R v. Merelles, 2015 ONSC 5787
COURT FILE NO.: CR-12-90000434-0000
DATE: 20150130
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Alberto Merelles
Defendant/Applicant
Kerry Benzakein, for the Respondent, Her Majesty the Queen
R. Fedorowicz. for the Defendant/Applicant
HEARD: January 27, 2015
REASONS FOR SENTENCE
Low J. (Orally)
[1] Mr. Merelles was convicted of possession of heroin for the purpose of trafficking, possession of cocaine for the purpose of trafficking and possession of proceeds of crime. He launched several pre-trial applications. When the applications were dismissed, the prosecution was not contested on the merits.
[2] The quantity of heroin involved was 989.92 grams, with a value in the range of $80,000 to $110,000 per kilo if sold in bulk and a value of $240 - $350 per gram if sold by gram or a total value in the range of $237,000 to $346,000 if sold by the gram. At arrest, Mr. Merelles had 20 prepared “decks” of heroin of less than 0.2 grams each.
[3] The quantity of cocaine involved was 218.54 grams the total value of which is in the range of $10,000 to $12,500 if sold by the ounce (28 grams), in the range of $12,500 to $15,500 if sold by the 8 ball (3.5 grams) or $17,500 to $22,000 if sold by the gram.
[4] Mr. Merelles was in possession of proceeds of crime of $19,990 in Canadian funds and $150 in U.S. funds.
[5] Mr. Merelles is a 37 year old Canadian born contractor. He lives with his parents who are immigrants from Spain. He is a member of a close and supportive family. Mr. Merelles is a talented craftsman as a home renovator and has had considerable recognition and success in his community. A number of letters have been submitted from members of the community describing Mr. Merelles’s altruistic acts, his community spirit, his skills and his entrepreneurship. Mr. Merelles has no criminal record.
[6] Mr. Merelles therefore can be said to enjoy high regard in his community and has demonstrated a clear ability to succeed in legitimate enterprises. Those circumstances suggest a good prospect of rehabilitation.
[7] On the other hand, the same circumstances have a second face; the offences of which Mr. Merelles has been convicted have their genesis not in need, but in greed. Unlike the scores of young males who appear before this court mired in poverty, lacking in proper parenting, lacking in education and skills and lacking in prospects and, unlike the addicts who turn to the drug trade to keep themselves in supply of the substances upon which they have become dependent, Mr. Merelles has good family, marketable skills, and, on the basis of the material he has filed on this sentencing, a good business reputation.
[8] In my view, the main aims of sentencing in this case are denunciation and deterrence and primarily specific deterrence given that this is a first conviction.
[9] That heroin is a pernicious substance that causes misery and is the ruination of lives and families is a fact generally known. It is said on Mr. Merelles’ behalf that there is no evidence that he personally trafficked heroin to addicts and that there is no proof that he would be directly aware of the effects of the drug. In my view, for purposes of considering whether Mr. Merelles was aware of the effects and gravity of the distribution of the substances into the public, it matters not whether he trafficked to end users or was a wholesale distributor. Given the quantity of substance found in his possession, he had the capacity to do either in that he had the ability to sell in user doses (such as the decks found on him) and in quantities intended for further division and resale. Mr. Merelles had the ability to carry on a vertically integrated operation from fairly high level distribution to street sale, all of which was under his control. And significantly, in my view, the quantity of substance in his possession was sufficient to cause very substantial harm in the community.
[10] In recent cases, the Court of Appeal has approved sentence ranging from 8 to 12 years for conviction of possession of similar quantities of heroin to that at bar (see R. v. Ngo, [2000] O.J. No. 4881 (C.A.) , R. v. Shahnawaz, 2000 CanLII 16973 (ON CA), [2000] O.J. No. 4151 (C.A)). The Crown seeks imposition of a 12 year sentence. Defence submits that a sentence of 7 to 8 years is appropriate in these circumstances.
[11] In heeding the principle of restraint, I take into account the fact that Mr. Merelles has no criminal record and, apart from the offences for which he has been convicted, appears to have been a productive person in the community.
[12] Counterbalancing that however, is the gravity of the offences which, when considering the proportionality principle, would weigh in favour of a sentence at the higher end of the range. Mr. Merelles was in possession of large quantities both of heroin and of cocaine. These drugs wreak havoc on society. Those engaged in trafficking them are purveyors of addiction and death. The only inference that I can draw as to why he committed the offences is that Mr. Merelles was moved by greed. As well, Mr. Merelles put his parents at risk by storing drugs in their house. He put his girlfriend and her family at risk by storing his drugs at their house.
[13] I therefore consider the cases to which I have been referred by counsel for the defence relating to couriers to be unhelpful. See R. v. Mensah, 2003 CanLII 57419 (ON CA), [2003] O.J. No 1096 (C.A.) and R. v. Giammarco, [2012] O.J. No 1053 related to couriers. Mr. Merelles was no mere courier. He was the entrepreneur.
[14] Counsel for the defendant has also referred me to R. v. Le, [1996] O.J. No. 6424 where Dilks J. imposed a sentence of 5½ years following a guilty plea for trafficking 27 ounces of heroin. This is an old case and very different on the facts. There was a guilty plea which was clearly a mitigating factor. The defendant was a first offender, in poor health, and had four children to support on social assistance. She had as well shown great remorse. Apart from the fact of this being a first conviction, there are no similarities between Le and the case at bar.
[15] In arriving at a sentence, I take into account as a mitigating factor the fact that the defendant did not contest the prosecution on the merits. A modest amount of time and public resources were saved.
[16] In my view, an appropriate sentence to denounce the conduct and to deter Mr. Merelles from returning to the trade in heroin and cocaine is 10 years.
[17] I take into account however, the bail conditions under which Mr. Merelles has lived since his arrest, a period of some 4 years. He has for the larger part of that period been under a 10 p.m. curfew with an ability to go out of his home only in the presence of a surety. I would note however, that the pre-trial and pre-sentence periods have been prolonged in part as a result of adjournments requested by the defence. Although the bail terms have imposed a limit on Mr. Merelles’ liberty, they have nevertheless enabled him to carry on his business with significant success as is evidenced by the letters and publicity items he has filed on the sentencing submissions. I would therefore give a credit of 6 months in this respect. The net global sentence will therefore be 9 years and 6 months.
[18] The request by the Crown for forfeiture of the seized funds of $19,990 cad and $150 U.S. is granted. There will be an order to harvest DNA and a s. 110 - gun prohibition.
___________________________ Low J.
Date of reasons for sentence: January 30, 2015
Date of Released: September 17, 2015
COURT FILE NO.: CR-12-90000434-0000
DATE: 20150130
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Alberto Merelles
Defendant/Applicant
REASONS FOR SENTENCE
Low J.
Date of reasons for sentence: January 30, 2015
Date of Released: September 17, 2015