CITATION: R v. Igbinoba, 2015 ONSC 7492
COURT FILE NO.: CV-13-91-00
DATE: 20151201
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DAVID IGBINOBA and EWAH GODWIN
Defendants
L. MacKenzie for the Crown
A. Akinyemi for Mr. Igbinoba
E. Ghebrai for Mr. Godwin (Applicant)
HEARD: November 17, 2015
RULING ON DEFENCE APPLICATION TO HOLD A JURY INQUIRY AND REASONS FOR SENTENCE
RICCHETTI J.
Table of Contents
OVERVIEW... 3
THE FACTS. 3
Circumstances of the offence. 3
The Jury Verdict 5
Communications between Crown Trial Counsel and Juror #6. 5
CONCLUSION OF THE APPLICATION TO HOLD AN INQUIRY.. 6
REASONS FOR SENTENCE.. 8
Circumstances of Mr. IGBINOBA.. 8
Circumstances of Mr. GODWIN.. 9
Impact on the Community. 10
LEGAL PARAMETERS. 10
POSITIONS OF CROWN AND DEFENCE.. 11
CASE LAW... 11
Conspiracy to Import /Importing Heroin. 11
Possession for the Purpose of Trafficking. 13
MITIGATING AND AGGRAVATING FACTORS. 14
Mr. Igbinoba. 14
Mr. Godwin. 14
PRINCIPLES OF SENTENCING.. 16
REASONS. 17
The Appropriate Range for the Importation of Heroin. 17
Importing. 18
Mr. Igbinoba. 18
Conspiracy to Import 19
Mr. Igbinoba. 19
Mr. Godwin. 20
Possession for the purpose of trafficking. 20
Mr. Igbinoba. 20
Mr. Godwin. 21
ANCILLARY ORDERS. 21
PRE-SENTENCE CUSTODY.. 23
Mr. Igbinoba. 23
Mr. Godwin. 23
FINAL DECISION.. 24
OVERVIEW
[1] Mr. Godwin brings an application requesting that this court hold an inquiry with Juror #6. This application is dismissed for the reasons that follow.
[2] On June 19, 2015, Mr. Igbinoba was found guilty of importing heroin, conspiracy to import heroin and possession of heroin for the purpose of trafficking and Mr. Godwin was found guilty of conspiracy to import heroin and possession of heroin for the purpose of trafficking. These reasons set out the sentence imposed on Mr. Igbinoba and Mr. Godwin.
THE FACTS
Circumstances of the offence
[3] A package was dispatched from Thailand to Canada by courier. It contained heroin; approximately one kilogram. The heroin has a value of up to $340,000 depending on the method of distribution. The package was from “Emma” at the Grand China Princess Hotel, Thailand addressed to “Raymond James” at 920 -270 Redale Blvd (actually Rexdale Blvd.), with a telephone number of 647 501 9021. A police search disclosed no such telephone number and no information regarding “Raymond James”.
[4] The Rexdale address is a storage facility. A storage unit was rented by Mr. Igbinoba on May 26, 2011 in the name of Joy Asazee with two telephone numbers of 647 770 5051 and 647 890 0576. The cell phone numbers were associated with three different names, none of which were Mr. Igbinoba. Mr. Igbinoba opened a second storage unit and, eventually, a mailbox using the same contract information.
[5] On August 11, 2011, at approximately 10:45 a.m. the storage facility called 647 890 0576 and left a message that a package had arrived. Mr. Igbinoba returned the call, advised he would pick up the package, left work and went to the storage facility. Mr. Igbinoba arrived in a vehicle not registered in his name, paid for the package that was not addressed to him and left with the package.
[6] After telephone calls between the two offenders, at 12:15, Mr. Igbinoba pulled over to the shoulder of Highway 27. At 12:19 Mr. Godwin arrived in his vehicle and stopped behind Mr. Igbinoba's vehicle. Mr. Igbinoba got out of his vehicle with the package, gave the package to Mr. Godwin and returned to his vehicle. Mr. Igbinoba was stopped by the police. A $2,000 roll of cash was found between the driver's seat and the door.
[7] Mr. Godwin was also stopped. His vehicle was registered in his company's name. On his seat was a cell phone. The number of the cell phone was 647 502 9021. There is one digit in this telephone number which is different from the cell’s telephone number shown on the package’s addressee. Mr. Godwin's cell phone was also in the name of a third party - whether a fictitious name or not is unknown. There were several contacts with persons and references to packages from Thailand on Mr. Godwin’s cell phone. I am satisfied beyond a reasonable doubt that the telephone number of the addressee on the package from Thailand had Mr. Godwin's telephone number on it - subject to the mistake of one digit. I conclude this because of the fact that the actual telephone number on the package had no actual user associated with it, Mr. Godwin had other connections with Thailand on his cell phone and Mr. Godwin eventually took possession of the package from Mr. Igbinoba. It is the only reasonable inference to be drawn from the uncontested evidence at trial. I am satisfied beyond a reasonable doubt that the package from Thailand was meant for Mr. Godwin.
[8] A search was conducted at Mr. Godwin's home. The police found a digital scale, typically used for measuring small amounts of drugs for trafficking, and a small amount of heroin. The police also seized Mr. Godwin's bank account statements which showed regular deposits of cash.
The Jury Verdict
[9] A trial with a jury was heard on May 27, 28, 29, 2015 and June 1, 2, 3, 5, 8, 9, 10, 11, 15, 16, 17, 18, 2015. After deliberations, on June 19, 2015 Mr. Igbinoba and Mr. Godwin were found guilty of the offences charged. The jury was discharged and a sentencing hearing date was selected.
Communications between Crown Trial Counsel and Juror #6
[10] In early July, 2015, Crown counsel (not the Crown trial counsel) forwarded to me a hand written letter dated June 22, 2015 from Juror #6, essentially thanking Crown trial counsel for selecting her and the experience of the trial. In addition, Crown counsel included all subsequent email communications between Juror #6 and Crown trial counsel. Of particular note is a July 4, 2015 8:03 a.m. email from Juror #6 which starts with "I'm hoping this is you!”
[11] A copy of my letter and all the communications between Juror #6 and Crown trial counsel were sent to Defence counsel and marked as Exhibit A.
[12] Counsel for Mr. Godwin brought an application seeking that I undertake an enquiry of Juror #6. Initially, Counsel for Mr. Godwin suggested that Juror #6 be asked "when the partiality with Mr. Godwin started" and whether she had discussed this with other members of the jury. After some discussion about the leading nature of the proposed first question, Counsel for Mr. Godwin suggested a modified question such as "when Juror #6 felt a connection with Crown trial counsel". While less leading, this question remains a leading question.
[13] The Crown opposes any inquiry.
CONCLUSION OF THE APPLICATION TO HOLD AN INQUIRY
[14] A trial judge's jurisdiction after a jury verdict is very limited as a trial judge is functus officio with respect to the verdict. See R. v. Burke [2002] S.C.R. 857.
[15] When appropriate, the trial judge has discretion to hold a narrow inquiry so as to create a record for to the Court of Appeal. See Burke paras 68-76 and R. v. Phillips, 2008 ONCA 726 at para 47.
[16] For the following reasons, I decline to exercise my discretion to hold an inquiry.
[17] It is clear to me that there were no communications between Juror #6 and Crown trial counsel before the verdict was rendered. Defence counsel do not suggest there were. As a result, any inquiry would seek to explore areas of what occurred prior to the verdict on a “feeling” or “emotional” level. For example, what impressed the juror, the degree she was "impressed" or whether this resulted in "feelings" for Crown trial counsel and, if so, what feelings. Necessarily by implication, to thereafter embark upon an inquiry to determine whether the degree of her "thoughts" of or "feelings" for Crown trial counsel was such that it might or might not have caused her to disregard her oath to judge the accused without bias, prejudice or partiality. This inquiry would necessarily lead to questions why Juror #6 decided this case the way she did.
[18] Jury deliberations or matters which affect the juror's "minds, emotions or ultimate decision" cannot be the subject matter of the inquiry. See R. v. Sawyer 2001 SCC 42 at para 77. Whether Juror #6 was "impressed" with or had "feelings" for Crown trial counsel's legal ability, or other attributes, and what, if any impact this might have had on her solemn decision as a juror, is not an appropriate or a fruitful line of inquiry. I note that in jury trials, many counsel try to form some "connection" to a juror(s) through their manner, tone of voice, smiles and so forth, so that they might be more persuasive and their arguments more compelling to the juror(s). There is nothing wrong with this. It is part of the "art of persuasion" that occurs in every jury trial and throughout everyday interactions in business and socially. Surely, an enquiry along this line as to what or how the juror's mind was impacted by her views of Crown trial counsel would be an ambitious and impossible goal as a means to ascertain a particular juror's deliberative process, decision making and ultimately, was this a "true verdict"?;
[19] There is a strong presumption that jurors carry out their solemn oath or affirmation. See R. v. Pannu 2015 ONCA 677 at par 61. Whether or not Juror #6 was "impressed" with or had "feelings" for Crown trial counsel, there is no evidence any of the other 11 other jurors (who also found the accused guilty) knew of or were impacted by Juror #6's feelings.
[20] Approaching the issue from a different perspective – did the Juror #6’s impression or feelings for the Crown trial counsel that created a reasonable apprehension of bias in the verdict that warrants investigation? In my view, the same difficulties arise with such a proposed inquiry. That is, absent any communications between Juror #6 and the Crown trial counsel, we are left to assess the degree of Juror #6’s “impression” or “feelings” and whether that would amount to a reasonable apprehension of bias.
[21] I see nothing to be gained by holding an inquiry to create a record in these circumstances. Defence application is dismissed.
REASONS FOR SENTENCE
Circumstances of Mr. IGBINOBA
[22] Mr. Igbinoba is 48 years old. He was raised in a middle class family. His family came to Canada in 1997 because of the civil unrest in Nigeria. There is nothing unusual or troubling with his past.
[23] At the time of the offence, Mr. Igbinoba had a good job as a forklift driver.
[24] Mr. Igbinoba has two children with his prior partners; the youngest is 13 years old. He remains in contact with her despite the fact she lives in Winnipeg with her mother. Mr. Igbinoba provides some financial support for his daughters.
[25] He is currently married but has no children from this relationship.
[26] Mr. Igbinoba was diagnosed with lymphoma in 2006 but appears to have made a full recovery.
[27] Mr. Igbinoba has several driving convictions (2 impaired and 4 driving while disqualified from 2001 to 2010) and a theft under conviction in 2009.
[28] Mr. Igbinoba is a member of a local church and, during the sentencing hearing members of the church's congregation were present to show their support for Mr. Igbinoba.
[29] A number of Mr. Igbinoba's friends have also expressed support to the probation officer who prepared the Pre-Sentence Report.
[30] Mr. Igbinoba is only remorseful to the extent the charges and conviction have had on his children and wife.
Circumstances of Mr. GODWIN
[31] Mr. Godwin is 46 years old. Mr. Godwin immigrated to Canada in 1994. He was married in 1995 but separated in 2000. He has one 11 year old daughter who resides in Columbia with her mother.
[32] He has no prior criminal convictions.
[33] The rest of the Pre-Sentence Report is lacking of any relevant or detailed information. There is no regular or long term employment disclosed except that he incorporated a moving company but there is no information regarding the business, if any, carried on by this company.
[34] There were no personal references to which the probation officer could speak.
[35] There is no evidence of any support from family or friends.
[36] There is simply no other information regarding Mr. Godwin
Impact on the Community
[37] The devastating impact of heroin to our society was best described in R. v. Sidhu, 2009 ONCA 81
[10] Be that as it may, as this court explained in R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786, [1996] O.J. No. 448, 104 C.C.C. (3d) 542 (C.A.), at p. 791 O.R., at p. 547 C.C.C., concerns for "the plight of many couriers" must "give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs". And lest there be any doubt about it, heroin represents the worst of the hard drugs.
[12] .....Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs -- it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society":....
LEGAL PARAMETERS
[38] The maximum sentence for these offences are:
i. Conspiracy to import and importing heroin - up to life (s. 6 Controlled Drugs and Substances Act and 465 (1) (c) Criminal Code); and
ii. Possession for the purpose of trafficking - up to life (s. 5 Controlled Drugs and Substances Act).
POSITIONS OF CROWN AND DEFENCE
[39] The Crown seeks a period of incarceration of 15 years, together with a s. 109 prohibition order and a DNA order.
[40] Counsel for Mr. Igbinoba submits a fit sentence is between 6-8 years. Counsel takes no issue with the ancillary orders requested.
[41] Counsel for Mr. Godwin submits a fit sentence is between 7-9 years. Counsel takes no issue with the s.109 prohibition order but opposes the DNA order.
[42] Both offenders seek credit for pre-sentence custody.
CASE LAW
Conspiracy to Import /Importing Heroin
[43] The leading case is Sidhu. In that case, the offender pleaded guilty to importing 9.56 kilograms of high grade heroin. There were no mitigating factors for the offender except for no criminal record. The Court of Appeal imposed a 14 year 9 month period of incarceration. As to what constitutes a fit and proper sentence, the Court of Appeal stated:
[14] 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 12-to-17-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 (see para. 20, below).
[15] That range of sentence may seem harsh to some, but it is necessary to protect our country and our citizens from the ravages of heroin. Those who would engage in its importation must know that they will pay a heavy price.
[16] In that regard, some clarification is needed to address the significance, if any, of couriers, like the respondent, who purposefully shut their eyes to the nature and quantity of the illicit substance they are importing. [page613]
(emphasis added)
[44] In R. v. Mensah (2003) 2003 57419 (ON CA), 170 O.A.C. 244, the Court of Appeal determined a fit sentence for the importation of approximately 1 kilogram of heroin was 9 years. There is no information regarding the offender in that case.
[45] In R. v. Chan, 2003 52165 (ON CA), [2003] OJ No. 3233, the Court of Appeal upheld a 10 years sentence for the attempted importation of 6 kilograms of heroin.
[46] In R. v. Hamilton, 2004 5549 (ON CA), [2004] OJ No. 3252, the Court of Appeal dealt with the relevance of purity of the controlled substance imported, in that case, the importation of cocaine. The purity of the controlled substance imported appears to be not particularly significant to what constitutes a fit sentence as compared to the overall weight of the contraband imported:
[151] I agree with the trial judge that the purity of the cocaine imported, while usually not known to the courier and therefore irrelevant to personal culpability, can have some effect on the seriousness of the specific offence (para. 174). The purer the cocaine, the wider its potential distribution, and therefore the greater the harm it may cause in the community. However, I do not think that the purity of the cocaine imported will be a particularly significant factor in assessing the seriousness of the [page44 ]offence. Certainly, there should be no mathematical-like reduction in the seriousness of the offence based on the exact purity of the cocaine. I see little difference, for the purposes of assessing the seriousness of the crime, between cocaine that is 80 per cent pure and cocaine that is 90 per cent pure.
[152] I also do not agree with the trial judge's tentative view (para. 176) that the range of sentencing referred to in Madden should be read as referring to the importation of nearly pure cocaine. The ranges set in Madden and Cunningham were based on weight. Purity was not a factor. In deciding whether a particular case fits within the Madden range or the Cunningham range, the relevant comparison is between the weights referred to in those cases and the weight of the cocaine imported in a particular case.
[153] In so holding, I do not suggest that the purity of the drug is irrelevant. If the weight of the cocaine imported brings it within the Madden range, its purity will have some relevance to the determination of where in the range the sentence should fall. In cases where the purity is low and the weight near the bottom end of the "a kilogram more or less" amount referred to in Madden, the offence may fall outside of the Madden range entirely.
Possession for the Purpose of Trafficking
[47] The Court of Appeal in R. v. Bajada, 2003 15687 (ON CA), [2003] O.J. No. 721 (C.A.) held that importation is a more serious crime than trafficking in a controlled substance ;
[10] The offence of importing cocaine has generally been treated as a more serious offence than the offence of possession for the purposes of trafficking. The trial judge made no finding as to the appellant’s relative position in the drug hierarchy, nor did he find that the appellant was involved in bringing the cocaine into the country. Moreover in this case the amount of cocaine involved while sizeable was not of the multi kilogram magnitude in Cunningham. The sentencing judge appears to have erred in principle in using these importing cases as a sentencing benchmark. It is therefore incumbent on this court to impose a fit sentence.
[48] In R. v. Shahnawaz, 2000 16973 (ON CA), [2000] OJ No. 4151, the Court of Appeal determined that a fit and proper sentence for trafficking in approximately one kilogram of heroin was 9-12 years.
[49] In R. v. Yung Chan, (2003) 2003 52165 (ON CA), 66 OR (3d) 577 the Court of Appeal upheld a 10 year sentence for possession for the purpose of trafficking of approximately 6 kilograms of heroin.
[50] In R. v. Nguyen, 1996 2487 (ON CA), [1996] OJ 2593, the Court of Appeal increased a sentence to 8 1/2 years for trafficking in one pound of heroin while a second accused received a sentence of 6 years due to his guilty plea and cooperation with the police. Similarly, in R. v. Ramos, 2014 ONSC 6822 the court imposed sentences of 8 years for trafficking in 1/2 kilogram of heroin.
MITIGATING AND AGGRAVATING FACTORS
Mr. Igbinoba
[51] The mitigating factors for Mr. Igbinoba are:
- he has no prior drug related convictions; and
- he has the support of his family and friends, making rehabilitation a more significant consideration.
[52] The aggravating factors for Mr. Igbinoba are:
- this was approximately one kilogram of heroin;
- this was a very sophisticated method of importation scheme as Mr. Igbinoba used third party names to arrange for a storage facility rental, telephone numbers and mailbox. Further, the vehicle used was registered to a third party. I am satisfied beyond a reasonable doubt this offence was carried out in this manner by Mr. Igbinoba to avoid personal exposure and liability if the importation scheme were discovered; and
- Mr. Igbinoba carried out his role for personal financial gain.
Mr. Godwin
[53] The sole mitigating factor for Mr. Godwin is that he has no criminal record.
[54] The aggravating factors for Mr. Godwin are:
- this was approximately one kilogram of heroin;
- this was a very sophisticated method of importation of heroin through the use of a courier, false or third party names on the package, recipient, mail box, cell phone. Mr. Godwin used a cell phone registered to a third party. The transfer of the package was done on a busy highway at the side of the road. All of this was done to avoid detection by the police;
- Mr. Godwin had a connection with Thailand and his cell telephone number (except for the one digit described above) was the package's addressee's telephone number;
- the importation was done for personal financial gain;
- he was the recipient of the package of heroin retrieved by Mr. Igbinoba; and
- he had a digital scale (typically used for weighing drugs) and a small amount of heroin at his home, demonstrating a greater connection/involvement with heroin.
[55] There is nothing in the record for either Mr. Igbinoba or Mr. Godwin to ascertain whether rehabilitation is possible or likely.
PRINCIPLES OF SENTENCING
[56] S. 10 of the Controlled Drugs and Substances Act provides:
- (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.
[57] The Criminal Code provides:
- The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(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 or 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,
shall be deemed to be aggravating circumstances;
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
REASONS
The Appropriate Range for the Importation of Heroin
[58] There is no dispute that denunciation, general and specific deterrence are the primary and overriding factors in sentencing for the importation of heroin or conspiracy to import heroin.
[59] I am not persuaded that there is any evidence that the purity of the heroin in this case (42%) is low grade heroin or of such a lower purity as to have any material impact on what constitutes a fit and proper sentence in this case.
[60] I accept Defence counsel's submissions that the sentencing range for importing heroin in Sidhu of 12 - 17 years is higher than what is appropriate in the circumstances of this case given the weight of heroin imported was approximately one kilogram. Defence counsel suggested that the appropriate range was 6 - 12 years - primarily based on the importation of approximately one (1) kilogram of the heroin.
[61] In paragraph 20 of Sidhu, the Court of Appeal reviewed some of the cases relating to the importation of heroin. If you eliminate the cases where the importation was the importation of multiple kilograms of heroin, the cases considered by the Court of Appeal were:
......R. v. Mostafalou (October 21, 1992), Toronto, Doc. No. C11611 (Ont. C.A.), in which a sentence of nine and a half years, in addition to six-and-a- half months of pretrial custody, was upheld for importing 489 grams of heroin; R. v. Anaso, [2002] O.J. 4452 (C.A.), where the accused received a sentence of eight years, in addition to two years and four months' credit for pretrial custody, for her courier-like role in attempting to export 1.13 pounds (512 grams) of heroin; R. v. Mensah, 2003 57419 (ON CA), [2003] O.J. No. 1096, 170 O.A.C. 244 (C.A.), leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 207, where the accused received a global sentence of nine years, less credit for pretrial custody of 20 and a half months, for importing 1.038 kilograms of heroin; R. v. Jantuah, [1993] Q.J. No. 2265, 62 Q.A.C. 19 (C.A.), where the Quebec Court of Appeal upheld a sentence of ten years, in addition to six months' pretrial custody, for the importation of 475 grams of heroin; R. v. Tsoi, [1982] A.J. No. 811, 36 A.R. 606 (Q.B.), where the [page614] co-accused courier was sentenced to ten years after pleading guilty to importing two pounds (907 grams) of heroin;.......
[62] Having considered the authorities, absent exceptional or extenuating circumstances, the appropriate range of sentence for the importation of approximately 1 kilogram of heroin is approximately 9 to 13 years.
Importing
Mr. Igbinoba
[63] The fact that Mr. Igbinoba was the "conduit" for the importation of the heroin does not assist him. Like a courier, his culpability remains high for the importation of heroin. In this case, Mr. Igbinoba went to great lengths to arrange for the receipt of the heroin using false names on anything connected with the receipt or transfer of the heroin. This role is much more significant than simply a courier’s role. Mr. Igbinoba facilitated and arranged for the heroin to get to the next person up the chain of distribution of heroin into our society. There is no doubt that Mr. Igbinoba was an active participant in the importation of the heroin. In conclusion, his role was very significant in this importation of heroin and his culpability is high.
[64] On mitigation, there is little except the lack of a criminal record relating to drugs and the support of family and friends.
[65] I am satisfied that a fit and proper sentence for this offence and this offender is 11 years.
Conspiracy to Import
[66] Section 465(1)(c) of the Criminal Code states that a convicted person is liable to the same "punishment" upon conviction for conspiracy to commit an offence as he would be if convicted of the offence itself.
[67] It is important to note that the conspiracy was successful but for the intervention of the police. There is nothing in the facts of this case, nor has anything been suggested by counsel, that the conspiracy offence should result in a lower sentence than the actual importation of the heroin in this case.
[68] In these circumstances, a fit sentence for the conspiracy to import heroin would be the same as the sentence for the importation of the heroin – 11 years.
Mr. Igbinoba
[69] The essence of the offence of conspiracy to import heroin is the agreement between Mr. Igbinoba and Mr. Godwin to import heroin into Canada. Keinapple does not apply.
[70] However, I am satisfied that the seriousness and appropriateness of this offence is directly related to, and brings with it, a similar sentence to the importation of heroin.
[71] As a result, I am satisfied that a fit and proper sentence for this offence and this offender is 11 years, to be served concurrently with the importing sentence.
Mr. Godwin
[72] Mr. Godwin's role in the conspiracy to import was greater than Mr. Igbinoba and as a result his culpability is higher:
a) Mr. Godwin had connections with Thailand as seen from his telephone contacts;
b) Mr. Godwin's telephone number (but for the one digit) was the recipient of the package;
c) Mr. Igbinoba picked up the package and delivered it to Mr. Godwin. Mr. Godwin ended up with the heroin. Mr. Igbinoba with the $2,000; and
d) Mr. Godwin had the digital scale and a small amount of heroin at his home.
[73] The evidence establishes beyond a reasonable doubt that Mr. Godwin was the more senior person involved in the importation of heroin. The evidence is entirely and only consistent with this conclusion.
[74] Given Mr. Godwin's role in the conspiracy to import the heroin, a fit and proper sentence is 12 years.
Possession for the purpose of trafficking
Mr. Igbinoba
[75] As set out in Shahnawaz, the range for the possession of heroin for the purpose of trafficking is 9 to 12 years.
[76] Given the quantity of heroin, the lack of many or significant mitigating factors, Mr. Igbinoba's significant and participatory role in the importation of heroin and transferring the heroin to Mr. Godwin within a short time, a fit and proper sentence for the possession of approximately one kilogram of heroin for the purpose of trafficking is 9 years, to be served concurrently with the importing sentence.
Mr. Godwin
[77] As set out in Shahnawaz, the range for the possession of heroin for the purpose of trafficking, the range is 9 to 12 years.
[78] Given the quantity of heroin, the lack of many mitigating factors, Mr. Godwin's role as the more senior participant or principle in the importation and the receipt of the heroin from Mr. Igbinoba, a fit and proper sentence is 10 years, to be served concurrently with the conspiracy to import sentence.
ANCILLARY ORDERS
[79] Mr. Igbinoba makes no submission with respect to the ancillary orders requested by the Crown. So ordered.
[80] Mr. Godwin's counsel acknowledges that the weapons prohibition order is a primary designated offence and should be ordered. So ordered.
[81] Mr. Godwin's counsel submits there is no reasonable basis for granting a DNA order in the circumstances of this case. Importing is a secondary designated offence. The relevant Criminal Code provision are:
487.051 (3) The court may, on application by the prosecutor and if it is satisfied that it is in the best interests of the administration of justice to do so, make such an order in Form 5.04 in relation to
(b) a person who is convicted, ...... of an offence committed at any time, including before June 30, 2000, if that offence is a secondary designated offence when the person is sentenced or discharged.
In deciding whether to make the order, the court shall consider the person’s criminal record, whether they were previously found not criminally responsible on account of mental disorder for a designated offence, the nature of the offence, the circumstances surrounding its commission and the impact such an order would have on the person’s privacy and security of the person and shall give reasons for its decision.
[82] In R. v. F. (P.R.), 2001 21168 (ON CA), 2001 57 OR (3d) 475 the Court of Appeal made the following comments regarding DNA orders:
[6]……In my view, given an adult offender's diminished expectation of privacy following conviction, the minimal intrusion into the security of the person in the ordinary case and the important interests served by the DNA data bank, it will usually be in the best interests of the administration of justice for the judge to make the order.
[11]…. Thus, in my view, the Crown bears an evidential burden to produce sufficient information to raise the issue. The trial judge must then be satisfied, after weighing and balancing all the relevant considerations, that the order should be made.
[83] Mr. Godwin has no prior criminal record. However, the sophistication of these offences, his possession of drugs and drug related instruments at his home, along with the connections regarding Thailand and substantial and recurring cash deposits, leads me to conclude that it is in the best interests of the administration of justice to make the DNA order requested.
PRE-SENTENCE CUSTODY
Mr. Igbinoba
[84] Mr. Igbinoba has been in custody for 180 days (in total for pre-bail custody and post conviction custody). Applying the usual 1:1.5 credit. Mr. Igbinoba has credit for 270 days. I shall round this out to 3/4 (three quarters) of one year – 8 months.
Mr. Godwin
[85] Mr. Godwin has been in custody for 186 days (in total for pre-bail custody and post conviction custody). Applying the usual 1:1.5 credit. Mr. Godwin has credit for 280 days. I shall round this out to 8 ½ months.
FINAL DECISION
[86] Mr. Igbinoba is sentenced as follows:
a) for Importing Heroin:
- 10 years 4 months (after credit for pre-sentence custody);
b) for Conspiracy to Import heroin:
- 10 years 4 months (after credit for pre-sentence custody) to be served concurrently with sentence in (a);
c) Possession of Heroin for the purpose of Trafficking:
- 8 years 4 months (after credit for pre-sentence custody) to be served concurrently with sentence in (a);
d) Ancillary Orders:
- DNA Order; and
- s. 109(2) Prohibition Order.
[87] Mr. Godwin is sentenced as follows:
a) for Conspiracy to Import heroin:
- 11 years 3 1/2 (three and a half months) after credit for pre-sentence custody;
b) Possession of Heroin for the purpose of Trafficking:
- 9 years 3 1/2 months (two and a half months) after credit for pre-sentence custody, to be served concurrently with sentence in (a);
c) Ancillary Orders:
- DNA Order; and
- s. 109(2) Prohibition Order.
L. Ricchetti J.
Released: December 1, 2015
CITATION: R v. Igbinoba, 2015 ONSC 7492
COURT FILE NO.: CV-13-91-00
DATE: 20151201
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
DAVID IGBINOBA and EWAH GODWIN
Defendant
RULING ON DEFENCE APPLICATION TO HOLD A JURY INQUIRY AND REASONS FOR SENTENCE
Ricchetti J.
Released: December 1, 2015