Court File and Parties
Court File No.: CR-15-90000500-0000 Date: 2016-05-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Kevine Brown
Counsel: Chris De Sa and Elizabeth Bellerose, for the Crown Kate Oja, for Kevine Brown
Heard: April 11, 2016
Before: R.F. Goldstein J.
Reasons for Judgment on Sentencing
1. Overview
[1] On March 21 2016 I convicted Mr. Brown of possession of heroin for the purpose of trafficking. He now comes before the court for sentencing.
2. The Facts
(a) Circumstances of the offence
[2] The facts are set out in detail in my reasons for judgment: R. v. Brown, 2016 ONSC 2001. Briefly, on February 12 2014 an undercover RCMP officer posing as a DHL courier conducted a controlled delivery of a package contained 1.133 kilograms of heroin. The heroin was hidden in 23 pairs of leather sandals. The package was from Tanzania and addressed to “Victor Mckenzie, 14 Rayoak Drive, Unit 706, in Toronto.” That was the home of Tracy Brown, the sister of Kevine Brown. Ms. Brown answered the buzzer to her apartment and accepted delivery of the package. She called her brother to tell him “Kevine, your package has arrived.” He told her to sign for it but to use a false name. She did not. She signed for it and used her own name and passport as identification. The RCMP then arrested her. They waited until Mr. Brown showed up at the apartment and then arrested him. He admitted to the police that he suspected that the package contained “some type of drug”. Although I had a doubt about whether Mr. Brown had actual knowledge that the package had heroin in it, I found beyond a reasonable doubt that he was wilfully blind. For the purposes of conviction and sentencing, wilful blindness is equivalent to actual knowledge.
[3] The heroin tested as 41% to 48% pure. It was agreed that the heroin was worth $271,992.00 and $369,655.00 if sold at the gram level, or between $339,990.00 and $566.650.00 if sold in hits of 0.1 grams. The price for a kilogram of heroin in the Greater Toronto Area in 2014 ranged from $80,000.00 to $110,000.00. Thus, if sold at the kilogram level, the value of the package was between $90,000.00 and $124,663.00.
(b) Circumstances of the offender
[4] Mr. Brown is 34 years old. He has a criminal record including six convictions as a youth, and six convictions as an adult. I think it is safe to say that these are convictions for mostly petty offences, such as theft under, mischief under, and possession of cocaine. He has been convicted of more serious offences such as breaking and entering and carrying a concealed weapon (for which he received a suspended sentence and probation in addition to 4 days of pre-sentence custody). His longest jail sentence to this point has been sixty days.
[5] Mr. Brown was born and raised in Toronto. According to the information provided to me, he had a pretty good childhood and was raised by his mother but began to have difficulties when he turned 14 to 15. He was sent to group home, which he described as a “difficult environment” and then to a foster home, which he found easier. He has a good relationship with his sister Nicole, who has been his primary surety.
[6] I have carefully reviewed the letters of support provided on behalf of Mr. Brown. Mr. Brown’s sister Nicole describes him as a caring son, brother, and uncle. She says that her family is aware that he has “strayed off the path” but they remain convinced that he is a good person and will move in a more positive direction. His friend Junia dos Santos also describes Mr. Brown as a kind and caring person who is reliable, dependable, generous, and thoughtful. He also describes Mr. Brown as very passionate about music. His girlfriend, Dawn Fleming, also wrote a letter of support. She describes Mr. Brown in similarly kind terms and finds him to be an honest and loving person.
[7] Mr. Brown has had a series of recurring health problems, including clinical depression for which he was treated in 1996. He suffered a gunshot wound in 2010. He was shot in the stomach. That has given rise many medical problems. His kidney function is at about 20%. He requires dialysis. His risk of kidney failure rises to 60-70% in 2 years and 90% in five years. He needs to follow a strict diet and be monitored regularly. No doubt the prison authorities will need to be made aware of his medical issues. Mr. Brown also attempted suicide after the shooting and was hospitalized for that as well.
[8] It appears that Mr. Brown does not have a significant employment history, although he has certainly made attempts to complete his education and improve himself. He is currently on ODSP. He is interested in a career in the recording arts and has made some progress towards being admitted to a program.
(c) Impact on the victim and the community
[9] Possession of heroin for the purposes of trafficking is a serious offence that has a devastating impact on users and the community generally. The Court of Appeal has consistently identified it as the most serious of all drugs. Although certainly our society has adopted a more humane approach to heroin addiction, which can be seen as a more general willingness to treat heroin addiction as a form of illness, that in no way applies to the commercial trafficking of heroin, especially commercial trafficking in large quantities. Commercial traffickers exploit the weaknesses of vulnerable and marginalized people for commercial gain.
3. Legal Parameters
[10] Possession of heroin for the purposes of sentencing carries a maximum sentence of life imprisonment pursuant to s. 5(2) and Schedule I of the Controlled Drugs and Substances Act.
4. Positions of the Crown and Defense
[11] The Crown’s position is that a 10-12 year sentence is appropriate. Ms. Oja says that the appropriate sentence 5-6 years in the penitentiary. She says that the proper range is 6-12 years, and that Mr. Brown is at the very low end of the range.
5. Case Law
[12] The Court of Appeal has recently canvassed the range of sentence for possession of a kilo of heroin for the purpose of trafficking. In R. v. Bains and Pannu, 2013 ONSC 1583, a jury convicted each accused of possession of one kilogram of heroin for the purpose of trafficking. They were identified by means of a tip and arrested while in a car. Just over one kilogram of heroin was found under the passenger seat. Neither accused had a criminal record and both had good working histories. Both were in their mid-thirties. None of the aggravating factors in s. 10 of the Controlled Drugs and Substances Act or s. 718.2 (a) of the Criminal Code applied. Neither were at the top end of a criminal organization but they were still engaged in serious commercial trafficking. The street value of the heroin was between $250,000.00 and $350,000.00. The wholesale value of the kilo was between $70,000.00 and $120,000.00. My colleague Dawson J., in his very thorough analysis of the case-law, concluded that trafficking large amounts of heroin, or possession of heroin for the purposes of trafficking, attracted a sentence of six to twelve years. He sentenced each to nine years. The sentence was upheld by the Court of Appeal: R. v. Bains and Pannu, 2015 ONCA 677. Watt J.A., in commenting on the range of sentence, noted that the 9 year sentence was at the mid-point of the range suggested by the accused, but that other authorities suggested that the range was nine to twelve years.
[13] The authority specifically mentioned by Watt J.A. was R. v. Shahnawaz (2000), 51 O.R. (3d) 29 (C.A.), a case that is instructive for reasons other than the range of sentence, as I mention later in these reasons. In that case, the accused sold heroin amounting to 650 grams to an police agent. The trial judge found that Mr. Shahnawaz was involved in heroin trafficking at a relatively low level, although the Court of Appeal took some issue with that finding. There was psychiatric evidence that Mr. Shahnawaz suffered from post-traumatic stress disorder as a result of being held by the Soviets for three years during their occupation of Afghanistan. The trial judge identified the appropriate range of sentence as nine to twelve years. In the result, however, she imposed a conditional sentence of 17 months. The Court of Appeal found that the trial judge put too much emphasis on Mr. Shahnawaz’s psychological condition and that the sentence was manifestly unfit. The Court substituted a sentence of six years.
[14] In R. v. Merelles, 2015 ONSC 5787 the accused was convicted of possession of heroin for the purpose of trafficking. He brought several pre-trial applications, which he lost. He then did not contest the prosecution’s evidence. The amount of heroin in his possession was just under one kilogram. He was a first offender with a good work history and supportive family. Low J. of this Court canvassed the case law and indicated that the range of sentence for an offence of this nature was eight to twelve years. Low J. sentenced him to ten years.
[15] In R. v. Moulton, 2013 ONSC 2555 the accused trafficked 440 grams of heroin to an undercover officer in two sales. Mr. Moulton had a significant criminal record. He brought an application to stay proceedings on the grounds of entrapment, which he lost. He testified during the hearing to a long career of dealing drugs, including marijuana, cocaine, and ecstasy. My colleague Trotter J. gave him little credit for pleading guilty, considering that he ran a lengthy entrapment hearing. Given his high degree of moral culpability, Trotter J. sentenced him to eight years.
[16] Ms. Oja points to cases that, she says, justify a lower range of sentence. For example, in R. v. Gammarco and Burchell, [2012] O.J. No. 1053 (Sup.Ct.) the RCMP conducted a controlled delivery of a package containing 3.848 grams of heroin to Mr. Giammarco. He was immediately arrested. The police then exchanged texts with Mr. Burchell, pretending to be Mr. Giammarco. Mr. Burchell came to pick up the package and was immediately arrested as well. Hourigan J. (as he then was) sentenced Mr. Burchell to six years and Mr. Giammarco to five years imprisonment. The sentences were upheld on appeal: R. v. Giammarco and Burchell, [2014] ONCA 242. In my view, this case is distinguishable. Hourigan J. gave a very significant discount to both accused based on their cooperation with the police.
[17] Although there are cases where courts have sentenced a trafficker of large amounts of heroin to sentences below eight years, in my view those are cases where exceptional circumstances – such as providing assistance to the police – come into play. In my view, and with great respect to those with the opposing view, I cannot see how the range of sentence for trafficking in a kilogram or more of heroin can start at anything less than eight years absent exceptional circumstances.
6. Mitigating and Aggravating Factors
[18] None of the aggravating factors set out in s. 10(1) of the Controlled Drugs and Substances Act is present here. Neither are any of the aggravating factors set out in s. 718.2 (a) of the Criminal Code. This is similar to the situation in Bains and Pannu, as mentioned above.
[19] There are three main aggravating factors here. The first is the very large amount of heroin, just over one kilogram. The other major aggravating factor is this: Mr. Brown was quite willing to put his sister at great risk in this venture. He instructed his sister to sign for a package containing a large quantity of drugs. As I found at trial, while he may not have known exactly what was in the package, he was wilfully blind to the nature and contents of it. And that, of course, is equivalent in law to actual knowledge. In terms of human relationships, that makes this factor in some ways even worse. As he himself admitted, he was very suspicious of the fact that the package contained drugs. He then instructed his sister to sign for it using a false name, and did not come for the package until several hours later. Arguably, he was using his sister, of all people, to insulate him. He must have known, given her previous conviction for importing cocaine (as compared to his own more minor criminal record) that if the police became aware of the package then suspicion would naturally have fallen upon her. I find that to be an extraordinarily serious aggravating factor.
[20] The third main aggravating factor is Mr. Brown’s criminal record, although, as I have mentioned, Mr. Brown is more of a petty criminal than a Lex Luthor. I do not find it to be an overly significant aggravating factor compared to the other two.
[21] There are two main mitigating factors are here. First, Mr. Brown suffers from significant health problems, as I have already mentioned. The other mitigating factor is that Mr. Brown enjoys the support of a wide circle of friends and family, all of whom mentioned his kind nature and good heart. While I certainly take those people at their word, considering that this is a man who was willing to place his sister at enormous risk, I wonder at the end of the day how well they really know him.
7. Principles of Sentencing
[22] The most important principle of sentencing in major drug cases is general deterrence. Commercial drug trafficking at a high level involves a calculation of risk and reward. Commercial drug traffickers must – and generally do – understand that the prospect of a severe punishment is a cost of doing business. Although I do take into account the principles of rehabilitation and specific deterrence in this case, general deterrence must play the leading role.
8. Ancillary Orders
[23] There will be a s. 109 order for life. There will also be an order to take a sample of Mr. Brown’s DNA. Possession of a schedule I substances for the purpose of trafficking is a secondary designated offence. Given Mr. Brown’s criminal record, and the extraordinarily serious nature of this particular crime, I find that in this case the public interest in taking a DNA sample outweighs Mr. Brown’s right to privacy.
9. Final Decision
[24] I am aware of Mr. Brown’s health problems. I recognize that serving a long sentence will be a hardship for him. It is the responsibility of the correctional authorities to care for him in custody: Shahnawaz, at para. 34.
[25] I must respectfully disagree with the notion that Mr. Brown should receive a significantly lesser sentence than that set out in Bains and Pannu because his involvement was at a lower level. There is no evidence that Mr. Brown was the driving force behind a scheme to traffic a kilogram of heroin. There is no evidence one way or the other exactly what his role was, but it seems likely that he was nothing more than a mere “post box”, passively receiving the package of heroin. That said, a mere “post box” is critical to the scheme. High-level sophisticated drug traffickers require low-level drug traffickers to carry on business.
[26] In my respectful view, Mr. Brown’s culpability is no less simply because he was a relatively unsophisticated low-level participant. Without people like Mr. Brown, heroin trafficking in significant amounts could not take place. I also don’t think it matters that Mr. Brown was only wilfully blind as to the contents of the package: R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609. Although I appreciate that this is not an importing case, the following comments in R. v. Cunningham (1996), 27 O.R. (3d) 786 (C.A.) are directly on point:
There can be no doubt that commercial traffickers rely heavily on couriers to facilitate their deadly trade. That being so, it falls to the courts to warn would-be couriers, in no uncertain terms, that they will pay a heavy price for choosing to import large quantities of hard drugs for quick personal gain.
[27] In coming to the appropriate sentence, I take into account Mr. Brown’s health issues and his culpability. I find that his rather petty criminal record, while an aggravating factor, is not especially important when considered against the amount of time that he will receive. To some degree, his health problems and his criminal record more or less balance each other out. I also take into account that the key principles of sentencing in drug cases are general and specific deterrence.
[28] I also give significant weight to the fact that Mr. Brown was prepared to put his sister at great risk. Even if he operated at a lower level than in the Bains and Pannu case, surely this serious aggravating factor puts his conduct in at least that range, and arguably higher given his criminal record.
[29] In my view, Mr. Brown should receive a sentence within the range identified by the Court of Appeal in Shahnawaz and commented on in Bains and Pannu.
[30] I therefore sentence Mr. Brown to nine years in the penitentiary. Mr. Brown served 414 days in custody. Mr. Brown is entitled to credit at the rate of 1.5:1. That translates to 621 days credit, or 21 months. I will also give him credit for two months for the strict house arrest bail that he has been on for just over one year. Thus, his actual sentence will be seven years and 1 month, or 85 months in light of pretrial custody.
[31] Ms. Oja asks that I recommend that Mr. Brown be incarcerated as close to Toronto as possible. I will will endorse the warrant of committal to that effect.
R.F. Goldstein J. Released: May 6, 2016