R. v. Buttazzoni and Ramlall, 2016 ONSC 1287
CITATION: R. v. Buttazzoni and Ramlall, 2016 ONSC 1287
COURT FILE NO.: CRIMJ(F) 643/13
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JAMES BUTTAZZONI AND
RAMPERSAUD RAMLALL
Defendants
H. Akin and P. Larmondin, for the Crown
James Carlisle, for James Buttazzoni
Mukesh Bhardwaj and Paul Dlalishal, for Rampersaud Ramlall
HEARD: January 25 and 26, 2016
REASONS for SENTENCE
DALEY RSJ.
[1] Following a judge alone trial, the offenders James Buttazzoni and Rampersaud Ramlall were each found guilty of the offences of conspiracy to import 112 kg of cocaine into Canada and of possession of cocaine for the purpose of trafficking: see R. v. Buttazzoni, et al, 2015 ONSC 6411.
[2] The offenders now must be sentenced for these very serious crimes.
Factual Overview
[3] A ship transporting a sea container carrying the cocaine traveled from Guyana to St. John, New Brunswick, and arrived there on May 28, 2012. The shipment of cocaine was detected and identified by police authorities in St. John, New Brunswick, and a controlled delivery of the shipment was undertaken by the police. The cocaine was hidden inside wooden planks in pallets located in the sea container. The container also held a large quantity of canned and prepared food products. Following the seizure and examination of the container by police authorities, a small quantity of cocaine was left within the container as part of the controlled delivery.
[4] The container was transported by rail from New Brunswick to a rail yard in Mississauga, Ontario, where the container was picked up and transported to a storage facility. The offender Buttazzoni and one Lawrence Dalloo, who were found to be co-conspirators in the plan to import the cocaine into Canada, took physical delivery of the shipping container holding the pallets at the storage facility in Mississauga.
[5] The offender Ramlall, who was engaged in communications with Dalloo and was found to be a co-conspirator with respect to the plan to import the cocaine into Canada, attended at the storage facility where he entered the container and examined and counted the pallets. Buttazzoni also entered the container and examined the pallets in the presence of Ramlall.
[6] The pallets were subsequently offloaded into a truck and transported from the storage facility to Ramlall’s residence in Whitby. Ramlall, as a party to the conspiracy to import cocaine into Canada, took actual possession and control of the pallets upon their delivery to his home, at which time they were placed within the garage. Through the entire time following the delivery of the container to the storage facility in Mississauga, the offenders, Dalloo, and others were under police surveillance and telephone and text intercepts were carried out.
[7] A police takedown was conducted at Ramlall’s residence, shortly after which the offenders Ramlall and Buttazzoni were arrested along with others including Dalloo.
[8] A sample of the cocaine that was seized from the shipping container was analyzed to be 74% pure. The cocaine, if sold at the kilogram level, had a value of approximately $3.9 million and if sold at the gram level had a value of approximately $8.9 million.
[9] The offenders Buttazzoni and Ramlall were found to be co-conspirators with Dalloo. Dalloo pled guilty to the offences of importing cocaine into Canada and possession for the purpose of trafficking. Nelson J., in her reasons on sentence following his plea, imposed a sentence upon Dalloo of 15 years in penitentiary, concurrent on both charges.
[10] The scheme by which the cocaine was transported from Guyana to Canada was an elaborate and sophisticated one. The cocaine was secreted inside the boards of the wooden pallets. The pallets were placed in the shipping container with a large quantity of canned food products. The container was shipped to Canada through the assistance of a legitimate customs broker and the container was destined for delivery to the consignee Moe’s Island Grocery, which for all purposes appears to be a legitimate business in Mississauga.
Legal Frameword
[11] Guided by the principles of sentencing as set out in ss. 718, 718.1 and 718.2 of the Criminal Code and specifically recognizing the fundamental principle of proportionality as set out in s. 718.1, the sentence to be imposed must be in keeping with the gravity of the offence and the degree of the offender’s responsibility. In addition to the guiding principles set out in the Criminal Code, a sentencing court must also take into consideration the factors outlined in s. 10 of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.
[12] The offenders have been found guilty of two most serious offences involving an extraordinarily large quantity of cocaine. The impact of cocaine upon our citizens cannot be underestimated. It is a plague on our community and impacts on all aspects of society by destroying the lives of those involved in its use as well as their families.
[13] The principles of parity and proportionality of sentences must guide the courts in establishing a just and appropriate sentence. Rehabilitation of offenders also remains one of the fundamental moral values that must be considered when setting a proper sentence: see R. v. Lacasse, 2015 SCC 64.
[14] In cases involving offences that are particularly serious, in that they cause or threaten to cause significant harm to an individual or a segment of the community, the objectives of denunciation and general deterrence will usually dominate the other objectives identified in s. 718. In the decision R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.), Doherty J.A. noted that the importation of dangerous drugs like cocaine has always been considered among the most serious crimes known to Canadian law. He further stated at para. 104:
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 52 (SCC), [1992] 3 S.C.R. 665, 77 C.C.C. (3d) 124, at pp. 693 – 96 S.C.R. , pp.143 – 44 C.C.C.
[15] It was further noted in Hamilton, at para. 105, that cocaine is not indigenous to Canada and that without the cocaine importer, there would be no cocaine problem.
[16] Finally, in Hamilton, Doherty J.A. emphasized the gravity of the crime of importing cocaine and the need to stress denunciation and deterrence even in the case of vulnerable first offenders.
[17] The degree of criminal culpability of the offender must be assessed in the course of setting a just and fit sentence, particularly in this case, in terms of the offender’s role in the conspiracy to import and traffic a controlled substance.
[18] The appropriate starting point for this consideration is that both offenders were principals in respect of both the conspiracy to import cocaine and the possession of the drug for the purpose of trafficking. This is a presumption that can be rebutted by an individual offender: see R. v. Holder, 1998 14962 (ON SC), [1998] O.J. No. 5102; R. v. Kusi, 2015 ONCA 638. Evidence establishing that the offender played a lesser role in the offences in question may be a mitigating factor to be considered on sentencing. However, a finding that the offender was a principal is not to be taken as an aggravating factor on sentencing.
[19] Sentences imposed in cases involving very large cocaine importation conspiracies and possession for the purpose of trafficking have been significant, even for first-time offenders, and have recognized the need for general deterrence and denunciation.
[20] In R. v. D’Onofrio, 2011 ONSC 195, aff’d 2013 ONCA 145, Ratushny J. sentenced the offender following a conviction of possession of 111.85 kg of cocaine for the purpose of trafficking and imposed a sentence of 15 years incarceration. Having considered several authorities for the more serious offence of importation of cocaine, the trial judge concluded that the range of sentence for such an offence was 12 to 20 years: see D’Onofrio, at para. 27.
[21] In its decision in D’Onofrio, it is notable that the Court of Appeal concluded that, although the offender was a courier, given the quantity of cocaine, which is virtually identical to the quantity involved in this case, and the offender’s prior record for the same offence, the sentence of 15 years was not manifestly outside the appropriate range.
[22] In R. v. Ambrose, 1994 1378 (ON CA), [1994] O.J. No. 1457 (C.A.), a case in which three accused were charged with conspiracy to import and traffic 22 kg of cocaine, the Court of Appeal upheld sentences of 11 years for two of the offenders and 13 years for the offender who was the lead principal in the offences. None of the offenders had a criminal record of any significance.
[23] In R. v. Malanca, 2007 ONCA 859, 88 O.R. (3d) 570, the offender was convicted of conspiracy to import and importing 270 kg of cocaine into Canada. He was a first-time offender and approximately 26 years of age. The trial judge found him to be one of the principal planners of the importation conspiracy. A life sentence was imposed at trial. However, the sentence was reduced to 19 years on appeal as the Court of Appeal concluded that a life sentence was crushing and left little room for the offender’s rehabilitation.
[24] As to the offence of possession for the purpose of trafficking, Ratushny J. in D’Onofrio at para. 29 concluded, following the review of several decisions, that the range of sentences imposed for trafficking was between 10 and 13 years in cases involving significantly smaller quantities of cocaine.
[25] In imposing a sentence of 15 years upon Dalloo, Nelson J. clearly recognized that the sentencing principles that must be considered are denunciation and deterrence. She concluded that he had a significant role in the importation scheme and as such the sentence to be imposed moved towards the higher part of the range of 12 to 20 years. His plea and genuine remorse and the impact of his incarceration on his family were considered to mitigate the aggravating factors determined.
[26] Counsel referred to several decisions from Ontario, British Columbia and Manitoba provincial, superior and appellate courts. Counsel for the offenders relied upon several decisions involving couriers and large quantities of drugs. Both of the offenders in this case were far more than mere couriers and many of the decisions referred to by their counsel are not apt to the facts in this case.
[27] Counsel for the offender Ramlall relied upon the Court of Appeal decision in R. v. Aujla, 2015 ONCA 350, which involved two offenders who were truck drivers convicted of importing cocaine and possession of cocaine for the purpose of trafficking. The cocaine had a value of $3.5 million and was hidden in the offenders’ truck which they had brought from California and into Canada through Windsor. The trial judge sentenced the offenders to 16 and 14 years in penitentiary.
[28] On appeal as to sentence in Aujla, recognizing that denunciation and deterrence are the most relevant sentencing principles to be considered, the Court found that the trial judge erred in principle and granted leave as to the sentences which were reduced to 12 and 10 years. The conviction of one of the offenders was later overturned by the Supreme Court of Canada, but the sentences imposed were not part of that appeal: see R. v. Riar, 2015 SCC 50. The result on appeal as to sentence was based on the Court’s conclusion that the trial judge made two errors, firstly by sentencing the accused as if they were high-level importers and secondly by sentencing them on the basis that they had been in a breach of trust. The Court determined that there was no evidence to support either of these conclusions.
[29] The Court of Appeal also noted that the sentences were outside the appropriate range for first-time offenders established in R. v. Cunningham (1996), 1996 1311 (ON CA), 27 O.R. (3d) 786. Counsel for the offender Ramlall submits that these principles are apt to the present case. I disagree. As discussed below, neither of the offenders was simply a first-time offender courier. The offender Ramlall was a first-time offender, but acted at a level far above that of a simple courier.
Position of the Crown
[30] With respect to the offender Buttazzoni, the Crown seeks a total sentence of 18 years for the offences of conspiracy to import and to traffic cocaine, less time spent in pre-sentence custody, along with certain ancillary orders.
[31] In respect of the offender Ramlall, the Crown seeks a sentence of 17 years for the same offences, less time spent in pre-sentence custody, along with the same ancillary orders.
Positions of the Offenders
[32] It was submitted on behalf of the offender Buttazzoni that a sentence of 7 to 10 years was appropriate, less time served in pre-sentence custody.
[33] On behalf of Ramlall, counsel submitted that the appropriate sentence would be at the lower end of the sentencing range of 12 to 20 years as determined in D’Onofrio, less time served in pre-sentence custody and with credit for time spent on house arrest bail.
The Offenders
A. Buttazzoni
[34] Buttazzoni was born July 14, 1971, and as such is currently 45 years of age. He is single and has no children.
[35] He was born and raised in Toronto, Ontario, and prior to the offences in question he had resided with his mother and sister in the family home. In the pre-sentence report filed at the sentencing hearing, the author had been advised by Buttazzoni that he had lived in Florida temporarily for the purpose of starting a real estate business, but he returned to his family’s home when the business did not take off.
[36] Notably absent from the pre-sentence report is disclosure by Buttazzoni of the fact that he was convicted of the offence of conspiracy to possess with intent to distribute more than 100 kg of marijuana, that conviction being registered on January 4, 2008, in the United States District Court in West Palm Beach, Florida. The judgment with respect to that conviction was entered in evidence at the time of the sentencing hearing. The Court sentenced him to a term of 40 months imprisonment followed by a term of supervised release for a period of four years. The supervised release was subject to the following term: “The defendant shall not unlawfully possess a controlled substance. The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment, at least two periodic drug tests thereafter, as determined by the court.”
[37] The offences which gave rise to the present convictions occurred within the period of Buttazzoni’s period of supervised release following his discharge from the Florida penitentiary.
[38] In the pre-sentence report, the offender advised that he had his high school diploma and that he had completed some courses at college towards a Business Administration Degree. He also obtained his real estate broker’s license and was employed in that field in various real estate firms. Although a release on bail would have been available to him, he remained in custody from the time of his arrest in 2012 until December 2015 as he was unable to obtain a suitable surety. He was released in December 2015 for approximately five weeks through to the sentencing hearing date, so as to allow him to spend time with his mother who was gravely ill with cancer.
[39] The offender reported to the probation officer who prepared the pre-sentence report that he did not use either drugs or alcohol and made the point that he did not even smoke cigarettes.
[40] Several letters of reference were submitted on behalf of Buttazzoni. However the authors of these letters appear to have little insight, if any, into the life of this offender and as such the letters are of little assistance to the Court in setting the appropriate sentence.
B. Ramlall
[41] Ramlall was born March 4, 1975, in Guyana. He is married with two young children. He was raised on a farm with his family in Guyana. He has had no prior convictions or involvement with the criminal justice system. He emigrated from Guyana to Canada in 2001 and he is currently sponsoring his parents as they wish to relocate to Canada as well. The offender’s brother resides in Canada, arriving a year or so following the offender.
[42] Ramlall married his wife in 2004 and although both acknowledge “ups and downs” in their marriage, sources advised the probation officer who prepared the pre-sentence report that the offender is committed to his family and in particular his two young children. His sons are four and six years of age and reside in the family home with the offender and his wife. He also has a 20 year-old daughter from a previous marriage who resides in Guyana.
[43] As to his education, he left school at 13 to begin work and through work he acquired various skills on his own. He is currently self-employed doing renovation work in recent months. At the time of his arrest he owned and operated a used car dealership which he had in business for approximately five years. He has also done work as an unlicensed mechanic and was involved in managing a garage.
[44] The offender acknowledges that he has consumed alcohol occasionally but denies ever using street drugs.
[45] His wife described him as very loving and a very good father and stated that he does everything for his boys. The offender’s inability to support his family has been troubling for him. In the probation officer’s discussions with the offender, he requested that the author include in the report his statement as follows: “I’m sorry for whatever I did. I’m wrong. I didn’t know what was going on. I did it, but I didn’t know what was happening. I’m sorry if I hurt anyone, cause problems for police or problems for the community. The way I look at it, if I could have seen this happening, I wouldn’t. I didn’t mean to do what I did.”
[46] Several reference and character letters were submitted on behalf of the offender Ramlall, including letters from his brother, brother-in-law, priest and his wife Elana Chavez. His wife described him as very hard-working and as a loving and responsible person who has a very close relationship with his young sons.
[47] His surety, his mother-in-law, also submitted a reference letter where she described the offender as a most committed father and husband and she urges that her grandsons have the opportunity to have their father back with them.
[48] On having the opportunity to speak for himself during the sentencing hearing, Ramlall demonstrated what I took to be sincere remorse and regret for his actions. He stated he was truly sorry for what he had done and that he did not wish to harm anyone, including his family. He spoke of the suffering that his wife and young children will face while he is in prison.
Analysis
[49] In determining a fit and appropriate sentence for the offenders in this case, there are several features of the offenders’ conduct and the conspiracy plan that must be examined to determine where in the range of sentences the sentence for each offender is located.
[50] The conspiracy to import the cocaine was a sophisticated one obviously involving significant planning and deliberation as evidenced by the intercepted communications, the use of legitimate businesses and facilities such as the shipping company, the broker, and the legitimate consignee of the container. Further, the method of hiding the cocaine within the pallets inside the cargo container beneath legitimate food products demonstrates a high level of sophistication and coordination among various parties.
[51] The type and quantity of drug involved is quite extraordinary, namely 112 kg of 74% pure cocaine having a value in 2012 in the range of $3.9 million to $8.9 million. This represents a significant feature of the crimes committed that must be taken into account in setting the appropriate sentence. Further, the fact that cocaine is not indigenous to Canada weighs significantly in the assessment of the seriousness of these offences.
A. Buttazzoni
(a) Mitigating Factors
[52] No mitigating factors were identified by either counsel for the offender or the Crown. Counsel for Buttazzoni simply referred to the letters of support filed with the court on his behalf.
(b) Aggravating Factors
[53] As noted above, several aggravating factors are applicable equally to the offenders, including the type and quantity of the nonindigenous drug and the inherent violent nature of the conspiracy to import and traffic cocaine. The aggravating factors which apply specifically to Buttzzoni include the threats of use of violence by Buttazzoni and his prior criminal record for a significant drug offence in the United States.
[54] As to Buttazzoni’s threats of violence, the evidentiary record is clear that when he believed that the drug transaction, as far as he and Dalloo were concerned, was in jeopardy, in a telephone conversation on June 15, 2012, at 10:39 a.m., Buttazzoni stated to Dalloo: “They don’t wanna pay bro. You gotta tell fuckin’ Teddy he’s takin’ a fuckin’ bullet now, you know what I mean.”
B. Ramlall
(a) Mitigating Factors
[55] The most significant mitigating factor in favor of this offender is that he has no prior criminal convictions or involvement with the law. Further, it appears that prior to his involvement in the conspiracy to import the cocaine and to traffic it, he was a supportive husband and father who was employed and caring for his family.
[56] Ramlall appears to have a very supportive family who unfortunately will lose both his financial and emotional support as a result of his incarceration.
[57] Ramlall also complied with his house arrest bail terms throughout and there are no outstanding charges pending.
(b) Aggravating Factors
[58] The aggravating factors outlined above with respect to Buttazzoni apply to this offender, other than the outward threats of violence which were expressed by Buttazzoni.
The Roles Of the Offenders in the Offences
A. Buttazzoni
[59] It was urged on behalf of Buttazzoni that on the evidentiary record, he was a lower level participant and did not act in any way as a lead participant in the conspiracy to import the cocaine.
[60] This submission is in no way borne out or supported by the evidence as to Buttazzoni’s involvement in the conspiracy to import, nor in the possession of the cocaine for the purpose of trafficking.
[61] Several features of the evidence support the Crown’s submission that Buttazzoni had a higher level involvement than simply that of a courier. His involvement in arranging for the container’s safe delivery and the movement of the contents of cocaine were apparent from the intercepted text and phone calls commencing on January 12, 2012.
[62] The evidence is clear and uncontradicted that Buttazzoni was actively involved in the transport of the cocaine to the storage facility in Mississauga. He had a significant financial interest in the cocaine as evidenced by his discussions with Dalloo, which are set out in my reasons for judgment at page 23 as excerpts from the telephone intercepts of June 15, 2012, at 10:39 a.m. In that phone call, Buttazzoni indicates that he is concerned that they will not receive their “two hundred grand”. In a similar vein, throughout many of the intercepts, Buttazzoni refers to he and Dalloo as “we, us, our” when making reference to their shared interest in the cocaine or the proceeds to be received from it.
[63] Buttazzoni’s anger and voiced threats of shooting “Teddy”, who I have determined is Ramlall, clearly demonstrate a financial interest in the cocaine at a much higher level than simply that of a courier or facilitator. It is particularly notable that when Buttazzoni’s concerns about the drug transaction were increasing, he indicated that he himself would go out to Whitby to Ramlall’s residence after the pallets had been transported to that location.
[64] His higher level of involvement is also clearly demonstrated in the regular communication and reporting by Dalloo to him as to the status of the container prior to its delivery to the storage facility, updates as to Dalloo’s communications with persons in Guyana, where the container originated from, and his reports to Buttazzoni with respect to the status of the cocaine after it had been taken to Ramlall’s residence in Whitby.
[65] Buttazzoni’s name was also identified as a contact person, along with Dalloo, on the contract documentation for the rental of the storage unit in the storage facility where the container was ultimately delivered. Buttazzoni and Dalloo were present at the time the container was delivered to the storage facility. Buttazzoni showed his delight in the delivery of the container by his gestures.
[66] After Ramlall arrived at the container on the day it was opened, he first entered the container and inspected the pallets, followed by Buttazzoni. Notably, Dalloo did not enter the container to inspect the pallets.
[67] All of this is consistent with Buttazzoni participating in the conspiracy at a significantly high level of involvement and financial interest, well above that of a courier. His level of participation and financial interest in the importing and distribution of the cocaine was at least equal to that of Dalloo. The evidence shows that they were working as partners with a shared interest in the safe delivery of the cocaine.
[68] The role the offender plays in a conspiracy to import cocaine or in respect of possession for the purpose of trafficking cocaine cannot constitute an aggravating factor as to sentence. However, if the offender plays a role as a very low end courier, without any involvement in the conspiracy to import or traffic and with compensation unconnected with the real value of the drug, arguably that offender’s criminal culpability would be far less than that of the offender higher up the hierarchy in the conspiracy to import and in the offence of trafficking. There is simply no evidence that Buttazzoni stands on a lower rung in the hierarchy in this importation conspiracy or with respect to the possession for the purpose of trafficking.
B. Ramlall
[69] Ramlall’s role in the conspiracy to import and in the offence of possession for the purpose of trafficking is at the higher level of the hierarchy of those involved. His criminal culpability is demonstrated by the fact that he had contact with and the trust of those in Guyana who were involved in shipping the cocaine to Canada. That level of trust is clearly demonstrated by the fact that the pallets containing the cocaine were first inspected and counted by Ramlall upon the opening of the container, and thereafter the pallets were taken to his residence in Whitby for the purpose of extracting the cocaine from the pallets. This all demonstrates a very high level of trust on the part of those in Guyana who arranged for the delivery of the drugs via the container.
[70] Notably, the seals on the container were only broken and the doors opened after Ramlall arrived and the numbers on the seals were confirmed to be the same ones as were affixed to the container prior to its shipment. Dalloo had been instructed by the Guyanese contact Singh that someone would come by and verify the seal numbers and that that would be the same person who would be retrieving the pallets. Ultimately, that person was the offender Ramlall.
[71] While each of Ramlall, Buttazzoni and Dalloo had some form of participation in the conspiracy to import that may have differed one from to the other, each was a principal participant and not simply an intermediary or courier at the lower end of the hierarchy. Ramlall was the ultimate recipient of the pallets, it being his assignment to see that the cocaine was extracted from the pallets to thereafter facilitate distribution of the cocaine.
[72] Apart from his level of criminal culpability, his prospect for successful rehabilitation must also be considered and this was acknowledged on behalf of the Crown. Given his status as a first-time offender and his sincere remorse as expressed during the sentencing hearing, I believe that this offender has a genuine prospect of turning his life around and that his rehabilitation must also be considered in setting a just and fit sentence.
The Sentences
A. Buttazzoni
[73] Having determined his level of criminal culpability in this sophisticated importation conspiracy and cocaine trafficking, involving an extraordinary quantity of cocaine, I have concluded that a just and fit sentence for this offender is 17 years in custody, concurrent on both offences, less time spent in pre-sentence custody.
[74] This sentence meets the fundamental sentencing principles of denunciation and deterrence and reflects the aggravating factors outlined above.
[75] This offender was in custody from June 15, 2012 to December 17, 2015, namely 1281 days. He was then released on strict house arrest bail for a period of 40 days in order to spend time with his mother who was gravely ill and he returned to custody on January 27, 2016.
[76] On March 4, 2016, Tulloch J.A. granted Buttazzoni a release from custody on strict house arrest bail terms which required him to surrender back into custody on March 31, the 2016.
[77] He therefore has spent an additional 38 days in pre-sentence custody from January 27 to April 1, 2016, resulting in a total time in pre-sentence custody of 1319 days.
[78] On behalf of this offender, credit for time served in pre-sentence custody was sought at a ratio of 1.5:1 in accordance with the decision of the Supreme Court in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. Counsel for the Crown agreed that this was the appropriate credit.
[79] Thus the offender shall have credit for pre-sentence custody of 1979 days.
[80] Credit is also sought on behalf of the offender for the period of strict house arrest bail from December 17, 2015 to January 27, 2016 and from March 4 to March 31 , 2016 which totals 67 days. Exercising the discretion available to me as to credit for time spent on house arrest bail, I have determined that 1/5 credit is appropriate in the circumstances and thus an additional eight days credit is accorded to the offender. Thus, the total credit for pre-sentence time spent in custody and under house arrest bail is 1993 days or approximately 5 ½ years: see R. v. Downes (2006), 2006 3957 (ON CA), 79 O.R. (3d) 321 (C.A.).
[81] As to items seized from the offender, on his consent, he shall forfeit his cell phone and on the consent of the Crown his Apple laptop computer shall be returned to him.
[82] As to ancillary orders, a s. 109 weapons prohibition order shall issue for 10 years and life respectively, in accordance with the terms of that section. Further, given the nature of the offences and in keeping with the public interest, I order that the offender Buttazzoni provide a sample of his DNA.
B. Ramlall
[83] Although, he is a first-time offender, he played a significant role in the very serious offences of conspiracy to import cocaine and to traffic in that drug. While there are several mitigating circumstances related to this offender, his criminal culpability must be examined having regard to deterrence and denunciation as well as parity and proportionality. I have concluded that the just and fit sentence for this offender is 15 years in custody, less time served in pre-sentence custody and house arrest bail.
[84] This offender served 13 days in custody prior to his release on house arrest bail. After applying a 1.5:1 credit for pre-sentence custody he is therefore entitled to 20 days credit for time served.
[85] Following the granting of house arrest bail he was subject to strict terms where he was not allowed out of the home to attend work and at no time was he allowed outside the home without his surety. His house arrest bail terms were subsequently varied to allow for him to go to and from work. He complied with all of the terms imposed. Recognizing the impact on his freedom and the strict terms placed on him, I have concluded that a 25% credit for the time served under house arrest from June 29, 2012 to April 1, 2016 is appropriate: see R. v. Downes.
[86] The time spent by the offender under house arrest bail was from June 29, 2012 to the date of sentencing on April 1, 2016, namely 1372 days. I have therefore concluded that in recognition of time spent under house arrest bail this offender shall have a credit of 25%, namely 347 days.
[87] As to ancillary orders, a s. 109 weapons prohibition order shall issue for 10 years and life respectively, in accordance with the terms of that section. Further, given the nature of the offences, I order that the offender Ramlall provide a sample of his DNA.
DALEY RSJ.
Released: April 1, 2016
CITATION: R. v. Buttazzoni and Ramlall, 2016 ONSC 1287
COURT FILE NO.: CRIMJ(F) 643/13
DATE: 20160401
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMES BUTTAZZONI AND
RAMPERSAUD RAMLALL
REASONS FOR sentence
Daley RSJ.
Released: April 1, 2016