COURT FILE AND PARTIES

COURT FILE NO. CR-14-90000125-0000
DATE: 20150706

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Lucas Price for the Crown

• and -

SADYK SADIKOV

Jennifer Penman for Sadyk Sadikov

HEARD: June 22, 2015

Thorburn J.

REASONS FOR SENTENCE

1. THE CONVICTIONS

[1] Sadyk Sadikov was convicted of eighteen offences that include possession of MDMA, methamphetamine, heroin, ketamine and marijuana for the purpose of trafficking, possession of the proceeds of crime, possession of a loaded firearm and ammunition without being the holder of a license, knowing he was not the holder of a registration certificate, careless storage of a firearm and ammunition, and possession of a firearm while prohibited from so doing by court order.

[2] A person cannot be convicted of two offences where both arise out of the same facts and in substance only one “crime” has been committed. Where such offences are committed, a conditional stay on the lesser charge will be entered. (Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729.)

[3] Therefore, at the request of the Crown, counts 4, 7, 8, 12, 15, 17 and 18 are conditionally stayed as they arise out of the same facts and are either identical to or captured by other counts in the indictment.

[4] Sadyk Sadikov is to be sentenced on the remaining eleven offences as follows:

i. Count 1: possession of 44 grams MDMA for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

ii. Count 2: possession of 20 grams of marijuana for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

iii. Count 3: possession of almost 3 kilograms of methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

iv. Count 5: possession of just over one gram of opium and heroin for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

v. Count 6: possession of one kilogram of ketamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act;

vi. Count 9: possession of the proceeds of crime ($3,050) knowing it was obtained as a result of the commission of a crime contrary to section 355(b) of the Criminal Code;

vii. Count 10: possession of a Smith and Wesson handgun with 6 rounds of ammunition without being the holder of a license or registration certificate contrary to section 95(1) of the Criminal Code;

viii. Count 11: possession of a Smith and Wesson handgun without being the holder of a license or registration certificate contrary to section 92(1) of the Criminal Code;

ix. Count 13: unlawful storage of a firearm contrary to section 86(1) of the Criminal Code;

x. Count 14: unlawful storage of ammunition contrary to section 86(1) of the Criminal Code; and

xi. Count 16: unlawful possession of a firearm while prohibited from doing so by Order of McCombs J. contrary to section 117.01(1) of the Criminal Code.

2. THE PRINCIPLES OF SENTENCING

General Principles

[5] Section 718 of the Criminal Code, R.S.C., 1985, c. C-46 provides that, in sentencing a person convicted of offences, the court must consider:

i. denunciation of the unlawful conduct;

ii. deterring the offender and others from committing offences;

iii. separation of offenders from society where necessary;

iv. rehabilitation of offenders;

v. reparation for harm done to victims or to the community; and

vi. promotion of a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[6] Similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. The sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A sentence should be increased or reduced to account for aggravating or mitigating circumstances.

[7] Sentencing ranges provide guidelines for trial judges. (R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290 at para 244.)

3. SENTENCES RANGES FOR THESE OFFENCES

[8] From a review of the cases provided to me by counsel many of which are cited below, it would seem that the range of sentence for possession of a loaded restricted firearm is between three and six years and the range of sentence for possession of this quantity of drugs for the purpose of trafficking, is between four and nine years:

i. In R. v. Duhamel, [2013] ONSC 1340, (S.C.J.) a 24 year old accused convicted of possession of a fully loaded automatic handgun and ammunition, approximately 137 grams of cocaine, drug paraphernalia and $2,055 who was on bail at the time he committed these offences and had a significant criminal record, was sentenced to seven years’ imprisonment before taking into account time spent in pre-sentence custody. Among other things he received a sentence of three years for unauthorized possession of a loaded prohibited weapon, and one and one-half years consecutive for possession of 137 grams of cocaine for the purpose of trafficking.

ii. In R. v. Channer, [2013] O.J. No. 2912 (O.C.J.), a 35 year old offender with a criminal record, who pled guilty to possession of a loaded firearm, possession of crack cocaine and hashish and $946 was sentenced to four years’ imprisonment on the firearm charge and eight months’ concurrent for the drug charges. There is no indication of the quantity of the drugs in the reasons for sentence.

iii. In R. v. Wong (2012), (O.C.A.) 767, a 24 year old first time offender was sentenced to three years’ imprisonment for possession of a firearm, 35.8 grams of ketamine, 4 grams of cocaine, $2,000 and a set of scales.

iv. In R v. Burgher, [2014] O.J. No. 6322 (S.C.J.) a 31 year old offender with a lengthy criminal record received a global sentence of ten and one-half years for possession of two firearms with ammunition, 1¼ kilograms of cocaine and 1.14 grams of heroin for the purpose of trafficking, and breach of six court orders. He was sentenced to six and one-half years for possession of two loaded prohibited weapons and five and one-half years for possession of the drugs for the purpose of trafficking.

v. In R. v. Crevier, 2013 ONSC 2630, [2013] O.J. No. 2257, (S.C.J.), an offender with a lengthy criminal record who was convicted of possession of a loaded firearm and cocaine with an estimated street value of $10,000 was sentenced to four years in custody for possession of the loaded restricted firearm and two years consecutive for possession of cocaine for the purpose of trafficking.

vi. In R. v. Johnson, 2013 ONSC 4217, [2013] O.J. No. 2957 (S.C.J.), a 26 year old offender who pled guilty to possession of a loaded firearm and possession of drugs for the purpose of trafficking, and had a prior criminal record that included two prior counts of possession of drugs for the purpose of trafficking, received a sentence of three years for possession of the loaded firearm and one year consecutive for possession of 6.47 grams of cocaine for the purpose of trafficking.

vii. In R. v. Peterkin, 2013 ONSC 2116, [2013] O.J. No. 1614 (S.C.J.), a 22 year old offender with no criminal record was sentenced to three years in custody for possession of a loaded firearm and one additional year for possession of 1.31 grams of cocaine and 7.7 grams of marijuana for the purpose of trafficking.

viii. In R. v. Oraha, [2012] O.J. No. 973 (S.C.J.), a 25 year old first offender with a positive pre-sentence report who expressed remorse was sentenced to nine years’ imprisonment for trafficking 3 kg of MDMA, 3 kg of cocaine, conspiracy to traffic cocaine and possession of 1.3 kg of MDMA for the purpose of trafficking.

ix. In R. v. Liu, [2009] O.J. No. 2390 (O.C.J.), a first time offender who pled guilty to trafficking 1 kilogram of methamphetamine, received a six year sentence.

x. In R. v. Dehaney, 2012 ONCA 389, [2012] O.J. 2547 (S.C.J.), a 23 year old offender with a minor criminal record received a sentence of seven years for possession of a firearm and buying 1/8 of an ounce to one ounce of cocaine seven times.

xi. In R. v. Wu, [2014] O.J. No. 4846 (S.C.J.), a 44 year old offender convicted of possession of 175 kilograms of methamphetamine powder and tablets with a prior record for drug trafficking who was on parole at the time he committed these offences, was sentenced to eight years in custody.

In Wu it was noted that methamphetamine is highly addictive. There are physical risks to use of the drug including cardiovascular and brain damage. There is no medication to treat the addiction to methamphetamine and behavioural therapy has limited efficacy. MDMA and ketamine, although less addictive than methamphetamine, are substances dangerous to human health. MDMA can be mentally addictive and lead to addiction to more serious drugs in order for the user to achieve the euphoria that early MDMA use brings. Ketamine abuse can lead to depression, thought impairment and amnesia.

xii. In R. v. Bajada, 2003 15687 (ON CA), [2003] 169 O.A.C. 226 (C.A.), the court held that “sentences of five to five and one-half years are not uncommon for possession of a substantial amount of cocaine for the purposes of trafficking following an accused’s guilty plea or where the accused has no prior record.”

xiii. In R. v. Macias, [2003] O.J. No. 5564 (S.C.J.), a first time offender was sentenced to five years’ imprisonment for possession of approximately 1.3 kilograms of cocaine for the purpose of trafficking.

xiv. In R. v. W.C.A., [2010] O.J. No. 2677 (S.C.J.) at paras. 49-51 in addition to a six and one-half year sentence for a gun related offence, the offender received a sentence of one and one-half years for breach of several prohibition orders.

Consecutive versus Concurrent Sentences

[9] Whether the sentences are consecutive or concurrent is determined by, “whether the acts constituting the offences were part of a linked series of acts within a single endeavor”. This is a factual assessment. (R. v. G.P.W. (1998), 106 B.C.A.C. 239 (B.C.C.A.) at para. 35 and R. v. Li, 2009 BCCA 85, 2009 B.C.C.A. 85 at para 47.)

[10] Consecutive sentences may be imposed where the offences are temporally linked but constitute invasions of different legally protected interests. (R. v. Houle, 2008 ONCA 287, 79 W.C.B. (2d) 64 at para. 4.)

[11] However, sentences need not be consecutive in all cases where an offender is convicted of both drug and weapons charges. In R. v. Borecky, [2013] BCCA 163 at para. 75, the British Columbia Court of Appeal ordered that the sentences for weapons and ammunition offences be concurrent with the drug related offences and treated instead, as aggravating factors to the drug offences.

The Totality Principle

[12] Where there are multiple offences, the principle of totality requires the court to craft a global sentence that is not excessive. (R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500 at para. 42 and R. v. Gummer, 1983 5286 (ON CA), [1983] O.J. No. 181 (C.A.) at para 13.)

4. THE FACTS RELEVANT TO SENTENCE IN THIS CASE

[13] All of the items that are the subject of these charges were found by police pursuant to the execution of a search warrant at the second floor apartment at 306 Adelaide Street West on October 20, 2008.

[14] When police executed the search warrant, they found white residue on the stove top in the apartment. It is agreed that the appearance of the stove burner and the white powder on it, is consistent with crack cocaine production. The stove top was not tested for the presence of cocaine or crack cocaine. Mr. Sadikov admits that he sold small quantities of cocaine to an undercover officer four times.

[15] A black knapsack was found open on the chair in the living room. In the knapsack, police found a package that contained over one kilogram of methamphetamine/MDMA pills protruding from the knapsack. Heroin and ketamine were also found in the knapsack.

[16] A black digital scale was found on the coffee table. The scale weighs items from .1 gram to 1000 grams.

[17] Marijuana and MDMA were found in a closed jewelry box at the top of the stairs to the apartment. Marijuana was found in a drawer in a shelving unit in the kitchen along with two envelopes addressed to Mr. Sadikov. MDMA/methamphetamine and ketamine pills were found on a table beside the bed in the bedroom.

[18] Approximately 39,000 individual doses of drugs were found in the apartment. The value is estimated at $675,000.

[19] $3,050 was found in a box on the kitchen counter.

[20] A loaded Smith and Wesson firearm was found in plain view beside a computer on a table in the kitchen. Mr. Sadikov did not have a license to possess a firearm. Ammunition was found throughout the apartment: six in the handgun, two on a shelf in the kitchen and thirty-one in a box at the top of the stairs.

[21] At the time he committed these offences, Mr. Sadikov was bound by a section 109 order issued by McCombs J. not to possess a weapon.

5. THE CIRCUMSTANCES OF THIS OFFENDER

Mr. Sadikov’s Criminal Record

[22] Mr. Sadikov’s criminal record includes the following convictions:

Date

Conviction / Finding of Guilt

Sentence

2007-06-26
Toronto, Ont.

Possession of a schedule 1 substance for the purpose of trafficking
-Sec. 5(2) CDS Act

Probation for 11 months plus credit for 25 months presentence custody and mandatory prohibition order
(Entry retained per s.119(9) of the YCJA)

2007-07-05
Toronto, Ont.
(Youth Court)

Assault peace officer
Sec. 270(1) CC

2 days and 1 day under supervision in the community on each charge conc. And probation for 14 Months and discretionary prohibition order for 2 years (Sec 51(3) Youth Court Justice Act)

Mr. Sadikov’s Past

[23] Counsel for Mr. Sadikov advises that Mr. Sadikov is thirty-one years old and single.

[24] Mr. Sadikov was born in the former USSR and arrived in Canada at the age of six with his family. His counsel advises that he was bullied because of his religion and because of his inability to speak English.

[25] No evidence was led as to his work history although it is acknowledged that he was a drug dealer. Evidence was led that he was renovating a basement unit to be used as a convenience store at the time of his arrest.

[26] There is no evidence that Mr. Sadikov used or was addicted to drugs.

[27] Fifteen letters of support were written by siblings, friends and Mr. Sadikov’s mother. In addition, Rabbi Robinson wrote a letter seeking the release of Mr. Sadikov and offering to prepare a program for Mr. Sadikov to help “integrate him to be an upright member of our synagogue and Jewish community.” Rabbi Robinson goes on to state that, “One of my students who knows him [Mr. Sadikov] well says he has never met a person with a bigger heart towards the elderly and desire to help others in need.” It is not clear what exposure Rabbi Robinson has had to Mr. Sadikov.

[28] While he was awaiting trial on these charges Mr. Sadikov completed one session of a course entitled Use of Leisure, one session entitled Managing Stress, and one session entitled Setting up a Budget.

[29] Mr. Sadikov provided a letter that he wrote at his sentencing hearing. He stated that he was “sorry for everything I ever did in my life”. He went on to say that, “All though I feel it sounds weird but I needed this time so I can get closer to god and also my family and I believe that I am ready for them to go home and kiss the ones I love, and serve only GOD. I was even thinking of becoming a RABBI myself and helping others. What I was blind to see for myself for all these years if you walk in gods path no one can shame you.”

6. THE POSITIONS OF THE PARTIES

Mr. Sadikov’s Position

[30] Mr. Sadikov’s counsel submits that a sentence of three years for the gun related offences and four years for the drug trafficking charges is appropriate and the two sentences should be served concurrently.

[31] Mr. Sadikov’s counsel says that a sentence of three to four years is sufficient to bring home the messages of deterrence and denunciation to Mr. Sadikov and others like him as it is,

i. significantly higher than any Mr. Sadikov has served in the past;

ii. within the range for similar offences committed by similar offenders, and

iii. would serve the purposes of deterrence and denunciation without jeopardizing any chance Mr. Sadikov might have for rehabilitation.

[32] Finally, the gun convictions should be concurrent to the drug convictions as both sets of convictions arise from the same set of circumstances.

The Crown’s Position

[33] The Crown suggests that a global sentence of ten years minus time spent in pre-sentence custody is appropriate. The Crown submits that the global sentence be broken down as follows:

i. four years for the gun related offences and the breach of prohibition order; and

ii. six years consecutive for the drug convictions.

[34] The Crown points out that,

i. denunciation, deterrence and separation from society are primary concerns in cases involving firearms and trafficking drugs,

ii. this offender has an escalating pattern of reoffending, and

iii. the sentence proposed by the Crown is within the range for these offences.

Areas of Agreement Between the Parties

[35] Mr. Sadikov was convicted in another trial, of selling small quantities of cocaine to an undercover officer pursuant to this same police investigation. Mr. Sadikov has served a sentence of one year for the commission of those offences. The Crown therefore agrees that the global sentence should be reduced by one year.

[36] Mr. Sadikov has been in pre-sentence custody on these charges since February 24, 2014, that is, one year, four and one-half months. For the reasons set out below, he should be accorded credit for time spent in pre-sentence custody at the rate of 2:1.

[37] Finally, the Crown seeks a number of ancillary orders, the terms of which have been agreed to and are outlined in the conclusion on sentence.

7. CONCLUSION REGARDING SENTENCE

The Principles of Sentencing

[38] I have considered the principles of sentencing set out in the Criminal Code. I have also considered the range of sentences for offences of this nature committed by similar offenders.

[39] General denunciation and deterrence are of primary importance where the offences of possession of a firearm and drug trafficking are involved. (R. v. Sturge, [2001] O.J. No. 3923 (C.A.) at para. 6. and R. v. Popovics, [2005] O.J. No. 2456 (C.A.) at para. 7.)

[40] I have also considered the circumstances of this offender including,

a. his relatively minor criminal record;

b. his family and religious support;

c. he was not engaged in these activities because he was a drug addict;

d. he was not an addict and had drug paraphernalia including scales and large quantities of money which suggest this was being doing for financial gain;

e. the quantity of drugs was very large and some of the drugs are particularly pernicious;

f. the loaded firearm was in plain view in the kitchen;

g. at the time he committed these offences, Mr. Sadikov was subject to an order preventing him from possessing a firearm; and

h. Mr. Sadikov does not have the benefit of a guilty plea.

Determination of the Appropriate Global Sentence

[41] I am of the view that the drug and firearm offences constitute “invasions of different legally protected interests” and the firearm convictions should therefore be consecutive to the drug related convictions. I am however of the view that the firearm related offences should be concurrent to one another as they represent the same legally protected interests. The same is true for the drug related offences.

[42] A breach of a prohibition order can be dealt with in one of two ways: either as a significant aggravating factor when fixing the appropriate sentence on the possession of a loaded firearm charge, and then imposing a concurrent sentence on the charge alleging a breach of the prohibition order; or alternatively, by ignoring the prohibition order in fixing the appropriate sentence on the possession of the weapon charge and then imposing a consecutive sentence on the conviction for breach of the prohibition order. (R. v. McCue, [2012] O.J. No. 6381 (OCA).)

[43] The breach of prohibition order is an aggravating factor in determining the appropriate sentence on the firearm charges. The sentence for breach of a prohibition order is therefore concurrent to the firearm charges.

[44] Counsel for Mr. Sadikov submits that as in this case, where an offender has previously been convicted of similar offences, the “jump principle” may apply.

[45] I disagree. The “jump principle” does not apply in this case because the index offence is much more serious than the prior offences. (R. v. Borde, 2003 4187 (ON CA), (2003), 63 O.R. (3d) 417, at para. 39 and Frigault v. R., 2012, NBCA 8.) The jump principle is not meant to modify the basic principle that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[46] The individual sentences are broken down as follows:

Count 1: possession of 44 grams MDMA for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: two years;

Count 2: possession of 20 grams of marijuana for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: two years concurrent to Count 1;

Count 3: possession of almost 3 kilograms of methamphetamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: four years concurrent to Counts 1 and 2;

Count 5: possession of just over one gram of opium and heroin for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: two years concurrent to Counts 1, 2 and 3;

Count 6: possession of one kilogram of ketamine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act: three years concurrent to Counts 1, 2, 3, and 5;

Count 9: possession of the proceeds of crime ($3,050) knowing the proceeds were obtained as a result of the commission of a crime contrary to section 355(b) of the Criminal Code: one and one-half years, concurrent to Counts 1, 2, 3, 5 and 6;

Count 10: possession of a Smith and Wesson handgun with 6 rounds of ammunition without being the holder of a license or registration certificate contrary to section 95(1) of the Criminal Code: three and one-half years consecutive to the four year sentence on the drug related charges (Counts 1, 2, 3, 5, 6 and 9);

Count 11: possession of a Smith and Wesson handgun without being the holder of a license or registration certificate contrary to section 92(1) of the Criminal Code: three years concurrent to Count 10;

Count 13: unlawful storage of a firearm contrary to section 86(1) of the Criminal Code, one year concurrent to Counts 10 and 11;

Count 14: unlawful storage of ammunition contrary to section 86(1) of the Criminal Code, one year concurrent to Counts 10, 11 and 13; and

Count 16: unlawful possession of a firearm while prohibited from doing to by Order of McCombs J. contrary to section 117.01(1) of the Criminal Code, one year concurrent to Counts 10, 11, 13 and 14.

[47] In sentencing Mr. Sadikov, the court must ensure that the total sentence is just and appropriate.

[48] Based on the sentences imposed in the above cases and Mr. Sadikov’s circumstances, the appropriate global sentence for possession of a loaded firearm, ammunition, proceeds of crime, breach of a prohibition order and possession of the above illegal drugs for the purpose of trafficking is seven years. Therefore, after considering the totality principle, the sentence is reduced from seven and one-half years to seven years (or 84 months).

Deduction for Time Spent in Pre-sentence Custody and Time Served

[49] Mr. Sadikov has been in pre-sentence custody on these charges since February 24, 2014 (or one year and four and one-half months).

[50] Prior to the enactment of the Truth in Sentencing Act, S.C. 2009, c. 29, which came into force in February 2010, it was not uncommon for an offender to be granted 2:1 credit for time spent in pre-sentence detention. This was in view of the fact that the offender was in custody while still presumed innocent, to reflect the lack of programming and the fact that this time was not attributable to eligibility for parole.

[51] These offences were committed in 2008 prior to the Truth in Sentencing Act. The lawyers for both the Crown and Defence therefore agree that Mr. Sadikov should be given credit at the rate of 2:1 for time spent in pre-sentence custody. His sentence is therefore reduced by two years and nine months or 33 months.

[52] On the agreement of counsel, Mr. Sadikov’s sentence is further reduced by twelve months to take into account the one year he has already served for trafficking cocaine pursuant to this same police investigation.

Net Remaining Sentence

[53] Mr. Sadikov’s net remaining sentence is therefore 39 months.

Ancillary orders

[54] On the consent of both parties,

(a) Mr. Sadikov shall provide a sample of his DNA pursuant to section 487.051(4) of the Criminal Code; and

(b) Mr. Sadikov is prohibited from possessing any firearm or other weapon listed in section 109 of the Criminal Code for life.

Thorburn J.

Date: July 6, 2015

COURT FILE NO. CR-14-90000125-0000
DATE: 20150706

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

SADYK SADIKOV

REASONS FOR SENTENCE

Thorburn J.

Released: July 6, 2015