ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 50000746/12

DATE: 2013/02/20

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARLON MALCOLM

Accused

George Lennox and Jay Spare for
the Crown

Craig Bottomley for the Accused

HEARD: February 13, 2013

REASONS FOR SENTENCE

A.J. O’MARRA J.:

[1] Marlon Malcolm was found guilty after trial on December 12, 2012 of importing cocaine into Canada, May 3, 2010, contrary to s.6 (3) (a) of the Controlled Drugs and Substances Act and possession of cocaine for the purpose of trafficking during the period of May 3 to May 4, 2010, contrary to s.5 (2) of the Controlled Drugs and Substances Act. He is here today to be sentenced for these offences.

Circumstances of the Offences

[2] The police in an investigation called “Project Corral” intercepted the telephone communications by judicial authorization of a number of parties, including Marlon Malcolm and Dwayne Johnson. Several calls between Malcolm and Johnson from April 10 to May 3, 2010 involved discussions concerning the importation of a quantity of cocaine, approximately 750 grams, by mail delivery from Panama. Johnson, who spoke with the supplier in Panama, provided him with an address associated with Malcolm to which the drugs were to be sent. Johnson kept Malcolm apprised of all arrangements and developments. The plan was to send a small quantity initially in order for the Panama supplier to determine if the process would work. If successful, thereafter was to be followed by more shipments of greater amounts.

[3] On May 3, 2010, police conducting surveillance of the address observed Malcolm receive and sign for the package from the postman operating the Canada Post delivery van. Malcolm in turn provided the package to Johnson. They both travelled to Johnson’s residence, then to 7 John Street, a location from which Johnson and Malcolm sold drugs. Johnson was seen to meet other individuals and turn over small white packages.

[4] The quantity of cocaine shipped was approximately 600 grams – an amount less than anticipated. The discrepancy was explained by the supplier to Johnson as a result of sending the wrong package. On May 4, 2010, on execution of search warrant at the residence of Dwayne Johnson the police found approximately 112 grams of cocaine secreted in his clothes closet.

Circumstances of the Offender

[5] Marlon Malcolm is 34 years old. He has a criminal record which consists of having been in possession of a controlled substance, crack cocaine, on July 30, 2008. He was sentenced to a fine of $1,725 and placed on probation for two years. At the time he was a crack addict, however, he has been sober for the past five years.

[6] Mr. Malcolm is single, although he is the father of 3 children from three different relationships. His first daughter, 16, was born when he was a teenager. It was noted in the Pre-Sentence Report ordered in this matter that he claims to pay Court ordered child support payments and maintains a regular visitation with his daughter. His second daughter is 5 years old. There is no formal child support arrangement however; he claims to provide child care and emotional support. His son is 2 years of age and currently in the care of the Children’s Aid Society as his mother is presently incarcerated.

[7] Mr. Malcolm is originally from Jamaica and arrived in Canada at age 10 years to live with his mother who had emigrated earlier. In her absence he was raised by an aunt and uncle. Once here he lived with his mother, step-father and step siblings.

[8] He left high school at 17, six credits short of obtaining his high school diploma. He is unemployed and currently in receipt of Ontario Work Benefits. There is no report of any form of past employment reflected in the Pre-Sentence Report. At trial, Canada Revenue Agency Notices of Assessment for 2006, 2007, and 2008 in his name, seized from the address to which the cocaine was sent, reported no income for those years. (See Exhibits # 35A, B and C.)

[9] In the Pre-Sentence Report, it was reported that Mr. Malcolm had expressed remorse and acknowledged that he was not working at the time of the offence and has sought financial gain through his criminal involvement. Further, he explained that after the death of his mother in 2009 he lost all motivation and lacked any constructive engagement so he started hanging around with people involved in the street scene. Although associated with known gang members of the Shower Posse, the Five Point Genralz and the Driftwood Crips, he asserts that since his arrest he has cut off all ties with any persons involved in the street scene.

[10] It is noted in the Pre-Sentence Report that he hopes to finish high school and pursue post-secondary education, however, he has not pursued any educational or employment opportunities while on probation or bail release. He has however, volunteered as a math tutor with at risk children and youth three times a week with a community organization involved in tutoring children and providing African history education since the fall of 2011.

Position of the Parties

[11] The Crown’s position is that the appropriate range of incarceration for the offences of the nature committed by Mr. Malcolm is 5 to 8 years. In this instance, the Crown, accepting that Dwayne Johnson was the principal, submits that Malcolm was his confederate and partner in selling drugs, as reflected in the intercepted communications between them. The Crown submits that as a result an appropriate period of incarceration would be 6 years in the penitentiary. Further, the Crown requests ancillary orders of a s.109 weapons prohibition, an order requiring him to provide DNA samples, and a forfeiture order for digital scales, a quantity of marijuana and cell phone seized at Malcolm’s residence the day of his arrest, May 4, 2010.

[12] The defence suggests that Marlon Malcolm should receive a sentence of approximately 3 ½ years in the penitentiary less 1 month and 25 days pre-trial custody with additional credit for compliance with the strict bail conditions from the time of his release to the date of sentencing. Mr. Malcolm was subject to conditions of house arrest from June 29, 2010 to July 8, 2011 and thereafter, by consent variation to the imposition of a curfew from 11:00 p.m. to 6:00 a.m. and deletion of the house arrest condition. Accordingly, defence counsel submits that the period of incarceration imposed by the Court should be reduced by approximately 6 months to 3 years imprisonment or less. Defence counsel took no issue with the ancillary orders requested by the Crown.

Aggravating and Mitigating Factors

[13] Mr. Malcolm has a record for possession of crack cocaine, and he was on probation at the time of his involvement in the present offences. He has acknowledged having participated in the importation and possession of cocaine in order to derive financial gain. In this instance, he participated knowing the pernicious affect that the use of drugs can have, having been an addict himself. Notwithstanding, he continued to participate for personal gain in an illicit drug trade that has long been recognized to sow misery and destruction in the lives of users.

[14] In mitigation, I accept his expression of remorse as reflected in the Pre-Sentence Report, as well in his statement made in Court apologizing to his family. There appears to be rehabilitation potential as reflected in his volunteered efforts to assist youths at risk and his expressed desire to improve himself for the benefit of his children.

The Applicable Law

[15] I take into account the sentencing objectives and principles set out in ss. 718, 718.1, and 718.2 of the Criminal Code.

[16] In R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (OCA) at para. 103 Doherty J.A., noted that where an offence is particularly serious because it causes or threatens significant harm to an individual or segments of society the objectives of general deterrence and denunciation will usually dominate the other objectives identified in s.718 and imprisonment is almost inevitable.

[17] The importation of dangerous drugs, such as cocaine is considered “among the most serious crimes known in Canadian law” because of the great social and economic harm it causes to society. It presents huge costs to society and it destroys lives. In Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 SCR 982, (SCC) at 1039-1040, Cory J., speaking of the social-economic costs of illicit drug use in Canada stated the following:

The costs to society of drug abuse and trafficking in illicit drugs are at least significant if not staggering. They include direct costs such as health care and law enforcement, and indirect costs of lost productivity…

These significant and often tragic consequences serve to emphasize that the harm caused by trafficking in illicit drugs is very properly a matter of grave concern in Canada, as it is throughout the world.

[18] Earlier, in R. v. Smith, 1987 64 (SCC), [1987] SCJ No. 36 at para. 2, Lamer J., as he then was, stated:

Those who import and market hard drugs for lucre are responsible for the gradual but inexorable degeneration of many of their fellow human beings as a result of their becoming drug addicts. The direct cause of the hardship cast upon their victims and their families, these importers must also be made to bear their fair share of the guilt for the innumerable serious crimes of all sorts committed by addicts in order to feed their demand for drugs. Such persons, with few exceptions (as an example, the guilt of addicts who import not only to meet but also to finance their needs is not necessarily the same in degree as that of cold-blooded non-users), should upon conviction, in my respectful view, be sentenced to and actually serve long periods of penal servitude.

[19] A poignant example of the degradation caused by the sale of drugs was the surveillance videotape taken by an undercover police officer of a mother and daughter sharing a crack pipe behind 7 John St., the premises out of which Johnson and Malcolm operated.

[20] What is the appropriate range?

[21] In R. v. Cunningham, 1996 1311 (ON CA), [1996] O.J. No. 448 (OCA), a case that involved a first time offender acting as a courier, who imported multiple kilograms of cocaine into Canada, the appeal court held that absent exceptional or extenuating circumstances the appropriate range of incarceration would be 6 to 8 years.

[22] The Court stated at paragraph 24:

[W]e are all of the view that as a general role, absent exceptional or extenuating circumstances, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be six to eight years in the penitentiary. In establishing such a range, we readily acknowledge that sentencing is not an exact science and that trial judges must retain the necessary degree of flexibility to do justice in individual cases. We recognize as well that the suggested range will often require the imposition of a severe penalty for first offenders. We are not insensitive to this concern, mindful as we must be that in many instances, couriers tend to be weak and vulnerable, thereby becoming easy prey to those who engage in drug trafficking on a commercial basis.

Sympathetic though we are to the plight of many couriers, such concerns must give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs.

[23] The significant factor in Cunningham appears to have been the quantity of drug imported into Canada, in that instance 5.231 kilograms (approximately 11 pounds) of cocaine worth over a half a million dollars at street level. In R. v. Madden, 1996 10228 (ON CA), [1996] O.J. No. 376 (O.C.A.) a case decided the same day as Cunningham, involving a 23 year old first-time offender acting as a courier as well, who imported 770 grams of cocaine, the quantity was a noted factor in determining the appropriate range.

[24] In that case, at first instance, the trial court imposed a sentence of 4 years being of the view that the appropriate range was 6-8 years. However, Finlayson, J.A. speaking for the court of appeal suggested that a range of 3 to 5 years was appropriate for the importation of less than one kilogram of cocaine. In addition, there were other mitigating factors; the appellant had pleaded guilty, she had no criminal record and she had cooperated with the police in participating in a “controlled delivery” that proved unsuccessful. Finlayson, J.A noted that the trial judge had failed to give sufficient weight to her cooperation with police. Her sentence was reduced to 3 years.

[25] In Cunningham, the court acknowledged and clarified the range divergence with Madden at para. 16:

[I]t is our considered opinion that as a general rule, absent exceptional or extenuating circumstances, a sentence in the range of three to five years is warranted for first time couriers found guilty of importing a kilogram more or less, of cocaine for personal gain.

[26] In R. v. Hamilton, supra, Doherty J.A. at para. 107 stated:

Because the sentencing of drug couriers presents one of the more difficult, and unfortunately more common situations in which the gravity of the offence and the personal responsibility of the offender suggest different dispositions, this Court has set out different ranges of sentence to assist trial judges in fixing appropriate sentences in individual cases.

[27] Most couriers who come before the Court, as noted in Cunningham are weak and vulnerable, thereby becoming easy prey for those who engage in the business of drug trafficking. In order to balance the gravity of the offence with the personal responsibility of the offender Doherty J.A. accepted in Hamilton that the range of 3 to 5 years as noted in Madden is a helpful sentence range where the importation of the amount of cocaine is less than one kilogram.

[28] Defence counsel argued that the quantity involved in this instance, 600 grams, (perhaps something less if the weight of the packaging was taken into account), places it in the Madden range of 3 to 5 years. His having acted only as a receiver of the cocaine and his declared acknowledgment and remorse for his criminal behaviour places him at the lower end.

[29] The cases relied on by defence counsel in support of the low end of the range all involved offenders who acted as couriers in which there were significant mitigating factors, absent in this instance, such as guilty pleas, the lack of criminal records, offenders who were unemployed single mothers, drug addicts, and who offered cooperation with the authorities see R. v. AB; R. v. CD, 2004 48682 (ON SC), [2004] O.J. No. 5220 (SCJ); R. v. Baker, [2004] O.J. No. 2692 (OCJ), R. v. Spencer, [2003] O.J. No. 1052 (SCJ); R. v. White, [2010] O.J. No. 3618 (OCJ); R. v. Grant, [2005] O.J. No. 6129 (SCJ); R. v. Fenty, [2005] O.J. No. 5789 (SCJ) and R. v. Smith, [2005] O.J. No. 3352 (SCJ).

[30] Mr. Malcolm was not a courier. He was not a vulnerable person motivated by a drug addiction who participated to sustain a habit. He has a criminal conviction for drug possession. He was on probation for it at the time. He was more than just a receiver. He stood to gain financially. While I accept that Dwayne Johnson was the principal in that he negotiated the deal and made arrangements, Marlon Malcolm was directly involved in the deal with Johnson to obtain financial gain. Although an addict in the past, he was at the time of his offences, a “cold-blooded non-user” as referred to by Lamer J. in Smith.

[31] Mr. Malcolm meets the requirements, except for the quantity of drug involved, for a sentence at the low end of the range suggested in Cunningham. However, in my view, the “long period of penal servitude” necessary to effect denunciation and deterrence, as well as the other sentencing objectives, such as rehabilitation should be considered as a continuum from 3 to 8 years. Where the offender is not a courier there should be no bright line between the ranges suggested by the cases. The appropriate place along that continuum should be determined not only by the quantity imported, but the characteristics of the offender, and his “personal responsibility”. Accordingly, Mr. Malcolm should be sentenced to a period of incarceration at the high end suggested in Madden.

[32] In this instance, the quantity was less than one kilogram. I accept that Mr. Malcolm played a lesser role than did Johnson, who made the contacts, negotiated the deal. However, I am satisfied Malcolm was in business with Johnson to import and traffic cocaine, based on the intercepted telephone conversations and surveillance observations. He stood to gain financially as he has acknowledged.

[33] Taking into consideration the aggravating and mitigating factors, a fit sentence for Count No. 1, the importation of cocaine is 5 years imprisonment and for Count No. 2, possession for the purpose of trafficking 5 years imprisonment concurrent to Count No. 1. Mr. Malcolm shall be credited with the equivalent of 6 months as suggested by defence counsel (2 months for pre-trial custody and 4 months for the significant restraint of his liberty as a result of the bail conditions of house arrest for just over 1 year and curfew restrictions thereafter.

[34] In the result, Mr. Marlon Malcolm is sentenced to 4 years and 6 months incarceration in the penitentiary.

[35] In addition, Mr. Malcolm shall be prohibited for 10 years from possessing any firearms or other weapons or items as outlined in s.109 of the Criminal Code.

[36] He shall be required to provide a sample of his bodily fluid for DNA sampling purposes pursuant to s.487.051 of the Criminal Code.

[37] Lastly, there shall be an order for the forfeiture and disposition of the digital scales, marijuana and cell phone seized at the time of the offender’s arrest.

A.J. O’Marra J.

Released: February 20, 2013

COURT FILE NO.: 50000746/12

DATE: 2013/02/20

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARLON MALCOLM

Accused

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: February 20, 2013