SUPERIOR COURT OF JUSTICE
Court File No. CR-11-1469
HER MAJESTY THE QUEEN
v.
GEORGE GBOLAHAN AKINTUNDE
R E A S O N S F O R S E N T E N C E
BEFORE THE HONOURABLE JUSTICE BARNES
on August 16, 2013 at BRAMPTON, Ontario
APPEARANCES:
C. Afonso
Counsel for the Federal Crown
H.S. Saini
Counsel for G. Akintunde
SUPERIOR COURT OF JUSTICE
TABLE OF CONTENTS
WITNESS
Exam.
In-Ch.
Cr-
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E X H I B I T S
EXHIBIT NO. PAGE NO.
Reasons for Sentence at page 3
FRIDAY, AUGUST 16, 2013
R E A S O N S F O R S E N T E N C E
Barnes J. (Orally):
Mr. George Akintunde was convicted by a jury of importing heroin into Canada and two counts of possessing heroin for the purpose of trafficking.
The importation and related possession for the purpose counts involve some 398 grams of heroin. The Crown seeks a sentence of nine years concurrent on each count. The third count is for possession for the purpose. It relates to 281.5 grams of heroin found in Mr. Akintunde’s home. The Crown seeks a sentence of six years consecutive to the other sentences for a total of 15 years minus whatever credit Mr. Akintunde received for any dead time he spent in this case.
The Crown also seeks a DNA order, a s. 109 weapons prohibition for 10 years.
The defence seeks a global sentence of six years.
It is agreed that Mr. Akintunde should receive credit for 360 days of pre-trial custody.
A brief review of the facts, Mr. Akintunde contacted Kelvin Mekwunye who was described as either a friend or acquaintance. He told Kelvin Mekwunye that he and his spouse had started a clothing business. He explained that they had exceeded the number of clothing shipments that could be shipped to their address. Mr. Akintunde obtained Mr. Mekwunye’s consent to send a shipment to Mr. Mekwunye’s address.
On May 9, 2011, Mr. Akintunde informed Mr. Mekwunye that a shipment of clothing would be arriving at his address.
Based on a tip from authorities in the United Kingdom, in May 2009 the R.C.M.P. examined a package that had already been examined by the United Kingdom authorities. The package was a box that contained 398 grams of heroin concealed in four compartments located in the box. It was located on the four sides of the box, approximately 100 grams of heroin in each compartment. The box also contained some clothes and was addressed to a fictitious person, or a person who was not known, a Nancy Kelleman, at Mr. Mekwunye’s address, 45 Rotary Drive in Scarborough, Ontario. The contact phone number on the package was 416-319-1649 and it was registered to a fictitious person.
The heroin was removed by the police and replaced with a tracking device on May 9, 2011 and an undercover police officer posing as a male deliver person delivered the package to Mr. Kelvin Mekwunye. Mr. Kelvin Mekwunye then travelled to a plaza and delivered the package to Mr. George Akintunde.
Upon delivery of the package Mr. Akintunde and Mr. Mekwunye were arrested. The police executed a search warrant of Mr. Akintunde’s residence. In the residence they found several cell phones and several pieces of identification including a fictitious identification which was a Canadian citizenship card bearing Mr. Akintunde’s photograph but the name Alex Collins. The phone number which had been provided on the package was found in the home. A pink plastic bag containing small plastic baggies and a spoon were found in a barbeque at the home. The spoon tested positive for trace amounts of heroin. One gram of heroin was found in the plastic baggie. The total weight of the heroin found in a baggie was between 273 to 281.5 grams. A total of at least seven cell phones and four SIM cards were seized from the home.
The purity of the heroin was believed to be between 61 to 71 percent. Expert testimony indicated that a total weight of heroin, if sold at a tenth of a gram will be worth $201,000.00 Canadian, if sold at a gram level it would be worth $167,500.00 and, if sold at an ounce level it would be worth $84,000.00.
The facts supporting the 389 grams of heroin give rise to the offences of importation and possession for the purpose of trafficking. The importation offence was complete once the package entered Canada, the Canadian jurisdiction. The possession for the purpose offence was complete when the package came into Mr. Akintunde’s possession. Expert evidence indicated that the purpose of possessing 389 grams of heroin had to be for the purpose of trafficking.
The Crown seeks concurrent sentences on both offence.
The defence submits that the possession for the purpose offence should be stayed because the two offences arise from the same transaction, based on R. v. Kienapple, I agree. The possession for the purpose charge, as it relates to the 389 grams of heroin is stayed.
Mr. Akintunde has spent a total of 360 days in pre-trial custody. The defence seeks enhanced credit of 1.5:1 for the entire period. The Crown is opposed to enhanced credit for the entire period of the pre-trial custody but consents to enhanced credit for a portion of that period of time, which is 93 days. For reasons articulated below I agree with the Crown.
Section 719(3.1) of the Criminal Code permits a sentencing judge to give a maximum credit of 1.5:1 for each day spent in pre-trial custody if circumstances justify it. One of the circumstances that may justify such an enhancement includes evidence of ineligibility for admission of parole. See R. v. Summers, 2013 ONCA 147, 114 O.R. (3d) 641.
It is agreed that this circumstance applies to Mr. Akintunde, however, where the reasons for detaining the person in custody are stated on the record under subsection 515(9.1) or, the person was detained in custody under subsection 524(4) or (8) enhanced credit is unavailable. See s. 719(3.1).
Mr. Akintunde’s days in pre-trial custody consists of three distinct periods.
The period from his arrest to his first release on bail, 17 days.
The period from his re-arrest for breaching his bail and his second release, 266 days.
The period of time he spent in custody awaiting sentence after he was convicted, some 77 days.
Mr. Akintunde spent two days serving sentence for a conviction for failing to comply with his recognizance, that period is excluded from this calculation.
The defence submits that a s. 524 application was instituted but not commenced therefore the prohibition against giving enhanced credit for pre-trial custody captured by a s. 524 application does not apply.
The Crown argues that Mr. Akintunde does not get an exclusion from the s. 524 prohibition simply because he consented to a detention. I agree.
Mr. Akintunde shall receive enhanced credit for the 17-day period he spent in custody before he was released from custody and for the 78 he spent in custody awaiting sentence, a total of 95 days. The credit he shall receive is on a 1.5:1 which enhances a pre-trial credit for that period to 145.5 days. He shall receive no enhanced credit for the period captured by the s.524 application, which is 266 days. Credit for that period shall be on a 1:1 basis. Therefore, the total pre-trial credit Mr. Akintunde shall receive is 410.5 days, in effect 411 days.
The devastating impact of heroin as a drug is well documented and accepted. It destroys lives, wrecks havoc on society, breeds crime and violence, addiction, ill health, and leaves a trail of mayhem and destruction wherever its impacts are felt. This is so well documented that there is no need for further elaboration on this fact. See also R. v. Pimentel, [2004] O.J. No. 5780 ONSC and also R. v. Sherman, [2004] O.J. No. 5008 ONSC.
While there are general sentencing ranges for heroin offences, the particular circumstances of the offence and the offender, within the context of the sentencing principles enunciated under s. 718 sections of the Criminal Code is determinative of the fit sentence. However, it is well established in Canadian jurisprudence that a fit sentence for the importation of large amounts of heroin will often attract penitentiary sentences. The Ontario Court of Appeal in R. v. Sidhu, [2009] O.J. No. 325 at para. 14 states,
While we recognize that sentencing is not an exact science and that trial judges must retain the necessary flexibility to do justice in individual cases, as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range suggested by the Crown. To be clear, when we refer to “large amounts” of high grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties.
I have considered some mitigating factors in this case.
Mr. Akintunde has no criminal record.
He is married with two children, nine and five years old, and his partner is expecting a third child.
Mr. Akintunde will effectively be missing a significant portion of the development of his children. Mr. Akintunde has an undergraduate degree in psychology from his native Nigeria; he also has a college diploma.
Between 2003 to 2008 he worked in a field that provided rehabilitation programs for developmentally challenged persons.
From 2008 to 2013, he has been employed as a used salesman.
He has a family that is solely dependent on his income.
He helps support family in his native Nigeria.
He contributes regularly to an orphanage in his native homeland.
Mr. Akintunde executed a simple but in fact well-thought-out heroin importation plan. He approached Mr. Mekwunye and arranged a destination for the shipment. There is evidence obtained from text messages, seized from cell phones at his home, that he played an important role in the shipment process. There was also heroin found in his home, which is consistent with a finding that he was involved in an enterprise that involved importation, distribution and sale of heroin. The evidence would seem to indicate that while Mr. Akintunde may not have been at the top of the heroin importation and sale operation he was certainly not a mere courier; he was in fact an active planner and participant.
Expert evidence indicated that persons high up in the echelon of illicit drug activity avoid direct contact with the drugs involved and, in fact, it was the couriers who were the primary contact.
In this case, Mr. Akintunde played a significant role in recruiting Mr. Mekwunye. He not only recruited him -- and when I say recruited I use that word advisedly. On the facts the jury accepted and theory the Crown put forward, Mr. Akintunde duped Mr. Mekwunye in acting as a primary contact for the drugs. It is important to note that the drugs came in under a fictitious name with a phone number linked to a fictitious person.
I have noted that Mr. Mekwunye was a primary contact. Mr. Akintunde was responsible for the operation. Mr. Mekwunye took delivery of the package and then proceeded to deliver that package to Mr. Akintunde.
There is also evidence, as I have indicated, that was seized in his home, including the further amounts of heroin, which was for the purpose of trafficking, which all indicate that he was not a mere courier. He was either somewhere in the middle or closer to the middle of the operation. Some may argue it might have been closer to the top. But for sentencing purposes I shall classify him as being somewhere in the middle of the operation.
I have noted that the heroin involved was one of high purity, was a large amount, at least 670 grams.
The method of importation was misleadingly simple but in fact had a degree of sophistication. The drugs were concealed in compartments of boxes under the guise of importing clothing. I have noted that a false name was given as a consignee. A cell phone that was fictitious was given as a contact cell phone. The cell phone was in fact real but it was registered to a person who was found not to exist.
It is important to take into account the nature of the operation or the story that Mr. Akintunde provided to Mr. Mekwunye indicating that he was involved in a clothing business and that he had exceeded his quota in terms of receiving the packages.
We have had expert evidence about the thousands of dollars to be gained from such an enterprise.
I have already noted the obvious havoc these drugs have on individual lives and in society in general.
There were other factors that the Crown referred to in this case. With respect to other items that were found in his home, I have not focused on those items specifically because they didn’t seem to form part of the Crown’s theory during the trial.
Looking at applicable case law to provide me with some guidance, the case of R. v. Mostafalou, (October 21, 1992), Toronto, C11611 (Ont.C.A.) a nine-and-a-half years’ sentence was imposed in addition to six-and-a-half months’ of pre-trial custody. That sentence was upheld. It was for importing heroin. In R. v. Mensah, 2003 57419 (ON CA), [2003] 170 OAC, 244, leave of appeal to the Supreme Court was refused. The accused was convicted for importing 1.038 kilograms of heroin. Mr. Mensah received a global sentence of nine years less the twenty-and-a-half months of pre-trial custody. In R. v. Anaso, [2002] O.J. No. 4452 (Ont.C.A.). The accused was a courier. She imported 512 grams of heroin. She was sentenced to eight years in addition to two years of pre-trial custody. She had spent two years and four months in pre-trial custody. She received credit for that. In R. v. Sherman, 2004 25984 (ON CA), [2004] O.J. No. 65, Mr. Sherman imported 603 grams of heroin into Canada and after trial he was sentenced to 12 years. There is also the case of R. v. K.K., [2012] O.J. No. 1592, a case where there were some significant mitigating factors. K.K. pled guilty to importing 997 grams of heroin. The mitigating factors included born into a life of violence which included domestic violence, alcohol and cocaine addiction, a history of teenage pregnancies, some victimization, loss of her children to the state, multiple failed domestic relationships and a failed attempt to address her addiction issues. There were some delays in that case in preparing a Gladue report; K.K. was aboriginal. She was remorseful for her actions. She had recently upgraded her educational qualifications. She had two minor prior convictions for shoplifting. Hill J. noted that she was a first time offender with several mitigating factors, and he imposed a six year sentence. In R. v. Osei, [2002] O.J. No. 5601, Mr. Osei pled guilty to importing 911 grams of heroin. He had no criminal record. He was remorseful. He was only a courier. Citing mitigating factors, Justice Hill sentenced Mr. Osei to six years and he was credited two years pre-sentence custody. In R. v. Katz, 2003 17492 (ON CA), [2003] O.J. No. 3876, Ms. Katz pled guilty. She had imported some two kilos of heroin. She spent eight months in pre-trial custody. She suffered from multiple sclerosis. She had difficulty obtaining medication in custody. In view of these mitigating factors, Justice Durno imposed seven years sentence. That was pre legislative amendments, and he credited Ms. Katz 3:1 credit for pre-sentence custody.
When it comes to the possession for the purpose offence, I found the decision of Bains and Pannu to be helpful, 2013 ONSC 1583. Messrs Bains and Pannu were convicted, after trial, for possessing one kilogram of heroin for the purpose of trafficking. Both accused had no criminal history and they came from good family backgrounds. Dawson J. imposed a sentence of 12 years. At paragraph 28 he referred to the comment of Charron J.A. in Shahnawaz (2000), 2000 16973 (ON CA), 51 O.R. (3d) 29, (C.A.). The quotation was that the appropriate range of offences involving similar amounts of heroin was between 9 to 12 years.
In Shahnawaz the amount involved was 650 grams of heroin, however, it involved trafficking. The accused had spent some seven months in custody. He had also spent some time serving a conditional sentence which was imposed at trial. These were important considerations for the court. There was some evidence that he had been tortured in Afghanistan and suffered post traumatic stress disorder. This, however, this fact did not appear to be a significant factor in the appellate court’s decision as the Court concluded that there was no connection between that disorder and the crime. The conditional sentence was set aside and a sentence of six months was imposed.
In the present case, I must make decision as to whether or not the sentences to be imposed by the court shall be concurrent or consecutive.
The importation and possession for the purpose offences are distinct offences. The crime is a serious one. The accused’s role, as I’ve noted, is beyond that of mere courier, denunciation and general deterrence are paramount principles. I therefore conclude that a consecutive sentence will satisfy the principles of sentencing set out in s. 718 of the Criminal Code with denunciation and general deterrence as paramount.
As I have noted, despite the ranges that I have discussed, each case stands on its own facts. In the particular circumstances of this case, upon reviewing the aggravating and mitigating factors in this case the appropriate sentence absent, and I want to stress, absent the proportionality principle will be, for the importation of heroin, 11 years, and then for the possession for the purpose of trafficking, 6 years consecutive, for a total of 17 years minus credit for time served in custody.
As a result of the fact that this case involves multiple offences the practical effect of these sentences is that they are excessive in these particular circumstances.
I have noted that the primary sentencing principles are denunciation and deterrence, although, there is no reason to conclude that the prospect for Mr. Akintunde’s rehabilitation is bad. This is also a consideration for this court.
Given the proportionality principle, I conclude that after considering the aggravating and mitigating factors in this case Mr. Akintunde is sentenced as follows: On the importation of heroin it shall be 8 years, and consecutive to that a sentence of possession for the purpose of heroin, which will be 4 years, for a total sentence of 12 years. The credit of 411 days is applied to the 8 year sentence. Effectively, after noting the 411 days of pre-trial custody Mr. Akintunde shall serve 2,509 additional days on the importation charge. This effectively works out to 6 years, 10 months and 19 days. The possession for the purpose sentence shall be 4 years which shall be consecutive.
All items seized will be forfeited. There will be a weapons prohibition order pursuant to s. 109 of the Criminal Code for a period of 10 years.
The Crown seeks a DNA order. These are secondary designated offences. There was no real opposition from the defence on the Crown’s request, however, even if there had been, I conclude that despite the absence of a criminal record, considering the misleadingly simple but sophisticated nature of the crime, the seriousness of the offence, the level of Mr. Akintunde’s involvement, which is beyond that of a courier, leads this court to conclude that his privacy interests are outweighed by the public interest in having his DNA available as an investigative tool. An order will be made that a sample of his DNA be taken.
MS. AFONSO: Thank you, Your Honour.
MR. SAINI: Sorry, Your Honour, just for clarity purposes. So the sentence was the total remaining sentence?
THE COURT: What I have is that the sentence on the importation is 6 years, 10 months and 19 days.
MR. SAINI: For the importation, and then four years after.
THE COURT: Four years. Now, what did I say?
Let’s make sure we have it right. Yes, because I was looking at 12 initially before dead time, so let’s make sure that that’s correct.
MS. AFONSO: That makes sense.
THE COURT: Okay. Thank you.
MS. AFONSO: Thank you.
THIS IS TO CERTIFY THAT the foregoing
is a true and accurate transcription
of my recordings to the best of
my skill and ability.
Angelina E. Falcone
Official Court Reporter