ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-1258-00

DATE: 2014-07-18

B E T W E E N:

HER MAJESTY THE QUEEN

Althea Coke, Counsel for the Crown

and -

EUCLID CUMMINGS

Jason Bogle, Counsel for the Defence

HEARD: July 3, 2014

REASONS FOR SENTENCING

M. J. Donohue J.

OVERVIEW

[1] A jury found Mr. Cummings guilty of importing cocaine. Their verdict was given February 25, 2014.

[2] The defence was lack of knowledge that the bottles in his suitcase contained liquid cocaine.

[3] Sentencing submissions were given on July 3, 2014. These are the reasons for the sentence imposed in the circumstances of this case.

THE FACTS

[4] Mr. Cummings went to Jamaica to see family in mid-September 2010 and he returned to Canada through Toronto Pearson International airport on September 17, 2010.

[5] His suitcase contained two bottles. The two bottles, which he described as honey, actually contained 474 grams of liquid cocaine that had a street value of between $37,000 and $41,000.

[6] Mr. Cummings denied knowledge that the two bottles contained cocaine.

CIRCUMSTANCES OF THE OFFENCE

[7] Mr. Cummings imported two bottles of liquid cocaine in his suitcase. He denied any knowledge that the bottles contained cocaine.

[8] Initially, he stated to the officer at the secondary inspection station that he “bought” the two bottles. At trial, he stated that he was given the two bottles and was asked to bring them to another family member in Canada. To explain the difference in the evidence he said he had told the officer he “brought” the bottles, rather than “bought” the bottles.

[9] The jury, in convicting, him clearly did not accept this explanation.

[10] He was found to have knowledge or to have been wilfully blind to the knowledge that the bottles contained cocaine.

CIRCUMSTANCES OF THE OFFENDER

[11] Mr. Cummings is 44 years of age. At the time of the offence he was living with his spouse and four of his seven children. He is now separated.

[12] He is employed as a car detailer with his cousin and as a barber. He has training as a baker.

[13] The Pre-Sentence Report (“PSR”) discloses that although separated from his current spouse he is still supporting the children financially. His spouse described him in positive terms, as an “involved, dedicated and loving father” to their children.

[14] Mr. Cummings has access with his children every other weekend.

[15] Mr. Cummings has smoked Marijuana in the past but is “not currently using it much”. He is a social drinker. There are no addiction issues or mental health issues.

[16] Mr. Cummings was found guilty of assault and given a conditional discharge in 2012.

[17] He has cooperated with the conditions of his probation regarding the assault charge. He has attended anger management and Family Reunification programmes.

RIGHT OF ALLOCUTION

[18] The defendant expressed his innocence of the crime for which he was convicted. He acknowledged that the jury found him to be guilty. He described himself as a family man who worked hard and wished a second chance to redeem himself.

[19] He asked the court to be lenient as he is the main supporter of his young family.

IMPACT ON THE COMMUNITY

[20] Cocaine is an evil in our land. It ruins lives and hurts both young and old.

[21] The Court of Appeal in R. v Hamilton 2004 5549 (ON CA), [2004] O.J.No.3252, 72 O.R. (3rd) 1, para 104 was clear on the seriousness of importation of even small amounts of cocaine.

“The use and sale of cocaine kills and harms both directly and indirectly. The direct adverse health effects on those who use the drug are enormous and disastrous. Cocaine sale and use is closely and strongly associated with violent crime. Cocaine importation begets a multiplicity of violent acts. Viewed in isolation from the conduct which inevitably follows the importation of cocaine, the act itself is not a violent one in the strict sense. It cannot, however, be disassociated from its inevitable consequences. Unlike the trial judge (para.224), I characterize cocaine importation as both a violent and serious offence: see R. v. Pearson (1992), 1992 52 (SCC), 77 C.C.C. (3rd) 124 at 143-44 (S.C.C.).”

[22] The Controlled Drugs and Substances Act makes it an indictable offence to import cocaine, in recognition of the dangers of this drug being made available in our country.

[23] Subsections 1 and 3(a) of s. 6 provide as follows:

(1) Except as authorized under the regulations, no person shall import into Canada or export from Canada a substance included in Schedule I, II, III, IV, V or VI.

(3) Every person who contravenes subsection (1) or (2)

(a) where the subject-matter of the offence is a substance included in Schedule I or II, is guilty of an indictable offence and liable to imprisonment for life;

POSITIONS OF CROWN AND DEFENCE

[24] The Crown seeks a sentence of imprisonment for three years less three days pre-sentence custody; a weapons prohibition order; and a DNA order.

[25] The Defence seeks a conditional sentence with probation. There is no objection to the ancillary orders sought.

CASE LAW

[26] There are three leading decisions of the Ontario Court of Appeal relating to the range of appropriate sentences for the importation of cocaine. They are R. v. Cunningham 1996 1311 (ON CA), 27 O.R. (3d) 786, R. v. Madden, (1996) 1996 10212 (ON CA), 104 C.C.C. (3d) 548 and R. v. Hamilton 72 O.R. (3rd) 3252.

[27] In the Cunningham decision, the accused imported 5.2 kilograms of cocaine. The accused was a youthful first offender from a poor background. She pleaded guilty to the charge. At page 8 of the decision the court states,

...indeed after careful consideration, we are all of the view that as a general rule, absent exceptional or extenuating circumstance, the range of sentence for first offender couriers who smuggle large amounts of cocaine into Canada for personal gain should be 6 to 8 years in the penitentiary.

[28] In Madden, dealing with a lower quantity of cocaine (770 gm), the court determined that a range of three to five years was warranted for first offenders. The Court in Cunningham stated the following for amount of a kilogram, more or less:

In any event, in view of the decision of this court in R. v. Madden, heard and decided on the same day as the instant appeal, it is our considered opinion that as a general rule, absent exceptional or extenuating circumstances, a sentence in the range of 3 to 5 years is warranted for first offender couriers found guilty of importing of a kilogram more or less, of cocaine for personal gain. (para 6)

[29] The Court of Appeal held in R. v. Hamilton (2004), 2004 5549 (ON CA), 186 C.C.C. (3d) 129 that where the amount of cocaine imported is approximately 500 grams, the range of sentence runs from “at or near” two years to five years’ imprisonment. The court considered its decision in R. v. Madden and recognized that “the importation of lesser amounts of cocaine renders the crime somewhat less serious.” (para 108).

[30] In R. v. Ebanks, [2012] ONSC 5002 406 grams of cocaine were imported. Justice Baltman noted that the range of sentence was two to five years and ordered 2.5 years imprisonment which was at the lower end of the range. Her considerations were that the offender was young, had no prior record, had support of family, had a favourable PSR and that the offender had been compliant with bail conditions.

MITIGATING AND AGGRAVATING FACTORS

[31] There are a number of mitigating factors in this case.

[32] Mr. Cummings is employed in two jobs supporting a family. He is literate and has a Grade 12 education.

[33] He has been largely compliant with his probation conditions on the assault charge.

[34] He has had no other drug involvement or substance abuse issues.

[35] There are also a number of aggravating factors.

[36] Mr. Cummings conduct required some planning and deceit with other like-minded persons to package and conceal this liquid cocaine to appear as home-made honey. His actions were not impulsive.

PRINCIPLES OF SENTENCING

[37] The Criminal Code sets for the purpose and principles of sentencing:

The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

718.2 A court that imposes a sentence shall also take into consideration the following principles:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

[38] Section 10(1) of the Controlled Drugs and Substances Act provides as follows:

(1) Without restricting the generality of the Criminal Code, the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.

[39] None of the aggravating factors set out in s. 10(2) of the Controlled Drugs and Substances Act apply in this case.

REASONS

[40] The pre-sentence custody was only three days and is considered in the sentencing.

[41] The principles in a case such as this are denunciation and deterrence.

[42] The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[43] Two to five years is the range for the importation of a half kilo of cocaine into Canada. There are no factors of consideration that would take this case out of the range established by the Court of Appeal.

[44] Mr. Cummings is a spouse, father, and a working man with obligations to support young children. His offence was serious and involved some planning and deceit.

[45] This will be his first period of incarceration. He has not shown any remorse.

[46] This sentence should be kept at a minimum keeping in mind the principles of sentencing. I find that a period of incarceration of more than two years is required.

[47] The individual’s circumstances are such that 2.5 years, less three days for time served, would be a fit and proper sentence.

ANCILLARY ORDERS

[48] A DNA order under s. 487.051(3) of the Criminal Code will be granted. A weapons prohibition order under s. 109 (2) of the Criminal Code shall issue for a period of ten years after Mr. Cummings’ release from custody.

FINAL DECISION

[49] Accordingly, I have endorsed the indictment as follows:

i. Two and a half years imprisonment less three days;

ii. a DNA order; and

iii. a weapons prohibition order for ten years.

M. J. Donohue, J.

Released: July 18, 2014