this amount is an aggravating factor on his sentence. Dixon was looking to acquire only 4 of the 30 kilograms which suggests a lesser sentence for him.

[38] The disparity principle is also in play in this case. This seamless investigation, which involved the highly coordinated and thoroughly efficient work of several police services led to charges and convictions of many offenders. KaHong Seto was sentenced to 4 years for conspiracy to import. Simon Lipp was sentenced to 3.5 years for numerous drug offences that included conspiracy to export ecstasy. Joseph Gonzalez was given a conditional sentence for conspiracy to export. Krista Curtis was given 3 years for conspiracy to traffic in cocaine. The court has little additional information concerning these offenders.

[39] The Crown points out that most of these sentences were imposed following early guilty pleas. The Crown also argued that the disparity principle only applies to like offenders, committing like crimes in like circumstances. That being the case, the Crown submits that the sentences imposed on the offenders that I just mentioned are not appropriate for Dixon and Westover who did not plead and required a lengthy trial and costly preparations to ensure their convictions.

[40] In response, it should be noted that the defence did not unnecessarily delay the trial and confined their efforts to legitimate issues which were handled with dispatch and a high degree of efficiency and professionalism. Therefore, although the offenders are not entitled to any discount that a plea would have triggered, nor can they be penalized for requiring the Crown to prove the charges against them.

[41] The Crown however invokes the disparity principle insofar as Kenneth Wu is concerned. He was also a co-accused and received a sentence of 10 years for 14 counts that included trafficking in a variety of drugs and also included importing and exporting drugs to the United States. Dixon was one of Wu’s suppliers and therefore the Crown submits that Dixon should receive a greater sentence, although the Crown seeks a higher penalty for Dixon than was imposed on Seto, who was Dixon’s supplier.

[42] The defence counters that charges against Wu’s wife were withdrawn in return for his plea. In addition, Wu was regarded as a virtual drug store for illegal substances and had pled to 14 different counts.

[43] In determining fit and just sentences for these men, the court must be guided by the factors set out in s. 718, 718.1 and 718.2 of the Criminal Code. Section 718.1 is of particular importance in this case with respect to the conspiracy to import count. It provides that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Whatever the appropriate sentence is for Westover on this count, the sentence for Dixon must be lower because his, was a more minor role. Dixon was not the leader nor the architect of this conspiracy. Leadership and planning were provided by Westover. In addition, there is no evidence that Dixon actually advanced any money to the conspiracy as Westover did or that he “opened any doors” that he said he would open, whereas Westover went to Central America twice to further the conspiracy. Westover was planning to move 30 kilograms; Dixon was taking only 4 kilograms.

[44] The court must also have regard to the principle of totality. Simply put, it requires the court to properly calculate the sentence for each offence and if such sentence is ordered to be served consecutively, the court must determine whether the aggregate sentence is just and appropriate.

[45] The global sentences proposed by the Crown for Dixon of 16 years less two years for dead time and 12 years for Westover less two years for dead time are inordinately lengthy. In Dixon’s case, it would be a sentence that might reasonably be expected to crush any hope of rehabilitation and in both cases would violate s. 718.2(c) of the Criminal Code as being unduly long and harsh.

[46] I will now address the issue of pre-trial custody.

CREDIT FOR TIME SERVED

[47] Dixon and Westover have been in pre-trial custody for a period of two years. During that time, they have been housed at the Niagara Regional Detention Centre, which is designed for and used as a short term holding area. Conditions there for long term inmates have been described in several cases which were filed by counsel and the conditions are far from ideal. (See in particular, the judgment of Paisley J. in Canavan v. Feldman, 2004 CanLII 4787 (ON SC) at Tab 11, paras. 42 – 45 of the Defence Book of Authorities).

[48] Apparently, not much has changed since that judgment was written according to the affidavit of Westover which describes the conditions which currently prevail. Over-crowding continues to be an issue; accommodations for unique medical conditions are not available; fundamental recreation time which is minimal at best has been curtailed; a library does not exist; reading materials are not available; a loud TV tuned to the channel of choice of the most dominant inmate is the only entertainment. These and several other factors including personal security issues detailed in Westover’s affidavit, make long term incarceration in Niagara extremely onerous. The length of time the offenders have spent in pre-trial custody at the Niagara Detention Centre is not their fault. They have done nothing to delay their trial and accordingly their lengthy detention must of course factor into their sentence in a meaningful way.

[49] The conditions described in Westover’s affidavit, satisfy the criteria in s. 719(3.1) of the Criminal Code that give the court authority to give 1.5 days of credit for each day of pre-sentence custody served.

[50] Accordingly, I impose the following sentences:

[51] Mr. Dixon -- would you please stand:

(i) On Count 6 (Gallo Conspiracy), you are sentenced to one year in prison (the same term imposed on Gallo) which term is concurrent to the terms imposed on Counts 7, 8 and 9;

(ii) On each of Counts 7, 8 and 9, you are sentenced to 6 years in prison, less time served of 3 years; the effective sentence is, therefore, 3 years on each Count to be served concurrently;

(iii) On Count 3 (the Medivac Conspiracy), you are sentenced to 3 years in prison, which term is to run consecutively to the terms imposed on Counts 7, 8 and 9.

[52] Mr. Westover, you are sentenced to 5 years in prison on Count 3; you are entitled to credit for time served of 3 years; the effective sentence is, therefore, 2 years less one day.

[53] There are some housekeeping matters that have not been addressed such as a DNA order and a weapons prohibition. I will hear from counsel.

___________________________

Taliano J.

Released: July 16, 2012

COURT FILE NO.: 1778/11

DATE: 2012/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Crown

- and -

ROBERT DIXON and TERRY WESTOVER

Respondents

SENTENCING JUDGMENT

Taliano J.

Released: July 16, 2012