ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 69/10
DATE: 2012-03-09

BETWEEN:

HER MAJESTY THE QUEEN Crown
– and –
DINO GIAMMARCO and MATTHEW BURCHELL Defendants

M. Edward Graham, for the Crown

Robert Brooks for the Defendant Dino Giammarco
H. Kim Taylor, for the Defendant Matthew Burchell

HEARD: February 6, 2012

REASONS FOR SENTENCE

HOURIGAN J.

Circumstances of the Offences

1On November 18, 2011, the defendants Matthew Burchell and Dino Giammarco were found guilty of possession of heroin for the purpose of trafficking and were found not guilty of importation of heroin.

2On September 18, 2008 the R.C.M.P. in Milton, Ontario became aware through customs officials in Germany of a package of fireplace logs which contained suspected heroin. The package was addressed to Harold Macdella at 1026 Glendor Avenue, Unit 89 in Burlington, Ontario, L7A 4M7 (“Unit 89”).

3The package was seized by the R.C.M.P. Health Canada testing revealed that the substance was in fact heroin and had varying degrees of purity from 14 to 15%. The total weight of the heroin was 3,848 grams.

4On September 24, 2008 at 11:29 a.m. a controlled delivery of the package to Unit 89 was undertaken by Officer Kevin Gillan, acting undercover as a DHL courier. Officer Gillan testified that before he got to the door of Unit 89, a man approached him. The man asked him if there were any more packages and he advised that it was just the one package. He asked the man if his name was Harold and the man said “yes” and signed the waybill twice.

5The man who is signed for the package was Mr. Giammarco. The police later arrested him and he advised the police officers that he accepted the package for an individual named “Matt”.

6The next day there followed a series of texts between the police, posing as Mr. Giammarco, and Mr. Burchell regarding the pick up of the package by Mr. Burchell. Mr. Burchell attended in the vicinity of Unit 89 and was arrested.

Circumstances of the Offenders

(i) Matthew Burchell

7A pre-sentence report was prepared in contemplation of sentencing. Mr. Burchell is a 28 year old first time offender. He was born and raised by both parents in Oakville, and described a positive and supportive upbringing, which was supported by both parents and his sister. His parents separated in early 2008 and he resided with his father thereafter.

8Mr. Burchell attended and graduated from high school in Oakville and then successfully completed a two-year diploma program at Sheridan College in Travel and Tourism. He worked for three years in a hotel. In 2008, he began working full-time at the seafood store where his mother is employed. He has worked full-time at that store for the past three and a half years. He also works part-time for a catering company. In the future he would like to return to school to pursue a possible career as a personal trainer.

9The author of the report concluded that Mr. Burchell “appears to have no significant issues or particular needs that would indicate a risk of the offender committing a further criminal offence in the future”.

(ii) Dino Giammarco

10A pre-sentence report was also prepared with respect to Mr. Giammarco. Mr. Giammarco is 47 years old and is also a first time offender. He was raised in Niagara Falls, Ontario and his family was described as a close knit unit. Mr. Giammarco reported that he was teased and bullied at school at a young age. The report’s author concludes that this experience has hurt his self-esteem and self-confidence, and has contributed to his decision-making and coping mechanisms in adulthood.

11Mr. Giammarco completed grade 12 in Niagara Falls. He attended Niagara College for a three-year financial management course but did not complete the course. He also attended Ryerson College for Theatre but did not get his diploma. Mr. Giammarco completed a one year retraining course and received his Multi-Skilled Manufacturing Diploma. He worked full-time at Ford of Canada from 1997 until 2005 when he was placed on medical leave.

12In 1997, Mr. Giammarco was married and during the course of his marriage he and his wife experimented with marijuana and cocaine use. The couple separated in 2002. Shortly thereafter his best friend was killed in an auto accident and Mr. Giammarco fell into a depression. He started to drink and use drugs excessively and associated with a negative peer group. He entered into a new relationship which he described as physically and sexually abusive, as well as controlling. That relationship ended and the subject says that he has been sober since 2006.

13Mr. Giammarco’s siblings described him as a caring person who is gullible and easily influenced by others. A number of letters of reference were filed at the sentencing hearing from Mr. Giammarco’s family and friends, which attest to his good character and his devotion to his religion.

14The author of the pre-sentence report concluded that “the prognosis for his future conduct is excellent and it is highly unlikely this man will be involving himself with the law again. The offender is deemed a suitable candidate for community supervision.”

15A report from his psychiatrist, Dr. Karl Farcnik, was filed as part of the sentencing hearing. In his report Dr. Farcnik indicates that Mr. Giammarco has a history of recurrent depressive symptoms since the time of his childhood and has a long history of anxiety in conjunction with panic attacks. He suffers from obsessive compulsion behaviours and suffered post traumatic stress disorder after being severely beaten in 1992. Dr. Farcnik indicated that Mr. Giammarco presents with major depression, generalized anxiety disorder, post traumatic stress disorder, attention deficit/hyperactivity disorder and breathing related sleep disorder.

16Dr. Farcnik concludes that Mr. Giammarco has learned from his involvement in this incident and “will most likely be much more careful and vigilant in future situations and is more apt to err on the side of caution and say ‘no’”. He indicated that issues pertaining to Mr. Giammarco’s judgment will continue to be explored in therapy. He also concluded that incarceration would have “a significant destabilizing effect” on Mr. Giammarco. Dr. Farcnik believes that Mr. Giammarco’s psychiatric presentation has impacted on his overall functioning and has also contributed to problems with his judgment.

Positions of the Parties

(i) Position of Mr. Burchell

17Counsel for Mr. Burchell submits that his client is a different person now than he was at the time of the offence, as he has matured and taken responsibility for the circumstances in his life. Reliance is placed on Mr. Burchell’s very positive pre-sentence report which notes a solid work history and supportive family. In addition, counsel argues that his client has been significantly impacted by his restrictive bail conditions and that he should be granted a reduction of approximately twelve months as a consequence of those conditions. Counsel argues that his client did not know the nature of the drug or the quantity of the substance and that this lack of knowledge should be a mitigating factor. He also submits that his client was not close to the supply of the heroin and thus there should be more flexibility in sentencing. Counsel notes that his client has good prospects of rehabilitation given his performance under the rigorous bail conditions. Finally, he relies upon the assistance that his client provided to the police as a mitigating factor. Counsel submits that an appropriate sentence is at the upper end of the reformatory range.

(ii) Position of Mr. Giammarco

18Counsel for Mr. Giammarco submits that his client has no previous criminal record and is very unlikely to reoffend. He argues that his client should be given credit for his cooperation with the police and his long period on bail with restrictive conditions. Counsel for Mr. Giammarco submits that if it is accepted that Mr. Burchell’s level of responsibility is low, then his client’s level of responsibility is even lower. It is his position that a sentence of two years less a day served conditionally is appropriate. Counsel notes that Mr. Giammarco had a very positive pre-sentence report and argues that his client has significant talents but faces mental challenges. Reliance is placed on the report of Dr. Farcnik, which indicates that Mr. Giammarco has very poor judgment, but is not a risk to reoffend.

(iii) Position of the Crown

19With respect to Mr. Burchell, the Crown concedes that he received a positive pre-sentence report, has a supportive family, is employed and has no drug issues or addictions. The Crown also notes that Mr. Burchell has been under house arrest for three and a half years and that his experience has been positive. The Crown also acknowledges that Mr. Burchell cooperated with the police and that his cooperation led to the arrest of another individual. However, the Crown submits that given the large amount of heroin involved and the significant role played by Mr. Burchell that a sentence in the range of ten years is appropriate.

20With respect to Mr. Giammarco, the Crown concedes that he too received is a very positive pre-sentence report and that he has strong family support. The Crown also notes his mental health issues and the fact that he has overcome addictions. Further, the Crown acknowledges that Mr. Giammarco played a lesser role in the transaction and that he has served his three and half years on bail without incident. However, the Crown notes that Mr. Giammarco did sign for the package using a fake name, that his motivation was to be paid and that he agreed in advance to take on this role, which was not insignificant.

21The Crown submits that a sentence for Mr. Giammarco in the range of eight to ten years is appropriate given his lesser role and given the fact that he did not cooperate with the police to the same extent as Mr. Burchell.

Analysis

(i) Credit for Stringent Bail Conditions

22In R. v. Downes , 2006 3957 (Ont. C. A.), the court ruled that time spent on stringent pre-sentence bail conditions, especially house arrest, is a relevant mitigating factor. As such, a sentencing judge must consider the time spent on bail under house arrest in determining the length of sentence and the failure to do so is an error in principle. The court also makes clear that the amount of credit to be given is within the discretion of the sentencing judge and that there is no formula that the judge is required to apply. The amount of credit will depend upon a number of factors, including the length of time spent on bail under house arrest, the stringency of the conditions, the impact on the offender’s liberty, and the ability of the offender to carry on normal relationships, employment and activities.

23I accept that both Mr. Burchell and Mr. Giammarco have been under stringent bail conditions since September of 2008 amounting to house arrest. These conditions have had an adverse impact on the offenders’ liberty and have negatively impacted their relationships, employment and activities. Mr. Burchell has had to reside with his father. He has not been permitted to possess a cell phone or pager and the conditions have limited his ability to socialize. Mr Giammarco has not been able to attend the residence of his girlfriend and that has impacted on his relationship with her.

24In the circumstances, I find that the stringent bail conditions are a mitigating factor and that both offenders are entitled to a reduction to their respective sentences of six months.

(ii) Knowledge of the Substance

25Both defence counsel placed a great deal of emphasis on the fact that their clients did not know the precise nature or quantity of the illegal substance. They rely on their clients’ lack of knowledge to distinguish this case from the circumstances of other cases where penitentiary sentences were imposed (e.g. R. v. Pimentel , [2005] O.J. No. 5780 (Ont. S.C.J.) ).

26They also rely upon the statement made by Justice Hill in Pimentel, citing the decision of the Ontario Court of Appeal in R. v. Sagoe , [1998] O.J. No. 4721 (C.A.) , that the fact that the offender was knowledgeable that an illicit narcotic was possessed but did not know that the drug was heroin is a mitigating factor. The court in Sagoe accepted that where an offender is wilfully blind about the nature of the drug that is a mitigating factor.

27The law has developed since Sagoe . In R. v. Sidhu (2009), 2009 ONCA 81 , 94 O.R. (3d) 609 (C.A.) the Court of Appeal found that wilful blindness should not be considered a mitigating circumstance. The court held :

17The trial judge considered the respondent’s wilful blindness to be a mitigating circumstance. With respect, we disagree. As a matter of principle and policy, we ought not to be sending a message to would-be couriers that if they wear blinders, they will receive a lower sentence than if they actually learn the nature and quantity of the substance that they are importing. In assessing degrees of moral blameworthiness, we see no meaningful distinction between the two.

28The court did recognize that where an offender has taken reasonable steps to determine the nature of a drug and is duped by his co-conspirators, this will serve as a mitigating factor:

18In so concluding, we are not to be taken as departing from the principle enunciated by this court in R. v. H. (C.N.) 2002 7751 (ON CA) , (2002), 170 C.C.C. (3d) 253 – that where an offender takes reasonable steps to determine the nature of the drug and is duped by his co-conspirators, this will serve as a mitigating factor.

19That, however, is not this case. The respondent was wilfully blind to the nature and quantity of the substance he was importing. Having kept himself in the dark, he cannot rely on his lack of knowledge as a mitigating factor.

29In the case at bar the primary issue in my Reasons for Judgment was the issue of knowledge of the accused that the substance was heroin. Mr. Burchell admitted in a statement to the police that he thought the packaged contained anabolic steroids which he believed were illegal in Canada. That statement demonstrated actual knowledge. I further found that to the extent that Mr. Burchell did not have actual knowledge, he was wilfully blind regarding what was contained in the package. It was evident from his statement to the police that he made a choice to be deliberately ignorant regarding the contents of the boxes that were being delivered.

30With respect to Mr. Giammarco, I concluded that he made a choice to be deliberately ignorant regarding the contents of the box and found that there was ample evidence to support a finding of wilful blindness on his part. I also found that Mr. Giammarco was concerned and that is why he made an inquiry regarding whether there was anything in the package that would get him in trouble. Relying upon the decision of the Ontario Court of Appeal in R. v. Lagace, 2003 30886 (ON CA) , [2003] O.J. No. 4328 (Ont. C.A.), I concluded that the fact that he made a perfunctory inquiry of Mr. Burchell did not mean that he was not wilfully blind.

31In neither the case of Mr Burchell or Mr. Giammarco is there evidence of any reasonable steps on the part of either offender to understand the nature of the substance. I find, therefore, that this is not a mitigating factor and that there should be no reduction in sentence on this basis.

(iii) Role of the Offenders

32The defendants rely on R. v. Chu , [1999] O.J. 5490 (Ont. S.C.J.) . In that case, the offender had no previous record regarding drugs and he played a minor role in the offence. He moved a package from one vehicle to another location. He was given a conditional sentence of two years less a day.

33Defence counsel argue that their clients played only minor roles in the transaction and that the limited nature of their involvement is a mitigating factor.

34The Crown disagrees with the characterization of Mr. Burchell’s role as being on the periphery. The Crown notes that he obtained the address for the delivery of the package, recruited Mr. Giammarco and was to obtain the box next. He also submits that Mr. Giammarco was looking to Mr. Burchell for directions and that there was a clear degree of planning involved. The Crown concedes that Mr. Burchell is not the directing mind but submits that he played a significant role.

35In my view, the relatively minor role played by Mr. Giammarco is a mitigating factor. However, I do not accept this argument on behalf of Mr. Burchell. I agree with the submission of the Crown that is clear on the evidence that Mr. Burchell played a significant role and that therefore his level of involvement in the transaction is not a mitigating factor for him.

(iv) Credit for Assistance to the Authorities

36Counsel for both offenders submit that their clients should receive credit for the assistance provided to the police.

37The Crown quite properly acknowledges that cooperation with the police is a mitigating factor (see R. v. C.N.H. , 2002 7751 (ON CA) , [2002] O.J. No. 4918 (Ont. C.A.)). The Crown also concedes that Mr. Burchell provided assistance but argues that the assistance of Mr. Giammarco was not significant. He submits that essentially all that Mr. Giammarco did was to assert that he did not know anything and blamed everything on “Matt”. Thus, he argues that it is difficult to give any credit for the information provided.

38I am satisfied that both offenders provided valuable assistance to the police. The information supplied by Mr. Giammarco led to the arrest of Mr. Burchell and the information supplied by Mr. Burchell led to the arrest of Mr. Brown.

39The Crown argues that the credit for this cooperation should be discounted because the offenders did not enter a guilty plea. He stated that he could not find any reported cases where the court weighed the issue of cooperation where there had been no guilty plea.

40I agree with the submission made by counsel for Mr. Burchell that even if his client pleaded guilty to possession for the purpose of trafficking, there would still have been a trial on the importation charge. Moreover, while I accept that in most instances that police cooperation will be analyzed in the context of a guilty plea, I do not find that a guilty plea is a prerequisite in order for cooperation to be considered a mitigating factor. In a case such as this where the assistance proffered by the offender provides tangible assistance to the police, and where the offenders are subject potentially to reprisal, there is no policy reason why the benefit that the offender would otherwise receive as a result of their cooperation should be eviscerated simply by reason of the fact that he or she chose not to plead guilty.

41I conclude that for both offenders their assistance provided to the authorities is a relevant mitigating factor which I should take into consideration,

(v) Case Law

42In considering the relevant case law regard should be had to the comments from the English Court of Appeal in R. v. Leach , [1995] E.W.J. No. 2803 (C.A.) about the nature of heroin as follows:

“The effect of all those cases taken together is conveniently summarized in Thomas on Sentencing , Vol. 2 at p. 25602:

“Supplying heroin, morphine, etc., it goes without saying that the sentence will largely depend on the degree of involvement, the amount of trafficking and the value of the drugs being handled. It is seldom that a sentence of less than five years will be justified and the nearer the source of supply the defendant is shown to be, the heavier will be the sentence. There may well be cases where sentences similar to those appropriate to large scale importers may be necessary. It is, however, unhappily seldom that those big fish amongst the suppliers get caught.”

43Similarly in Sidhu , which involved an importing conviction and is therefore distinguishable from the present case, the court described heroin (at paragraph 12) as “the most pernicious of hard drugs - - it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a ‘despicable crime’ and that one that ‘tears the very fabric of our society’.”

44The cases relied upon by defence counsel for their submission that an appropriate sentence is less than two years are all distinguishable on their facts. In the vast majority of cases the amount of heroin involved is much less than the almost four kilograms in the instant case.

45In R. v. Ly, (1997), 1997 2983 (ON CA) , 32 O.R. (3d) 392 (C.A.) the appellants were convicted on a single charge of possession of heroin for the purpose of trafficking and were sentenced to two years less a day. Defence counsel notes that in that case the appellants knew the nature of the substance. The sentence was upheld on appeal. Counsel for Mr. Burchell admits that in that case the court was dealing with lesser amounts of heroin in this case, although the precise amount is not apparent to me from the reported decision.

46In R. v. Kelsy , [2008] O.J. No. 3879 (S.C.J.) , the offender was found guilty of possession of a prohibited firearm, careless storage of a firearm, careless storage of ammunition, possession of a loaded prohibited firearm, possession of heroin for the purpose of trafficking and simple possession of heroin. The Crown sought a global sentence of five and a half to six years for all offences. The involvement of the offender was very limited in time. Specifically, the actus reus of the offence centred on one morning where she removed drugs and a gun from an apartment. She was on bail for three years on house arrest. Ultimately, she was sentenced to two years less a day. The sentencing judge emphasised the lack of a criminal record, the amount of time spent on bail, the efforts that the offender made to rehabilitate herself and the pain of separation that the offender and her daughter would suffer from the sentence imposed. The sentencing judge also recognized that in imposing the sentence it was at the very lowest end of the range for that combination of offences. I note that the amount of heroin involved was only 34.4 grams.

47In R. v. Taromi 2010 ONCJ 304 , the offender was convicted of two counts of trafficking in heroin and two counts of possession of the proceeds of crime resulting from those sales. The court found that an appropriate sentence was two years less a day. However, as counsel for Mr. Burchell notes, in that case the court found that the offender was under considerable pressure to participate in the offences. In addition, the offender was also addicted to heroin.

48In R. v. Pham , [2004] O.J. No. 1858 , after a guilty plea for possession of heroin for the purposes of trafficking where the offender was knowledgeable about the nature of the substance the sentencing judge found that a fit sentence was three years. Counsel for Mr. Burchell acknowledges that the amount of heroin involved was considerably less than the amount in this case. The total weight of the drugs was 5.49 grams of heroin and 2.71 grams of crack cocaine.

49In R. v. Fortune , 2011 ONCJ 459 , the offender was found guilty of possession of heroin for the purpose of trafficking and possession of proceeds of crime less than $5,000. The offender was 21 years of age and had no prior record and was in possession of 4.4 grams of heroin. He was sentenced to two years less one day.

50In R. v. Paper , 2010 ONCJ 88 , the offender pled guilty to eight counts of possession for the purpose of trafficking. The accused was in the possession of methamphetamine, 300 Oxycontin, codeine and morphine pills, as well as 36 grams of ketamine, and 2.5 litres of GHB, both of which could be used as “date rape” drugs. He also possessed 330 ecstasy pills, 300 tabs of LSD, marijuana and Valium, along with drug paraphernalia. He was sentenced to 23 months incarceration and two years probation. This was not a heroin case.

51The Crown disagrees with the submission made by Mr. Burchell’s counsel that a sentence in the upper reformatory range is appropriate, and submits that the Ontario Court of Appeal has made clear that a significant penitentiary sentence is appropriate in cases involving large amounts of heroin. The Crown relies upon the following cases.

52R. v. Nguyen , 1996 2487 (ON CA) , [1996] O.J. No. 2593 (Ont. C.A.) was a Crown appeal of sentence where two offenders had pleaded guilty to two counts of trafficking on heroin and one count of conspiracy to traffic heroin. The offenders had sold a pound of heroin to an undercover officer. The offenders received a sentence of 4 ½ years and 3 ½ years respectively. The Court of Appeal raised the sentences to eight and a half years and six years, and noted with respect to the lower sentence that the offender was a first time offender who came from a difficult background and played a less significant role in the offences. That offender also was doing well in the penitentiary and was making considerable strides towards rehabilitation. The court noted that but for those positive features, they would have imposed an even longer penitentiary term.

53In R. v. Phu , [1999] O.J. No. 5733 (Ont. S.C.J.) , aff’d [2001] O.J. No. 5534 (Ont. C.A.) the offender was sentenced on a charge of trafficking in heroin and was sentenced to 14 years in prison. In that case, the accused had possession of 2.54 kilograms of heroin.

54In R. v. Chan , 2003 52165 (ON CA) , [2003] O.J. No. 3233 (Ont. C.A.), the offender appealed a sentence of ten years imprisonment for possession of heroin for the purpose of trafficking. This case also involved a controlled delivery. The court concluded that taking into account the quantity of heroin and the trial judge’s finding that the appellant was integrally involved in the transaction, the sentence of ten years imprisonment was not demonstrably unfit. In that case, the intercepted packaged contained nine blocks of heroin, weighing over 6 kilograms, with an estimated street value in excess of $2 million.

Fit Sentence

55The sentences proposed by defence counsel do not adequately reflect the serious nature of the crime committed, including the large amount of heroin involved. In my view, a case such as this involving over 3.5 kilograms of heroin, requires a substantial penitentiary sentence.

56I find that a fit sentence for Mr. Burchell, taking into account his stringent bail conditions, his cooperation with the police, his positive pre-sentence report, the fact that he is a first time offender, his strong family support and solid work history, along with all of the other factors, is six (6) years incarceration and I sentence Mr. Burchell accordingly.

57I find that find that a fit sentence for Mr. Giammarco, taking into account his stringent bail conditions, his cooperation with the police, his minor role in the transaction, his positive pre-sentence report, the fact that he is a first time offender, his strong family support and solid work history , along with all of the other factors is five (5) years incarceration and I sentence Mr. Giammarco accordingly.